[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
[Proposed Rules]
[Pages 11373-11379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04118]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2021-0672; FRL-9558-01-R1]


Air Plan Approval; New Hampshire; Boston-Manchester-Portsmouth 
Area Second 10-Year Limited Maintenance Plan for 1997 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Clean Air Act (CAA), the Environmental 
Protection Agency (EPA) is proposing to approve a state implementation 
plan (SIP) revision submitted by the State of New Hampshire. On July 
29, 2021, the State submitted its 1997 ozone national ambient air 
quality standards (NAAQS) Limited Maintenance Plan (LMP) for the 
Boston-Manchester-Portsmouth (Portsmouth) area. EPA is proposing to 
approve the Portsmouth area LMP because it provides for the maintenance 
of the 1997 ozone NAAQS through the end of the second 10-year portion 
of the

[[Page 11374]]

maintenance period. The effect of this action will be to make certain 
commitments related to maintenance of the 1997 ozone NAAQS in the 
Portsmouth maintenance area part of the New Hampshire SIP and therefore 
federally enforceable.

DATES: Written comments must be received on or before March 31, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT: Eric Rackauskas, Air Quality Branch, 
U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office 
Square--Suite 100, (Mail code 05-2), Boston, MA 02109--3912, tel. (617) 
918-1628, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Summary of EPA's Action
II. Background
III. New Hampshire's SIP Submittal
IV. EPA's Evaluation of New Hampshire's SIP Submittal
    A. Procedural Requirements
    B. Substantive Requirements
    1. Attainment Emissions Inventory
    2. Maintenance Demonstration
    a. Evaluation of ozone air quality levels.
    b. Stability of ozone levels.
    3. Monitoring Network and Verification of Continued Attainment
    4. Contingency Plan
V. Transportation Conformity
VI. Proposed Action and Public Comment
VII. Statutory and Executive Order Reviews

I. Summary of EPA's Action

    Under the CAA, EPA is proposing to approve a Limited Maintenance 
Plan (LMP) for the Boston-Manchester-Portsmouth (Portsmouth) 
maintenance area for the 1997 ozone NAAQS, submitted as a revision to 
the New Hampshire State Implementation Plan (SIP) on July 29, 2021. The 
Portsmouth area 8-hour ozone nonattainment area includes 52 cities and 
towns with a combined population of 729,071 in Hillsborough, Merrimack, 
Rockingham and Strafford counties, in the southeastern-most portion of 
the state. On June 15, 2004, the Portsmouth area was designated as 
nonattainment for the 1997 ozone NAAQS. On March 4, 2013, the area was 
redesignated to attainment with that standard.
    The Portsmouth area's LMP for the 1997 ozone NAAQS submitted by the 
New Hampshire Department of Environmental Services (DES) is designed to 
maintain the 1997 ozone NAAQS within these areas through the end of the 
second ten-year period of the maintenance period. We are proposing to 
approve the plan because it meets all applicable requirements under CAA 
sections 110 and 175A.

II. Background

    Ground-level ozone is formed when oxides of nitrogen 
(NOX) and volatile organic compounds (VOC) react in the 
presence of sunlight. These two pollutants, referred to as ozone 
precursors, are emitted by many types of pollution sources, including 
on- and off-road motor vehicles and engines, power plants and 
industrial facilities, and smaller area sources such as lawn and garden 
equipment and paints. Scientific evidence indicates that adverse public 
health effects occur following exposure to ozone, particularly in 
children and adults with lung disease. Breathing air containing ozone 
can reduce lung function and inflame airways, which can increase 
respiratory symptoms and aggravate asthma or other lung diseases.
    Ozone exposure also has been associated with increased 
susceptibility to respiratory infections, medication use, doctor and 
emergency department visits and hospital admissions for individuals 
with lung disease. Ozone exposure also increases the risk of premature 
death from heart or lung disease. Children are at increased risk from 
exposure to ozone because their lungs are still developing and they are 
more likely to be active outdoors, which increases their exposure.\1\
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    \1\ See ``Fact Sheet, Proposal to Revise the National Ambient 
Air Quality Standards for Ozone,'' January 6, 2010 and 75 FR 2938 
(January 19, 2010).
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    In 1979, under section 109 of the CAA, EPA established primary and 
secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged 
over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997, 
EPA revised the primary and secondary NAAQS for ozone to set the 
acceptable level of ozone in the ambient air at 0.08 ppm, averaged over 
an 8-hour period. 62 FR 38856 (July 18, 1997).\2\ The EPA set the 8-
hour ozone NAAQS based on scientific evidence demonstrating that ozone 
causes adverse health effects at lower concentrations and over longer 
periods of time than was understood when the pre-existing 1-hour ozone 
NAAQS was set. EPA determined that the 8-hour standard would be more 
protective of human health, especially for children and adults who are 
active outdoors, and individuals with a preexisting respiratory 
disease, such as asthma.
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    \2\ In March 2008, EPA completed another review of the primary 
and secondary ozone standards and tightened them further by lowering 
the level for both to 0.075 ppm. 73 FR 16436 (March 27, 2008). 
Additionally, in October 2015, EPA completed a review of the primary 
and secondary ozone standards and tightened them by lowering the 
level for both to 0.70 ppm. 80 FR 65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, EPA is required 
by the CAA to designate areas throughout the nation as attaining or not 
attaining the NAAQS. On April 15, 2004, EPA designated the Southeast 
New Hampshire area as nonattainment for the 1997 ozone NAAQS, and the 
designations became effective on June 15, 2004. Under the CAA, states 
are also required to adopt and submit SIPs to implement, maintain, and 
enforce the NAAQS in designated nonattainment areas and throughout the 
state.
    When a nonattainment area has three years of complete, certified 
air quality data that has been determined to attain the 1997 ozone 
NAAQS, and the area

[[Page 11375]]

has met other required criteria described in section 107(d)(3)(E) of 
the CAA, the state can submit to the EPA a request to be redesignated 
to attainment, referred to as a ``maintenance area''.\3\ One of the 
criteria for redesignation is to have an approved maintenance plan 
under CAA section 175A. The maintenance plan must demonstrate that the 
area will continue to maintain the standard for the period extending 10 
years after redesignation and must contain such additional measures as 
necessary to ensure maintenance and such contingency provisions as 
necessary to assure that violations of the standard will be promptly 
corrected. At the end of the eighth year after the effective date of 
the redesignation, the state must also submit a second maintenance plan 
to ensure ongoing maintenance of the standard for an additional ten 
years. CAA section 175A.
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    \3\ Section 107(d)(3)(E) of the CAA sets out the requirements 
for redesignation. They include attainment of the NAAQS, full 
approval under section 110(k) of the applicable SIP, determination 
that improvement in air quality is a result of permanent and 
enforceable reductions in emissions, demonstration that the state 
has met all section 110 and part D requirements, and a fully 
approved maintenance plan under CAA section 175A.
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    EPA has published long-standing guidance for states on developing 
maintenance plans.\4\ The Calcagni memo provides that states may 
generally demonstrate maintenance by either performing air quality 
modeling to show that the future mix of sources and emission rates will 
not cause a violation of the NAAQS or by showing that future emissions 
of a pollutant and its precursors will not exceed the level of 
emissions during a year when the area was attaining the NAAQS (i.e., 
attainment year inventory). EPA clarified in three subsequent guidance 
memoranda that certain nonattainment areas could meet the CAA section 
175A requirement to provide for maintenance by demonstrating that the 
area's design value \5\ was well below the NAAQS and that the 
historical stability of the area's air quality levels showed that the 
area was unlikely to violate the NAAQS in the future.\6\ EPA refers to 
this streamlined demonstration of maintenance as a Limited Maintenance 
Plan (LMP). EPA has interpreted CAA section 175A as permitting this 
option because section 175A of the Act defines few specific content 
requirements for maintenance plans, and in EPA's experience 
implementing the various NAAQS, areas that qualify for an LMP, that 
have an approved LMP, have rarely, if ever, experienced subsequent 
violations of the NAAQS. As noted in the LMP guidance memoranda, states 
seeking an LMP must still submit the other maintenance plan elements 
outlined in the Calcagni memo, including: An attainment emissions 
inventory, provisions for the continued operation of the ambient air 
quality monitoring network, verification of continued attainment, and a 
contingency plan in the event of a future violation of the NAAQS. 
Moreover, states seeking an LMP must still submit their section 175A 
maintenance plan as a revision to their state implementation plan, with 
all attendant notice and comment procedures.
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    \4\ Calcagni, John, Director, Air Quality Management Division, 
EPA Office of Air Quality Planning and Standards, ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' September 
4, 1992 (Calcagni memo).
    \5\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
    \6\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001. Copies of these guidance memoranda can be 
found in the docket for this proposed rulemaking.
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    While the LMP guidance memoranda were originally written with 
respect to certain NAAQS,\7\ EPA has extended the LMP interpretation of 
section 175A to other NAAQS and pollutants not specifically covered by 
the previous guidance memos.\8\ In this case, EPA is proposing to 
approve New Hampshire's LMP because the State has made a showing, 
consistent with EPA's prior LMP guidance, that the area's ozone 
concentrations are well below the 1997 ozone NAAQS and have been 
historically stable. New Hampshire DES has submitted this LMP for the 
Southeast New Hampshire 1997 ozone NAAQS areas to fulfill the second 
maintenance plan requirement in the Act. Our evaluation of the 
Southeast New Hampshire area 1997 ozone NAAQS LMP is presented below.
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    \7\ The prior memoranda addressed: unclassifiable areas under 
the 1-hour ozone NAAQS, nonattainment areas for the PM10 
(particulate matter with an aerodynamic diameter less than 10 
microns) NAAQS, and nonattainment areas for the carbon monoxide 
NAAQS.
    \8\ See, e.g., 79 FR 41900 (July 18, 2014) (Approval of second 
ten-year LMP for Grant County 1971 SO2 maintenance area).
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    On March 2, 2012, New Hampshire DES submitted to EPA a request to 
redesignate the Portsmouth nonattainment areas to attainment for the 
1997 ozone NAAQS. New Hampshire DES also provided EPA with additional 
information on September 21, 2012. This submittal included a plan to 
provide for maintenance of the 1997 ozone NAAQS in the Portsmouth 
nonattainment area through 2012 as a revision to the New Hampshire SIP. 
EPA approved the maintenance plan for the Portsmouth nonattainment area 
and the State's request to redesignate the Portsmouth nonattainment 
area to attainment for the 1997 ozone NAAQS on January 31, 2013 (78 FR 
6741).
    In conjunction with our approval of the Portsmouth nonattainment 
areas 1997 ozone Maintenance Plan covering the first 10-year 
maintenance period, we approved various regulatory provisions adopted 
by the State providing for the continued implementation of the control 
measures relied upon for attainment, and for the authority for state 
agencies to implement contingency measures should the area violate the 
standard again during this period.
    Under CAA section 175A(b), states must submit a revision to the 
first maintenance plan eight years after redesignation to provide for 
maintenance of the NAAQS for ten additional years following the end of 
the first 10-year period. EPA's final implementation rule for the 2008 
ozone NAAQS revoked the 1997 ozone NAAQS and stated that one 
consequence of revocation was that areas that had been redesignated to 
attainment (i.e., maintenance areas) for the 1997 standard no longer 
needed to submit second 10-year maintenance plans under CAA section 
175A(b).\9\ In South Coast Air Quality Management District v. EPA, the 
D.C. Circuit vacated EPA's interpretation that second maintenance plans 
were not required for 1997 NAAQS maintenance areas because of the 
revocation of that standard. South Coast, 882 F.3d 1138 (D.C. Cir. 
2018). Thus, states with 1997 ozone NAAQS maintenance areas still must 
comply with the requirement to submit maintenance plans for the second 
maintenance period. Accordingly, on July 29, 2021, New Hampshire 
submitted second maintenance plans for the Portsmouth area that show 
that the area is expected to remain in attainment with the 1997 ozone 
NAAQS through the last year of the second 10-year maintenance period, 
i.e., through the end of the full 20-year maintenance period.
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    \9\ See 80 FR 12315 (March 6, 2015).
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III. New Hampshire's SIP Submittal

    On July 29, 2021, New Hampshire DES submitted the Portsmouth area 
LMP to the EPA as a revision to the New Hampshire SIP. New Hampshire 
DES

[[Page 11376]]

also provided additional information to EPA on December 23, 2021. The 
submittal includes the LMP and attachments. The plan and attachments 
include air quality data, emission inventory information, air quality 
monitoring information, and documentation of notice, hearing, and 
public participation.

IV. EPA's Evaluation of New Hampshire's SIP Submittal

A. Procedural Requirements

    CAA section 110(a)(2) and 110(l) require revisions to a SIP to be 
adopted by a state after reasonable notice and public hearing. EPA has 
promulgated specific procedural requirements for SIP revisions in 40 
CFR part 51, subpart F. These requirements include publication of a 
notice by prominent advertisement in the relevant geographic area of 
the proposed SIP revisions, at least a 30-day public comment period, 
and an opportunity for a public hearing.
    New Hampshire DES published a notice of a 30-day comment period and 
notice for a public hearing for the LMP for the Portsmouth maintenance 
areas on the State's website. New Hampshire DES received no public 
comments, either written or oral. New Hampshire DES then submitted the 
Portsmouth area 1997 Ozone NAAQS LMP to EPA as a revision to the New 
Hampshire SIP. The process followed by New Hampshire DES in adopting 
the Portsmouth area 1997 Ozone NAAQS LMP complies with the procedural 
requirements for SIP revisions under CAA section 110 and EPA's 
implementing regulations.

B. Substantive Requirements

    EPA has reviewed the Portsmouth maintenance area 1997 Ozone NAAQS 
LMP, which is designed to maintain the 1997 ozone NAAQS within the 
Portsmouth area through the end of the 20-year period beyond 
redesignation, as required under CAA section 175A(b). The following is 
a summary of EPA's interpretation of the requirements \10\ and EPA's 
evaluation of how each requirement is met.
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    \10\ See Calcagni memo.
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1. Attainment Emissions Inventory
    For maintenance plans, a state should develop a comprehensive, 
accurate inventory of actual emissions for an attainment year to 
identify the level of emissions which is sufficient to maintain the 
NAAQS. A state should develop this inventory consistent with EPA's most 
recent guidance on emissions inventory development. For ozone, the 
inventory should be based on emissions of VOCs and NOX, as 
these pollutants are precursors to ozone formation. The Portsmouth area 
LMP includes an ozone attainment inventory for the Portsmouth area that 
reflects total emissions for every National Emissions Inventory (NEI) 
from 1996-2017. Tables 1 and 2 below contain the NEI data submitted by 
the State. The NEI is updated every three years. Additionally, though 
not technically required for a LMP, the tables include modeled 
emissions projections for 2023 and 2028. EPA notes that the modeled VOC 
emission estimates show a slight increase compared to actual measured 
emissions from 2017 NEI data, with a 12% increase from 2017 to 2023 for 
area sources and a 7% increase in non-road mobile sources for this same 
time. These are modeled projections, not actual emissions, and do not 
interfere with the State demonstrating an overall downward trend in 
total emissions during the maintenance period which continues in 2028.

                                                              Table 1 Nitrogen Oxides (NOX)
                                                                     [tons per year]
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                      Category                          1996      1999      2002      2005      2008      2011      2014      2017      2023      2028
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Point...............................................    20,690    16,170     9,786    12,068     6,969     5,887     4,343     2,691     3,362     2,975
Area................................................    13,506     5,724    11,259    11,259     6,874     5,758    11,894    10,544     4,244     3,900
Non-Road Mobile.....................................    10,265     8,547    10,015     9,246     7,116     6,532     5,565     4,262     4,808     4,564
On-Road Mobile......................................    45,984    41,873    38,799    29,750    29,308    17,243    16,292    11,036     6,355     4,539
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................    90,444    72,314    69,859    62,323    50,267    35,421    38,093    28,533    18,769    15,978
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                                                        Table 2 Volatile Organic Compounds (VOC)
                                                                     [tons per year]
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                      Category                          1996      1999      2002      2005      2008      2011      2014      2017      2023      2028
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Point...............................................     5,421     2,991     1,599     1,104       783       652       441       757       637       625
Area................................................    38,766    55,921    61,554    36,105    23,335    20,352    18,560    17,017    19,029    18,955
Non-Road Mobile.....................................    18,177    18,468    21,950    21,255    19,415    15,094    12,598     8,510     9,197     8,812
On-Road Mobile......................................    26,419    24,511    21,681    18,927    11,811     9,417     9,168     6,804     4,846     3,716
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................    88,783   101,891   106,784    77,391    55,344    45,515    40,767    33,088    33,709    32,108
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    Based on our review of the methods, models, and assumptions used by 
New Hampshire DES to develop the VOC and NOX estimates, we 
find that the Portsmouth area 1997 8-Hour Ozone NAAQS LMP includes 
comprehensive, reasonably accurate inventories of actual ozone 
precursor emissions and conclude that the plan's inventories are 
acceptable for the purposes of a subsequent maintenance plan under CAA 
section 175A(b).
2. Maintenance Demonstration
    The maintenance plan demonstration requirement is considered to be 
satisfied in a LMP if the state can provide sufficient weight of 
evidence indicating that air quality in the area is well below the 
level of the standard, that past air quality trends have been shown to 
be stable, and that the probability of the area experiencing a 
violation over the second 10-year maintenance period is low.\11\ These 
criteria are evaluated below with regard to the Portsmouth area.
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    \11\ ``Limited Maintenance Plan Option for Nonclassifiable Ozone 
Nonattainment Areas'' from Sally L. Shaver, Office of Air Quality 
Planning and Standards (OAQPS), dated November 16, 1994; ``Limited 
Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas'' 
from Joseph Paisie, OAQPS, dated October 6, 1995; and ``Limited 
Maintenance Plan Option for Moderate PM10 Nonattainment 
Areas'' from Lydia Wegman, OAQPS, dated August 9, 2001.
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    a. Evaluation of ozone air quality levels.

[[Page 11377]]

    To attain the 1997 ozone NAAQS, the three-year average of the 
fourth-highest daily maximum 8-hour average ozone concentrations 
(design value) at each monitor within an area must not exceed 0.08 ppm. 
Based on the rounding convention described in 40 CFR part 50, Appendix 
I, the standard is attained if the design value is 0.084 ppm or below. 
Consistent with prior guidance, EPA believes that if the most recent 
air quality design value for the area is at a level that is well below 
the NAAQS (e.g., below 85% of the standard, or in this case below 0.071 
ppm), then EPA considers the state to have met the section 175A 
requirement for a demonstration that the area will maintain the NAAQS 
for the requisite period.\12\ Such a demonstration assumes continued 
applicability of PSD requirements, any control measures already in the 
SIP, and that Federal measures will remain in place through the end of 
the second 10-year maintenance period, absent a showing consistent with 
section 110(l) that such measures are not necessary to assure 
maintenance.\13\
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    \12\ This LMP guidance can found here: https://www.epa.gov/sites/default/files/2016-06/documents/1995lmp-co.pdf.
    \13\ As part of the Ozone Transport Region (OTR), the Portsmouth 
area is also subject to additional permitting requirements through 
nonattainment new source review (NNSR).
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    Table 3 presents the design values for each monitor in the 
Portsmouth area over the 2017-2019 period. As shown in Table 3, all 
sites have been well below the level of the 1997 ozone NAAQS and the 
most current design value is below the level of 85% of the NAAQS, 
consistent with prior LMP guidance.

                                     Table 3 Ozone NAAQS Design Values (DV)
                                            [Parts per billion, ppb]
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                                                                   Hillsborough      Merrimack      Rockingham
                       Design value period                            County          County          County
----------------------------------------------------------------------------------------------------------------
2004-2006.......................................................              75              72              75
2005-2007.......................................................              76              72              77
2006-2008.......................................................              73              70              76
2007-2009.......................................................              71              68              74
2008-2010.......................................................              68              66              69
2009-2011.......................................................              68              65              66
2010-2021.......................................................              68              65              66
2011-2013.......................................................              67              64              67
2012-2014.......................................................              68              63              68
2013-2015.......................................................              66              62              66
2014-2016.......................................................              66              61              66
2015-2017.......................................................              65              63              65
2016-2018.......................................................              65              62              65
2017-2019.......................................................              62              60              62
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    Therefore, the Portsmouth area demonstration that the areas will 
maintain the NAAQS based on the long record of monitored ozone 
concentrations that attain the NAAQS, together with the continuation of 
existing VOC and NOX emissions control programs, adequately 
provide for the maintenance of the 1997 ozone NAAQS in the Portsmouth 
maintenance areas through the second 10-year maintenance period (and 
beyond).
    b. Stability of ozone levels.
    As discussed above, the Portsmouth area has maintained air quality 
well below the 1997 ozone NAAQS over the past ten years. Additionally, 
the design value data shown within Table 2 illustrates that ozone 
levels have been relatively stable over this timeframe, with a modest 
downward trend. This downward trend in ozone levels, coupled with the 
relatively small year-over-year variation in ozone design values, makes 
it reasonable to conclude that the Portsmouth area will not exceed the 
1997 ozone NAAQS during the second 10-year maintenance period.
    After New Hampshire completed the LMP for the Portsmouth area, EPA 
released the final 2018-2020 ozone design values. These values show a 
continued downward trend in ozone levels, with a 2018-2020 design value 
for the Portsmouth area of 0.063 ppm.\14\
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    \14\ For EPA's full design value report please see https://www.epa.gov/air-trends/air-quality-design-values.
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3. Monitoring Network and Verification of Continued Attainment
    EPA periodically reviews the ozone monitoring network that New 
Hampshire DES operates and maintains, in accordance with 40 CFR part 
58. This network is consistent with the ambient air monitoring network 
assessment and plan developed by New Hampshire DES that is submitted 
annually to EPA and that follows a public notification and review 
process. EPA has reviewed and approved the 2020 Ambient Air Monitoring 
Network Assessment and Plan.
    To verify the attainment status of the area over the maintenance 
period, the maintenance plan should contain provisions for continued 
operation of an appropriate, EPA-approved monitoring network in 
accordance with 40 CFR part 58. As noted above, New Hampshire DES's 
monitoring network in the Portsmouth area has been approved by EPA in 
accordance with 40 CFR part 58, and the area has committed to continue 
to maintain a network in accordance with EPA requirements. For further 
details on monitoring, the reader is referred to the ``2020/2021 New 
Hampshire DES's Annual Network Plan'' found at https://www.des.nh.gov/sites/g/files/ehbemt341/files/documents/r-ard-20-03.pdf, as well as 
EPA's approval letter for the 2020/2021 Annual Network Plan, which can 
be found in the docket for today's action. We believe New Hampshire's 
monitoring network is adequate to verify continued attainment of the 
1997 ozone NAAQS in the Portsmouth area.
4. Contingency Plan
    Section 175A(d) of the Act requires that a maintenance plan include 
contingency provisions. The purpose of such contingency provisions is 
to prevent future violations of the NAAQS or promptly remedy any NAAQS 
violations that might occur during the maintenance period. These 
contingency measures do not have to be fully adopted regulations at the 
time of redesignation. However, the

[[Page 11378]]

contingency plan is an enforceable part of the SIP and should ensure 
that the contingency measures are adopted expeditiously once they are 
triggered by a future violation of the NAAQS or some other trigger. The 
contingency plan should identify the measures to be expeditiously 
adopted and provide a schedule and procedure for adoption and 
implementation of the measures. The state should also identify specific 
triggers which will be used to determine when the contingency measures 
need to be implemented. While a violation of the NAAQS is an acceptable 
trigger, states may wish to choose a violation action level below the 
NAAQS as a trigger, such as an exceedance of the NAAQS. By taking 
action promptly after an exceedance occurs, a state may be able to 
prevent a violation of the NAAQS. In the unlikely event of a violation, 
New Hampshire would be required to adopt and enforce new measures to 
remedy the violation. Possible contingency measures identified by New 
Hampshire include the following:
     NOX controls for industrial, commercial, and 
institutional (ICI) boilers.
     VOC controls for emulsified and cutback asphalt paving.
     VOC controls for consumer products.
    EPA proposes to find that New Hampshire's contingency measures, as 
well as the commitment to continue implementing any SIP requirements, 
satisfy the pertinent requirements of CAA section 175A.

V. Transportation Conformity

    Transportation conformity is required by section 176(c) of the CAA. 
Conformity to a SIP means that transportation activities will not 
produce new air quality violations, worsen existing violations, or 
delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's 
conformity rule at 40 CFR part 93 requires that transportation plans, 
programs and projects conform to SIPs and establish the criteria and 
procedures for determining whether or not they conform. The conformity 
rule generally requires a demonstration that emissions from the 
Regional Transportation Plan (RTP) and the Transportation Improvement 
Program (TIP) are consistent with the motor vehicle emissions budget 
(MVEB) contained in the control strategy SIP revision or maintenance 
plan (40 CFR 93.101, 93.118, and 93.124). A MVEB is defined as ``that 
portion of the total allowable emissions defined in the submitted or 
approved control strategy implementation plan revision or maintenance 
plan for a certain date for the purpose of meeting reasonable further 
progress milestones or demonstrating attainment or maintenance of the 
NAAQS, for any criteria pollutant or its precursors, allocated to 
highway and transit vehicle use and emissions (40 CFR 93.101).
    Under the conformity rule, LMP areas may demonstrate conformity 
without a regional emission analysis (40 CFR 93.109(e)).
    All actions that would require transportation conformity 
determinations for the Portsmouth ozone maintenance areas under our 
transportation conformity rule provisions are considered to have 
already satisfied the regional emissions analysis and ``budget test'' 
requirements in 40 CFR 93.118 as a result of an adequacy finding for 
the LMP or approval of the LMP. (See 69 FR 40004, 40063 (July 1, 
2004).)
    However, because LMP areas are still maintenance areas, certain 
aspects of transportation conformity determinations still will be 
required for transportation plans, programs and projects. Specifically, 
for such determinations, RTPs, TIPs and transportation projects still 
will have to demonstrate that they are fiscally constrained (40 CFR 
93.108), meet the criteria for consultation (40 CFR 93.105 and 40 CFR 
93.112) and Transportation Control Measure (TCM) implementation in the 
conformity rule provisions (40 CFR 93.113). Additionally, conformity 
determinations for RTPs and TIPs must be determined no less frequently 
than every four years, and conformity of plan and TIP amendments and 
transportation projects is demonstrated in accordance with the timing 
requirements specified in 40 CFR 93.104. In addition, in order for 
projects to be approved, they must come from a currently conforming RTP 
and TIP (40 CFR 93.114 and 93.115). EPA meets monthly with the New 
Hampshire Department of Transportation, New Hampshire DES, the Federal 
Highway Administration (FHWA), the Federal Transit Authority (FTA), and 
other partners to ensure the conformity guidelines in the New Hampshire 
SIP are followed (see 78 FR 71504 for EPA's most recent approval of New 
Hampshire's ``Conformity'' regulation).

VI. Proposed Action and Public Comment

    Under sections 110(k) and 175A of the CAA and for the reasons set 
forth above, EPA is proposing to approve the second 10-year LMP for the 
Portsmouth maintenance areas for the 1997 Ozone NAAQS, submitted by New 
Hampshire DES on February 18, 2020, as a revision to the New Hampshire 
SIP. We are proposing to approve the Portsmouth area LMP because we 
find that it includes an acceptable update of the various elements of 
the 1997 ozone NAAQS Maintenance Plan approved by EPA for the first 10-
year period (including emissions inventory, assurance of adequate 
monitoring and verification of continued attainment, and contingency 
provisions), and essentially carries forward all of the control 
measures and contingency provisions relied upon in the earlier plan.
    We also find that ozone design value for the Portsmouth area is 
sufficiently below the 1997 ozone standard to allow the State to submit 
a LMP and that the Portsmouth area 1997 Ozone NAAQS LMP adequately 
demonstrates maintenance of the 1997 8-hour ozone NAAQS through 
documentation of monitoring data showing maximum 1997 8-hour ozone 
levels well below the NAAQS and continuation of existing control 
measures. We believe the Portsmouth area 1997 Ozone LMP to be 
sufficient to provide for maintenance of the 1997 ozone NAAQS in the 
Portsmouth area over the second 10-year maintenance period (though 
2026) and to thereby satisfy the requirements for such a plan under CAA 
section 175A(b).
    EPA is proposing to approve the Portsmouth Area's Second 10-Year 
Limited Maintenance Plan for 1997 Ozone NAAQS into the New Hampshire 
SIP. EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. These comments will be considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to this 
proposed rule by following the instructions listed in the ADDRESSES 
section of this Federal Register.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:

[[Page 11379]]

     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 18, 2022.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2022-04118 Filed 2-28-22; 8:45 am]
BILLING CODE 6560-50-P


