As most have heard by now, the Maine DEP has issued a proposal to eliminate the ozone nonattainment new source review (NNSR) requirements in areas of the State that attain the ozone standard. That proposal generated a number of newspaper articles highlighting opposition to the DEP's proposal by environmental advocacy groups and other opponents of Governor LePage. What you may not know, because it has received scant press, is that in the August 5, 2013 Federal Register, the U.S. EPA published a notice of its intent to approve Maine's proposal.
EPA is accepting public comments on its proposed approval of Maine's ozone NNSR plan through September 4, 2013. Maine DEP will be holding a public hearing at 1:00 pm on September 10, 2013, to receive comments on its proposal.
Under the Clean Air Act ("Act"), certain new sources and modifications of ozone precursors (NOx and/or VOCs) located in ozone nonattainment areas must meet Lowest Achievable Emission Rate (LAER) requirements and obtain offsets to get a permit to construct (NNSR requirements). Under the Act, the NNSR requirements apply throughout the thirteen states in the Ozone Transport Region (OTR), including Maine - even in areas that meet the ozone standard.
Over the years, EPA has promulgated three ozone standards that are successively more stringent. Pursuant to the Act, EPA has required to set the standards at a level that will be protective of public health and the environment, including for sensitive populations. The current and most stringent ozone standard was promulgated in 2008. Despite this continual movement of the goalposts, all areas of Maine are in attainment with the current ozone standard.
Because LAER requires the best controls regardless of cost and purchase of offsets often involves paying substantial sums to a third-party (sometimes in Massachusetts), the NNSR requirements for NOx and VOCs can serve as a significant additional impediment to construction of new, upgraded or expanded facilities in Maine. The types of facilities in Maine that may be affected if they choose to construct, expand, increase production, switch fuels or make other process changes include facilities with combustion sources, that dry wood, apply paint, adhesives or other coatings, or use significant amounts of solvents. While the recent newspaper articles have highlighted the pulp and paper industries being potentially affected by these rules, in reality the DEP's proposal may benefit a much broader segment of Maine's economy.
The DEP has performed a technical analysis to support its proposal (see technical analysis here). EPA states that DEP's analysis shows "convincingly" that application of the NNSR requirements for ozone precursors in Maine will not significantly contribute to attainment of the 2008 ozone standard in any ozone nonattainment area of the OTR. Thus, unless one challenges the DEP's and EPA's technical analyses, which no one has done yet, there is little debate over the scientific or legal basis for the DEP's proposal. What remains, therefore, are politics. Opponents of the DEP's proposal assert that Maine should continue to apply the NNSR requirements that inhibit construction of new or expanded facilities and that the State should not be treated as though it attains the ozone standards. Opponents claim that Maine's air quality will be harmed by the DEP's proposal and other states in the OTR will also seek this exemption strategy if Maine proceeds. However, the Chief of EPA's Air Programs Branch in the New England Region is quoted in the Bangor Daily News as stating that EPA's process would have "no impact on overall air pollution or air quality here." The opponents' arguments also ignore the fact that few other areas in the OTR could meet the technical and legal requirements for the exemption being sought by the DEP.
If your facility emits NOx and/or VOCs, the DEP's proposal may make it easier to construct, expand, modernize, switch fuels or make other investments to remain competitive. If so, you should consider submitting comments to the EPA in support of its August 5, 2013 proposal and to provide testimony in person or in writing at the DEP's September 10, 2013 hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
