Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Connecticut

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CT23-1-7084; FRL-5443-5]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; State of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is responding to an adverse comment concerning EPA's

proposal to redesignate Hartford, Connecticut as attainment for carbon

monoxide. EPA is not changing its action to redesignate the area as

attainment that took effect on January 2, 1996. EPA is also correcting

an incorrect entry in the attainment status tables associated with this

action.

EFFECTIVE DATE: January 2, 1996.

FOR FURTHER INFORMATION CONTACT: Wing H. Chau, Air Quality Planning

Unit, Office of Ecosystem Protection, United States Environmental

Protection Agency, Region I, Boston, Massachusetts 02203, (617) 565-

3570.

SUPPLEMENTARY INFORMATION: On October 31, 1995, EPA published a direct

final rule (60 FR 55316) which announced that this rule would take

effect in 60 days, or January 2, 1996, unless EPA received adverse

comment on the rule within 30 days in response to a notice of proposed

rulemaking published on the same day (60 FR 55354). EPA also committed

to withdraw the direct final rule in the event it received adverse

comment, and to respond to any adverse comments in a subsequent final

rulemaking action. EPA did receive a timely adverse comment on this

rule. EPA failed, however, to withdraw the final rule within the 60

days given in the direct final rule, and the rule took effect on

January 2, 1996.

In this notice, EPA is responding to the comment it received, but

for the reasons stated below, EPA is not changing the final rule in

response to that comment. Had EPA withdrawn the direct final rule prior

to its going into effect, EPA would have taken final action based on

the proposal to promulgate a rule identical to the direct final rule

that went into effect. Rather than now take the action of withdrawing

the direct final rule only to repromulgate simultaneously an identical

rule, however, EPA in this action is deciding to maintain the rule

unchanged. EPA believes that withdrawal and repromulgation are

unnecessary since the results would be identical to that obtained

simply by leaving the rule unchanged and responding to the comments in

this notice. This notice provides interested parties an opportunity to

review how EPA addressed the comment and to petition for judicial

review of EPA's action in this final rulemaking within 60 days of

publication of this notice, as provided in section 307(b)(1) of the

Act.

Also, in the October 31, 1995 direct final rulemaking, the revised

Code of Federal Regulations (CFR) Sec. 81.307 designation table for

carbon monoxide identified a number of towns in the Litchfield,

Middlesex, and Tolland Counties as ``Nonattainment * * * Moderate

12.7 ppm''. The table should have shown these areas as

attainment areas for CO. The revised Sec. 81.307 designation table

associated with this final rulemaking reflects the appropriate

attainment status of the towns mentioned above. The USEPA regrets any

inconvenience these errors may have caused.

I. Summary of Action and Responses to Comments

EPA did receive one comment from the New York Mercantile Exchange

(NYMEX), dated November 29, 1995. NYMEX is the world's largest exchange

of energy futures, and NYMEX is concerned that the redesignation of the

Hartford area might affect gasoline formulation requirements and

disrupt futures contracts entered into based on gasoline formulation

requirements in effect prior to the redesignation. The comment

questioned whether EPA had offered interested persons any meaningful

opportunity to comment on this proposal, and asserted that EPA should

have provided ``far more than the limited period of notice afforded in

these redesignation approvals'' to avoid disruption in the petroleum

industry and energy futures markets when changing environmental

requirements.

As a legal matter, this SIP action is subject to the procedures of

the Administrative Procedures Act (``APA'')

[[Page 24240]]

for informal rulemaking. 5 U.S.C. Sec. 553; General Motors Corp. v.

U.S., 110 S. Ct. 2528, 2533 (1990). It is well-settled that the APA

``established the maximum procedural requirements which Congress was

willing to have the courts impose upon agencies in conducting

rulemaking procedures.'' Vermont Yankee Nuclear Power v. NRDC, 435 U.S.

519, 524 (1978). In this action EPA published a notice of proposed

rulemaking to redesignate the Hartford area as attainment for carbon

monoxide, and gave the public thirty days to comment on that proposal.

60 FR 55354 (October 31, 1995). In a simultaneous final rule EPA

informed the public that if no comment had been received within thirty

days of the accompanying proposal, the redesignation would take effect

within sixty days of the final rule. 60 FR 55316 (October 31, 1995).

EPA provided the public thirty days to comment, which is an adequate

period for public review. Indeed, NYMEX availed itself of that

opportunity to comment. Although it is unclear from the comment letter,

NYMEX may have been complaining that EPA should delay the effective

date this rule for more than thirty days following this final notice.

The APA is clear that EPA must only wait thirty days to make a rule

effective. 5 U.S.C. Sec. 553(d). EPA has fully discharged its legal

obligation to provide the public adequate notice of this action.

As a factual matter, the state of Connecticut had been developing

this redesignation proposal for much longer than thirty days. The state

published a notice concerning the redesignation on July 15, 1994, held

a public hearing on August 17, 1994 and submitted it to EPA on

September 30, 1994, fully 13 months before EPA published its notice

proposing to approve the state's request for redesignation. NYMEX and

its clients had ample opportunity to anticipate this change as a

practical matter. NYMEX's comment suggests that its gasoline futures

contracts trade ten months in advance. It would not be practical for

EPA to give ten months' notice on all such SIP actions, nor is it

legally required. For industries that are sensitive to changes in SIP

requirements and need substantial lead-time to anticipate them, EPA

encourages them to monitor SIP developments at the state level.

II. Final Rulemaking Action

The USEPA maintains the approvals associated with the October 31,

1995 direct final rulemaking (60 FR 55316) which included the

redesignation of the Hartford/New Britain/Middletown CO area to

attainment, Connecticut's 1990 base year CO emission inventory, and

Connecticut's oxygenated fuel program as it applies to the Hartford/

Britain/Middletown area.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

The CO SIP is designed to satisfy the requirements of part D of the

CAA and to provide for attainment and maintenance of the CO NAAQS. This

final redesignation should not be interpreted as authorizing the State

to delete, alter, or rescind any of the CO emission limitations and

restrictions contained in the approved CO SIP. Changes to CO SIP

regulations rendering them less stringent than those contained in the

EPA approved plan cannot be made unless a revised plan for attainment

and maintenance is submitted to and approved by EPA. Unauthorized

relaxations, deletions, and changes could result in both a finding of

non-implementation (section 179(a) of the CAA) and in a SIP deficiency

call made pursuant to sections 110(a)(2)(H) and 110(k)(2) of the CAA.

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. SIP approvals under section 110 and subchapter I, part D of the

CAA 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, it does not have any

economic impact on any small entities. Redesignation of an area to

attainment under section 107(d)(3)(E) of the CAA does not impose any

new requirements on small entities.

Redesignation is an action that affects the status of a

geographical area and does not impose any regulatory requirements on

sources. Accordingly, I certify that the approval of the redesignation

request will not have an impact on any small entities.

Unfunded Mandates

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 25,

1995, EPA must undertake various actions in association with proposed

or final rules 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.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under section 175A and

section 187(a)(1) of the Clean Air Act. The rules and commitments

approved in this action may bind State, local and tribal governments to

perform certain actions and also may ultimately lead to the private

sector being required to certain duties. To the extent that the

imposition of any mandate upon the State, local or tribal governments

either as the owner or operator of a source or as mandate upon the

private sector, EPA's action will impose no new requirements under

State law; such sources are already subject to these requirements under

State law. Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, results from this action. EPA

has also determined that this final action does not include a mandate

that may result in estimated costs of $100 million or more to State,

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

Opportunity for Judicial Review

Under Section 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 July 15, 1996. 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 section 307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Nitrogen dioxide, Ozone, Reporting and record keeping

requirements, Volatile organic compounds.

[[Page 24241]]

40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

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: February 29, 1996.

John P. DeVillars,

Regional Administrator, Region I.

Title 40 of the Code of Federal Regulations, Chapter I, Part 81

is amended as follows:

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart C--Section 107 Attainment Status Designations

2. In Sec. 81.307 by revising the table for ``Connecticut--

CarbonMonoxide'' to read as follows:

Sec. 81.307 Connecticut.

* * * * *

Connecticut--Carbon Monoxide

----------------------------------------------------------------------------------------------------------------

Designation Classification

Designated area ---------------------------------------------------------------------------

Date1 Type Date1 Type

----------------------------------------------------------------------------------------------------------------

Hartford-New Britain-Middletown

Area:

Hartford County (part).......... 1/2/96 ....................... 1/2/96 .......................

Bristol City, Burlington ........... Attainment ........... .......................

Town, Avon Town, Bloomfield

Town, Canton Town, E.

Granby Town, E. Hartford

Town, E. Windsor Town,

Enfield Town, Farmington

Town, Glastonbury Town,

Granby Town, Hartford City,

Manchester Town,

Marlborough Town, Newington

Town, Rocky Hill Town,

Simsbury Town, S. Windsor

Town, Suffield Town, W.

Hartford Town, Wethersfield

Town, Windsor Town, Windsor

Locks Town, Berlin Town,

New Britain city,

Plainville Town, and

Southington Town.

Litchfield County (part):

Plymouth Town

Middlesex County (part):

Cromwell Town, Durham Town, E. ........... Attainment. ........... .......................

Hampton Town, Haddam Town,

Middlefield Town, Middleton

city, Portland Town, E. Haddam

Town.

Tolland County (part): ........... Attainment. ........... .......................

Andover Town, Boton Town,

Ellington Town, Hebron Town,

Somers Town, Tolland Town, and

Vernon Town

New Haven--Meriden--Waterbury Area:

Fairfield County (part):

Shelton City.................... ........... Attainment. ........... .......................

Litchfield County (part):

Bethlehem Town, Thomaston Town, ........... Attainment.

Watertown, Woodbury Town

New Haven County:

New York--N. New Jersey--Long Island

Area:

Fairfield County (part):

All cities and townships except ........... Nonattainment.......... ........... Not classified

Shelton City

Litchfield County (part):........... ........... Nonattainment.......... ........... Not classified

Bridgewater Town, New Milford

Town

Not classified

.................................. Nonattainment.......... ........... Moderate > 12.7 ppm

Nonattainment.......... ........... Moderate > 12.7 ppm

Nonattainment.......... ........... .......................

AQCR 041 Eastern Connecticut

Intrastate:

........... Unclassifiable/ ........... .......................

Attainment.

Middlesex County (part):

All portions except cities and

towns in Hartford Area.

New London County:

Tolland County (part):

All portions except cities and

towns in Hartford Area.

Windham County:

AQCR 044 Northwestern Connecticut

Intrastate:

........... Unclassifiable/ ........... .......................

Attainment.

[[Page 24242]]

Hartford County (part):

Hartland Township

Litchfield County (part):

All portions except cities and

towns in Hartford, New Haven,

and New York Areas.

----------------------------------------------------------------------------------------------------------------

1 This date is November 15, 1990, unless otherwise noted.

[FR Doc. 96-11963 Filed 5-13-96; 8:45 am]

BILLING CODE 6560-50-P