Maine Proposes to Opt Out of the Ozone Transport Region

On June 27, 2018, the Maine Department of Environmental Protection (DEP) posted for public comment a draft petition to the U.S. Environmental Protection Agency (EPA) to remove most of the state from the Ozone Transport Region (OTR). The petition is based on Maine DEP’s determination that Maine has been and continues to be in attainment with ambient air quality standards for ozone, and Maine sources have a negligible impact on the ozone attainment status of any part of the OTR. 

The Clean Air Act Amendments of 1990 formed the OTR as essentially a single, 13-state ozone nonattainment area. As a result, all areas of Maine (and the other OTR states) were treated as though they were in nonattainment of the ozone standard for permitting and other Clean Air Act purposes – whether or not the areas actually did or did not attain the standards. As a result, Maine has been required to implement Reasonably Achievable Control Technology (RACT) requirements for VOCs and NOx for existing sources everywhere in the state. It also requires new major sources and major modifications of NOx and/or VOCs to meet Lowest Achievable Emission Rate (LAER) requirements (often more stringent than BACT) and obtain scarce and expensive offsets.

These requirements imposed burdens on Maine’s existing businesses as well as hurdles to new investments, without addressing a corresponding environmental concern; and unless Maine opts out, it may be required to update its VOC and NOx RACT requirements.

Under the Clean Air Act, a state may obtain a waiver of the LAER and offset requirements if it can demonstrate, to EPA’s satisfaction, that emissions of NOx do not significantly contribute to exceedances of the ozone standard elsewhere in the OTR. Pursuant to those Clean Air Act provisions, so-called NOx waivers were obtained for northern Maine in 1995, 2006, and 2013 by the administrations of Governors King, Baldacci, and LePage, respectively. The effect of Maine DEP’s current position would be to expand the NOx waiver and secure a similar waiver for VOC requirements for the entire state, except for municipalities along the coast from Kittery to Old Orchard Beach, and except for Acadia National Park. Maine DEP asserts that such an opt-out will not degrade the air quality in Maine or in any other state and that the OTR regulatory structures “create additional barriers without appreciable value.”

Maine DEP is holding a public hearing on July 30, 2018 at 1:00 pm in the DEP Response Training Room in Augusta, Maine, and is accepting written comments until August 10, 2018.

It is important to communicate support for the proposed opt-out petition at the hearing and/or through written comments. If you have any questions or would like help preparing testimony and/or written comments, please contact Brian Rayback (207.791.1188) or Lisa Gilbreath (207.791.1397).