EPA Approves Maine's NOx Waiver Request – VOC Waiver Request Still Pending

by Pierce Atwood LLP

Since the mid-1990s, Maine has had an EPA-approved waiver from the ozone nonattainment new source review (NNSR) requirements for NOx covering, at a minimum, areas of the state that attain the ozone standard.  The NOx waiver has been renewed several times as the ozone standard has been tightened.  In 2013, Maine DEP issued a proposal to obtain a waiver from the NNSR requirements for both NOx and VOCs throughout the state, all of which attains the ozone standard.  On July 29, 2014, EPA published its approval of MDEP’s request for the NOx waiver. EPA did not take action with respect to the State’s request for a VOC waiver. 

Under the Clean Air Act, the NNSR requirements for NOx and VOCs apply throughout the Northeast Ozone Transport Region (OTR), including Maine – even in areas that attain the ozone standard.  However, in Section 182(f) of the Clean Air Act, Congress provided states the ability to obtain a waiver from the NNSR requirements for NOx where it can be shown that NOx emissions are not having a meaningful adverse impact on the ability of any nonattainment areas located in the OTR to attain the ozone standard.  Under this provision, EPA previously approved Maine’s NOx waiver requests submitted in 1995 (King Administration) and in 2006 (Baldacci Administration).  The state’s previous requests for waiver of the NOx NNSR requirement did not generate significant public comment or opposition.

However, in summer of 2013, a proposal by the LePage Administration to obtain a waiver from both the NOx and VOC NNSR requirements generated a great deal of critical media attention.  In a change from the past NOx waiver processes, a number of comments were submitted to EPA opposing the 2013 NOx waiver request.  Although it received scant press, EPA published a notice of intent to approve Maine’s proposal on August 5, 2013. 

As part of its approval of the NOx waiver for Maine, EPA found that:  “any additional reductions in NOx emissions in the State of Maine that will be required under 2008 8-hour ozone standards, and which would be beyond what Maine’s State Implementation Plan regulates already provide for, would not produce net ozone air quality benefits in the OTR.”  As a result, EPA approved the NOx waiver for the entire state.  However, in so doing, EPA stated that the Agency is not “taking final action on the proposed approval of Maine’s CAA Section 176A request or the related proposed SIP changes [for a VOC waiver] at this time.”

The NOx waiver, and lack of action on the VOC waiver request, has the potential to affect air permitting requirements for new, upgraded or expanded large facilities in Maine, including expansions, increases in production and fuel switches at facilities that operate combustion sources, dry wood, apply paint, adhesives, or other coatings or use significant amounts of solvents.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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