Clean Air Act Promulgation of Reclassification of PMINF10 Nonattainment AreasConnecticut; Approval of 1-Year Extension of Attainment Date for New Haven

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CT-22-1-7078a; A-1-FRL-5271-5]

Clean Air Act Promulgation of Reclassification of PM10

Nonattainment Areas--Connecticut; Approval of 1-Year Extension of

Attainment Date for New Haven

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is fully approving Connecticut's request for a 1-year

extension of the attainment date for the New Haven PM10 nonattainment

area. This action is based on monitored air quality data for the

national ambient air quality standard for PM10 during the years 1992-

94. This action is being taken under the Clean Air Act.

DATES: This final rule is effective November 13, 1995, unless notice is

received by October 11, 1995 that adverse or critical comments will be

submitted. If the effective date is delayed, timely notice will be

published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director,

Air, Pesticides and Toxics Management Division, EPA-New England, JFK

Federal Building (AAA), Boston, MA 02203-2211. Copies of the documents

relevant to this action are available for public inspection by

appointment during normal business hours at the Air, Pesticides and

Toxics Management Division, EPA-New England, One Congress Street, 10th

floor, Boston, MA; Air and Radiation Docket and Information Center, US

Environmental Protection Agency, 401 M Street, SW., (LE-131),

Washington, DC 20460; and the Bureau of Air Management, Department of

Environmental Protection, State Office Building, 79 Elm Street,

Hartford, CT 06106-1630.

FOR FURTHER INFORMATION CONTACT: Matthew B. Cairns, (617) 565-4982.

SUPPLEMENTARY INFORMATION:

Background

Clean Air Act Requirements and EPA Actions Concerning Designation and

Classification

On the date of enactment of the Clean Air Act Amendments of 1990

(herein after referred to as ``the Act''), PM10 areas meeting the

qualifications of Sec. 107(d)(4)(B) of the Act were designated

nonattainment by operation of law. [See generally, 42 USC section

7407(d)(4)(B).] These areas included all former Group I areas and any

other areas violating the PM10 standards prior to January 1, 1989. On

October 31, 1990 (55 FR 45799), EPA redefined a Group I area for

Connecticut as the City of New Haven; the remainder of the state was

designated as Group III. Subsequently, after enactment of the Act on

November 15, 1990, New Haven was designated moderate nonattainment for

PM10 in 56 FR 11101 (March 15, 1991). All other areas not designated

nonattainment at enactment were designated unclassifiable.

States containing areas which were designated as moderate

nonattainment by operation of law under Sec. 107(d)(4)(B) were required

to develop and submit SIPs to provide for the attainment of the PM10

NAAQS. Under Sec. 189(a)(2), those SIP revisions were to be submitted

within 1 year of enactment of the Act (November 15, 1991). The SIP

revisions were to provide for implementation of reasonable available

control measures/technology (RACM/RACT) by December 10, 1993 and

attainment of the PM10 NAAQS by December 31, 1994.

Reclassification as Serious Nonattainment

EPA has the responsibility, under Secs. 179(c) and 188(b)(2) of the

Act, of determining within 6 months after December 31, 1994 whether

initial moderate PM10 nonattainment areas have attained the NAAQS.

Section 179(c)(1) of the Act provides that these determinations are to

be based upon an area's ``air quality as of the attainment date,'' and

Sec. 188(b)(2) is consistent with this requirement. EPA will make the

determinations of whether an area's air quality is meeting the PM10

NAAQS based upon air quality data gathered at monitoring sites in the

nonattainment area and entered into the Aerometric Information

Retrieval System (AIRS). This data will be reviewed to determine the

area's air quality status in accordance with EPA guidance at 40 CFR

Part 50, Appendix K.

According to Appendix K, attainment of the annual PM10 standard is

achieved when the annual arithmetic mean PM10 concentration is equal to

or less than 50 g/m3. Attainment of the 24-hour standard

is determined by calculating the expected number of exceedances of the

150 g/m3 limit per year. The 24-hour standard is attained

when the expected number of exceedances is 1.0 or less. A total of 3

consecutive years of clean air quality data is generally necessary to

show attainment of the 24-hour and annual standards for PM10. A

complete year of air quality data, as referred to in 40 CFR Part 50,

Appendix K, is comprised of all 4 calendar quarters with each quarter

containing data from at least 75 percent of the scheduled sampling

days.

Under Sec. 188(b)(2) a moderate area shall be reclassified as

serious by operation of law after the statutory attainment date if the

Administrator determines that the area has failed to attain the NAAQS.

Under Sec. 188(b)(2)(B) of the Act, the EPA must publish a notice in

the Federal Register identifying those areas which failed to attain the

standard and must be reclassified as serious by operation of law.

Application for a 1-year Extension of the Attainment Date

If the State does not have the necessary number of consecutive

clean years of data to show attainment of the NAAQS, a State may apply

for an extension of the attainment date. Pursuant to Sec. 188(d) of the

Act, a State may apply for and EPA may grant a 1-year extension of the

attainment date if the State has: (1) complied with the requirements

and commitments pertaining to the applicable implementation plan for

the area, and (2) the area has measured no more than 1 exceedance of

the 24-hour PM10 standard in the year preceding the extension year, and

the annual mean concentration of PM10 in the area for such year is less

than or equal to the standard. If the State does not have the requisite

number of years of clean air quality data to show attainment and does

not apply or does not qualify for an attainment date extension, the

area will be reclassified as serious by operation of law.

Section 188(d) of the Act provides that the Administrator ``may''

extend

[[Page 47098]]

the attainment date for areas that meet the minimum requirements

specified above. The provision does not dictate or compel that EPA

grant extensions to such areas. In exercising this discretionary

authority for PM10 nonattainment areas, EPA will examine the air

quality planning progress made in the moderate area. EPA will be

disinclined to grant an attainment date extension unless a State has,

in substantial part, addressed its moderate PM10 planning obligations

for the area. In order to determine whether the State has substantially

met these planning requirements the EPA will review the States

application for the attainment date extension to determine whether the

State has: (1) Adopted and substantially implemented control measures

submitted to address the requirement for implementing RACM/RACT in the

moderate nonattainment area; and (2) that reasonable further progress

is being met for the area. RFP for PM10 nonattainment areas is

determined to be linear emissions reductions made on an annual basis

which will provide progress toward the eventual attainment of the NAAQS

in the area.

If an extension is granted, at the end of the extension year, EPA

will again determine whether the area has attained the PM10 NAAQS. If

the State still does not have 3 consecutive years of clean air quality

data, it may apply for a second 1-year extension of the attainment

date. In order to qualify for the second 1-year extension of the

attainment date, the State must satisfy the same requirements listed

above for the first extension. In addition, EPA will consider the

State's PM10 planning progress for the area in a manner similar to its

evaluation of the first extension request. However, EPA may grant no

more than two 1-year extensions of the attainment date to a single

nonattainment area. [See Sec. 188(d) of the Act].

Summary of Connecticut's Extension Request

On March 31, 1995, the Connecticut Department of Environmental

Protection (Connecticut DEP) submitted a request for a 1-year extension

of the attainment date for the New Haven initial moderate PM10

nonattainment area.

EPA's Air Quality Strategies and Standards Division (AQSSD) has

prepared a guidance titled ``Criteria for Granting 1-Year Nonattainment

Area Attainment Dates, Making Attainment Determinations, and Reporting

on Quantitative Milestones'' (November 14, 1994 memorandum from AQSSD

Director Sally Shaver) which outlines how to assess the adequacy of

requests for a 1-year extension of the attainment date. The rationale

for EPA's approval action are detailed in the Technical Support

Document (TSD), dated June 13, 1995. In summary, Connecticut has

fulfilled the specific elements of that guidance as follows:

A. Connecticut is implementing the EPA-approved PM10 SIP.

B. New Haven has monitored no more than 1 exceedance during 1994,

the year preceding the extension year.1

\1\A review of the PM10 air quality data for New Haven shows air

quality monitors for this area monitored 4 exceedances of the 24-

hour PM10 NAAQS during the 3-year period from 1992 to 1994. All

exceedances occurred in 1993 at the Yankee Gas monitor site (AIRS

Site ID 09-009-0021). The area did not have any exceedances of the

PM10 NAAQS in 1994.

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C. Connecticut has demonstrated that RACT/RACM, embodied in 7

consent orders, have been adopted and submitted in the form of a SIP

revision and are being implemented for New Haven. Furthermore, real

emissions reductions have been achieved.2

\2\Section 189(c) requires that Part D SIPs include quantitative

milestones to document RFP towards attainment. Every 3 years until

EPA redesignates an area to attainment, States must report on

whether milestones have been met. Connecticut's SIP commits CT DEP

to submit quantitative milestone and RFP reports to EPA every 3

years. For initial moderate PM10 nonattainment areas, the emissions

reductions made between SIP submittal and the attainment date will

satisfy the first quantitative milestone. (See General Preamble 57

FR 13539.) Since EPA believes it is reasonable to key the first

milestone to the SIP revision containing control measures which will

result in emission reductions and since the PM10 attainment date was

less than 3 years from the actual submittal date of CT DEP's SIP

revision, CT DEP submitted--and EPA is accepting--the emissions

reductions associated with the New Haven PM10 Attainment Plan SIP

revision (submitted to EPA on March 22, 1994) as meeting RFP and the

first quantitative milestone for New Haven. (See TSD dated March 27,

1995.)

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Connecticut's extension request states that indeed the area

recorded no exceedances of the PM10 NAAQS in 1994, and is complying

with the applicable state implementation plan. For further details

regarding Connecticut's extension request and how it meets EPA's

requirements, the reader should refer to the TSD dated June 13, 1995.

Final Action

EPA is approving an extension of the PM10 attainment date for New

Haven, Connecticut to December 31, 1995.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective November 13, 1995 unless adverse or critical comments are

received by October 11, 1995.

If the EPA receives such comments, this action will be withdrawn

before the effective date by simultaneously publishing a subsequent

notice that will withdraw the final action. All public comments

received will then be addressed in a subsequent final rule based on

this action serving as a proposed rule. The EPA will not institute a

second comment period on this action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, the public is advised that this action will be

effective on November 13, 1995.

Under Executive Order 12866, 58 FR 51735 (October 4, 1993) EPA is

required to determine whether regulatory actions are significant and

therefore should be subject to OMB review, economic analysis, and the

requirements of the Executive Order. The Executive Order defines a

``significant regulatory action'' as one that is likely to result in a

rule that may meet at least one of the four criteria identified in

section 3(f), including, under paragraph (1), that the rule may ``have

an annual effect on the economy of $100 million or more or adversely

affect, in a material way, the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities.''

The Agency has determined that the attainment date extension

proposed today would result in none of the effects identified in

section 3(f). Attainment date extensions under Sec. 188(d) of the Act

do not impose any new requirements on any sectors of the economy; nor

do they result in a materially adverse impact on State, local, or

tribal governments or communities.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Under Secs. 202, 203, and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA must assess whether various actions undertaken in association with

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proposed or final regulations that include a Federal mandate that may

result in estimated costs of $100 million or more to the private

sector, or to State, local, or tribal governments in the aggregate.

EPA has determined, as discussed earlier, that the finding that is

the subject of this final action of failure to attain and grant a 1-

year extension does not impose any federal intergovernment mandate, as

defined in section 101 of the Unfunded Mandates Act. A finding that an

area has failed to attain and should be granted a 1-year extension of

the attainment date consists of factual determinations based upon air

quality considerations and the area's compliance with certain prior

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector result from this action.

This action also will not impose a mandate that may result in estimated

costs of $100 million or more to either State, local, or tribal

governments in the aggregate, or to the private sector.

Extensions of attainment dates under Sec. 188(d) do not create any

new requirements, but simply approve requirements that the State is

already imposing. Therefore, because the federal SIP-approval does not

impose any new requirements, I certify that it does not have a

significant impact on any small entities affected. Moreover, due to the

nature of the federal-state relationship under the CAA, preparation of

a regulatory flexibility analysis would constitute federal inquiry into

the economic reasonableness of state action. The CAA forbids EPA to

base its actions concerning SIPs on such grounds. Union Electric Co. v.

USEPA, 427 US 246, 256-66 (S.Ct. 1976); 42 USC Sec. 7410 (a)(2).

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future notice will inform the general public of

these tables. The Office of Management and Budget (OMB) has exempted

this action from review under Executive Order 12866.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under Sec. 307(b)(1) of the Clean Air Act, petitions for judicial

review of this action must be filed in the United States Court of

Appeals for the appropriate circuit by November 13, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. [See Sec. 307(b)(2).]

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter, Reporting and recordkeeping

requirements.

Note: Incorporation by reference of the State Implementation

Plan for the State of Connecticut was approved by the Director of

the Federal Register on July 1, 1982.

Dated: July 10, 1995.

John P. DeVillars,

Regional Administrator, EPA-New England.

[FR Doc. 95-22132 Filed 9-8-95; 8:45 am]

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