Approval and Promulgation of Air Quality Implementation Plans; Connecticut; 15 Percent Rate-of-Progress and Contingency Plans

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CT-7209a; A-1-FRL-6225-2]

Approval and Promulgation of Air Quality Implementation Plans;

Connecticut; 15 Percent Rate-of-Progress and Contingency Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions

submitted by the State of Connecticut. These revisions establish 15

percent rate-of-progress (ROP) and contingency plans for ozone

nonattainment areas in the State. The intended effect of this action is

to approve these plans in accordance with the Clean Air Act.

EFFECTIVE DATE: This rule is effective on May 10, 1999.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours, by

appointment at the Office of Ecosystem Protection, U.S. Environmental

Protection Agency, Region I, One Congress Street, 11th floor, Boston,

MA; and the Bureau of Air Management, Department of Environmental

Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-

1630.

FOR FURTHER INFORMATION CONTACT: Robert McConnell, (617) 918-1046.

SUPPLEMENTARY INFORMATION: Section 182(b)(1) of the Act requires ozone

nonattainment areas classified as moderate or above to develop plans to

reduce VOC emissions by 15 percent from 1990 baseline levels. There are

two ozone nonattainment areas in Connecticut, one classified as a

serious area, the other as a severe area. The areas are referred to as

the Connecticut portion of the New York, New Jersey, Connecticut severe

area (the ``NY-NJ-CT area''), and the Greater Hartford serious ozone

nonattainment area (the ``Hartford area''). The State is, therefore,

subject to the 15 percent ROP requirement.

I. Background

On October 24, 1997 (62 FR 55368), EPA published a Notice of

Proposed Rulemaking (NPR) for the State of Connecticut. The NPR

proposed conditional approval of the State's 15 percent ROP and

contingency plans. The formal SIP revision was submitted by Connecticut

on December 30, 1994. The conditions listed in the proposed approval of

the Connecticut 15 percent ROP plans, and the status of each, are as

follows:

Condition 1--By January 1, 1998, Connecticut must begin testing

motor vehicles using the ASM 25/25 program which is described within

the State's August 22, 1997 letter to EPA.

Status of Condition 1--Connecticut began its motor vehicle emission

testing program on January 2, 1998, thereby meeting the requirements of

condition 1.

Condition 2--By April 1, 1998, Connecticut must submit revised 15

percent and contingency plans as revisions to the State's SIP which

show that the emission reductions from the ASM 25/25 automobile

emission testing program, when coupled with emission reductions from

other measures, will meet the emission reduction goals of these

requirements.

Status of Condition 2--On May 8, 1998, Connecticut submitted

revisions to its 15 percent ROP and contingency plans which adequately

demonstrate that the required level of emission reductions will be

achieved. The submittal included a revised emission target level

calculation performed in accordance with EPA guidance

[[Page 12016]]

memoranda of August 13, 1996, entitled ``Date by which States Need to

Achieve all the Reductions Needed for the 15% Plan from I/M and

Guidance for Recalculation'' and December 23, 1996, entitled ``Modeling

15% VOC Reduction(s) from I/M in 1999--Supplemental Guidance.'' The

revised calculations submitted by the State indicate that sufficient

emission reduction surpluses are available to cover the contingency

measure emission reduction obligation for each nonattainment area. The

State's original proposal to use NOX emission reductions

from stationary sources to form a portion of the contingency plan for

the Greater Hartford area is therefore not required. The contingency

plan for each of the State's ozone nonattainment areas consist of

excess emission reductions achieved by the measures identified within

the State's 15 percent ROP plans.

The State's May 8, 1998 submittal contained a minor adjustment to

the credit claimed from national rules for architectural and industrial

maintenance coatings, and incorporated into its 15 percent ROP plans

emission reductions expected from a national rule on consumer and

commercial products of 0.9 tons per summer day (tpsd) in the State's

portion of the NY-NJ-CT area, and reductions of 2.7 tpsd in the Greater

Hartford area. The State properly determined the amount of emission

reduction which will accrue from implementation of these two national

rules. The State's submittal also made an adjustment to the reporting

frequency contained within the cutback asphalt rule effectiveness

improvement portion of the 15 percent plan. EPA approves this revision

in light of support documentation submitted by the State verifying the

compliance status of municipalities with this rule.

Although the State's submittal was made later than the date

specified in EPA's proposed conditional approval, the content of the

submittal adequately addresses EPA's concern's as expressed in the

condition.

Condition 3--By April 1, 1998, Connecticut must submit a revised I/

M program as a revision to the State's SIP.

Status of Condition 3--On June 24, 1998, Connecticut submitted a

revised automobile emissions inspection and maintenance program to EPA

as a revision to the State's SIP. Although the State's submittal was

made later than the date specified in EPA's proposed conditional

approval of the Connecticut 15 percent plans, the content of the

submittal adequately addresses EPA's concerns. A final conditional

approval of the Connecticut I/M program is being published in the rules

section of today's Federal Register.

EPA has considered whether the 15 percent plans for the State

should also be conditionally approved, and determined that full

approval of the 15 percent plans is more appropriate. The State began

its motor vehicle emissions testing program on January 2, 1998, and has

continued to operate the program since that time without encountering

major difficulties. It is the testing of motor vehicles and subsequent

requirement that high polluting vehicles be repaired to emit less

pollution that achieves the emission reductions attributable to

automobile I/M programs. The conditions contained within EPA's approval

of the Connecticut I/M program pertain to requirements that the State

fully document that the State's I/M program complies with the

provisions of section 182(c)(3) of the CAA. Achievement of these

conditions, although necessary for full approval of the I/M program,

are not prerequisite to achieving the emission reductions from the

program on which these 15 percent plans rely. The I/M program as

currently implemented is accomplishing the necessary emission

reductions to support the 15 percent plans, and the largely procedural

requirements of EPA's conditions on the I/M program are not necessary

to achieve that level of emissions control.

A final conditional approval of Connecticut regulations which

define reasonably available control technology (RACT) for specific

categories of industrial sources that emit VOCs is being published in

the rules section of today's Federal Register. Although the Connecticut

15 percent ROP plans rely on emission reductions from the VOC RACT

rules which are being conditionally approved in today's Federal

Register, the achievement of the emission reductions from these rules

which Connecticut has relied upon within its 15 percent ROP plans in no

way depends upon the fulfillment of the conditions outlined within that

final rule. The conditions in the VOC RACT final rule relate to the

State's obligation to ensure that its SIP complies with the provisions

of section 183(b) of the CAA pertaining to new control technique

guidelines (CTGs). The State has not assumed emission reductions from

new CTGs within its 15 percent ROP plans. Therefore, EPA will not

condition full approval of the State's 15 percent ROP plans upon

fulfillment of the conditions outlined within today's document

regarding the State's VOC RACT rules.

The State of Connecticut has addressed the conditions contained

within the EPA's October 24, 1997 proposed conditional approval.

Additionally, the conditions EPA is attaching to approval of

Connecticut's I/M and VOC RACT regulations do not effect the emissions

reductions on which these 15 percent plans rely. Accordingly, EPA

believes that full approval of the State's 15 percent plans is

appropriate.

Transportation Conformity Budgets

Under EPA's transportation conformity rule the 15 percent plans are

a control strategy SIP. The plans for Connecticut establish VOC

emission budgets for on-road mobile sources within the respective

nonattainment areas. These plans do not establish NOX

emission budgets for on-road mobile sources. However, Connecticut has

submitted a complete SIP revision consisting of reasonable further

progress plans to achieve a 9 percent emission reduction in ozone

precursor emissions after 1996 (post-96 plans). Connecticut submitted

post-96 plan to EPA on December 31, 1997. These revisions establish the

VOC and NOX emission budgets for 1999 shown in Table 1.

Table 1.--1999 Emission Budgets for On-Road Mobile Sources

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

VOC Budget NOX Budget

Nonattainment area tons per tons per

summer day summer day

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

CT portion of NY-NJ-CT area................... 20.5 39.4

Greater Hartford area......................... 61.6 125.3

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

EPA believes that the VOC and NOX budgets established by

the post-96 plans for Connecticut are currently the controlling budgets

for conformity determinations for 1999 and later years. The budgets in

the post-1996 plans specifically address the 1999 reasonable further

progress milestone year, whereas the 15 percent plan establishes a

budget for the prior reasonable further progress milestone year of

1996. The time period for the budget in the 15 percent plans has

passed. Additionally, the post-96 plan establishes a more stringent

budget.

EPA's rationale for granting approval to these plans, and the

details of the State's submittal are contained in the NPR and the

accompanying technical support document and will not be restated here.

II. Public Comments and EPA Responses

EPA received a letter in response to the October 24, 1997 NPR from

the Connecticut Department of

[[Page 12017]]

Environmental Protection (CT-DEP). The following discussion summarizes

and responds to the comments received on the October 24, 1997 NPR.

Comment 1. CT-DEP commented that the State's submittal only took

credit for a 15 percent reduction from architectural and industrial

maintenance coatings, not a 20 percent reduction as referenced in the

NPR and allowed by current EPA guidance. The CT-DEP indicated that a

revision would be made to the 15 percent plan to take the full 20

percent emission reduction credit from this source category.

Response 1. EPA agrees that Connecticut's December 30, 1994 15

percent ROP plan only claimed a 15 percent emission reduction for this

source category. EPA acknowledges receipt of revisions to the State's

plan on May 8, 1998, which contain a revised emission reduction

calculation for this source category using the 20 percent reduction.

Based on this recalculation, Connecticut is able to claim an additional

0.5 ton per summer day (tpsd) VOC emission reduction in the State's

portion of the NY-NJ-CT severe area, for a total reduction of 2.1 tpsd

in this area. Additionally, the state can claim an additional 1.6 tpsd

VOC reduction in the Greater Hartford serious area, for a total

reduction of 6.5 tpsd.

Comment 2. The CT-DEP commented that the EPA's approval of the

NOX budget for mobile sources is inappropriate, as 15

percent plans are only required to reduce VOC emissions. The DEP notes

that although the State's plan does rely upon NOX emission

reductions to achieve contingency measure emission reductions, this

does not create a requirement for approval of a NOX budget

for mobile sources.

Response 2. Connecticut's initial reliance on NOX

emission reductions to form a part of its original contingency plans

created a need to establish NOX emission budgets. However,

on May 8, 1998, Connecticut submitted revised 15 percent and

contingency plans to EPA which demonstrated that the required

contingency measure emission reduction obligation for both ozone

nonattainment areas within the State could be met utilizing VOC

emission reduction surpluses generated by the measures within the 15

percent plans. Accordingly, EPA agrees that a NOX emission

budget does not need to be established for the 15 percent ROP plans.

For the reasons discussed above, however, EPA is setting VOC and

NOX emission budgets based on the 1999 projections in

Connecticut's post-1996 plans.

Comment 3. The CT-DEP commented that the EPA's notice implies that

the State is not meeting a statutory requirement, by suggesting that

the employee commute option is not being implemented. CT-DEP notes

that, as allowed by the CAA, it has amended its employee commute option

(ECO) legislation to create a voluntary traffic reduction program,

which is being implemented. CT-DEP further notes that it is not, at

this time, seeking to adopt this program into the SIP.

Response 3. EPA acknowledges the existence of Connecticut's

voluntary traffic reduction program as an acceptable alternative to an

enforceable ECO program. However, as noted in the State's comment, the

traffic reduction program has not been adopted into the State's SIP,

and is therefore not a program from which the State can derive emission

reductions for use within its 15 percent ROP demonstrations.

III. Final Action

EPA is approving the Connecticut 15 percent ROP and contingency

plans as revisions to the Connecticut SIP. This rule will become

effective on May 10, 1999, which corresponds to the effective date for

EPA's direct final rules on Connecticut's automobile inspection and

maintenance program and stationary source volatile organic compound

(VOC) regulations which are referenced in this document, unless EPA

receives relevant adverse comments on either of those direct final

rules. In the event relevant adverse comments are received on either of

those rules, EPA will publish a timely withdrawal in the Federal

Register informing the public that this rule and the corresponding

direct final rule or rules will not take effect.

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.

IV. Administrative Requirements

A. Executive Orders 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it is not an

``economically significant'' action under Executive Order 12866.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the

[[Page 12018]]

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments, or EPA consults

with those governments. If EPA complies by consulting, Executive Order

13084 requires EPA to provide to the Office of Management and Budget,

in a separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal 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. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

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

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

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions 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 May 10, 1999. 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone.

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: January 15, 1999.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart H--Connecticut

2. Section 52.370 is amended by adding paragraph (c)(77) to read as

follows:

Sec. 52.370 Identification of plan.

* * * * * *

(c) * * *

(77) Revisions to the State Implementation Plan submitted by the

Connecticut Department of Environmental Protection on December 30,

1994, and May 8, 1998. This revision is for the purpose of satisfying

the rate-of-progress requirement of section 182(b) and the contingency

measure requirements of sections 172(c)(9) and 182(c)(9) of the Clean

Air Act, for the Greater Hartford serious ozone nonattainment area, and

the Connecticut portion of the NY-NJ-CT severe ozone nonattainment

area.

(i) Incorporation by reference.

(A) Letter from the Connecticut Department of Environmental

Protection dated December 30, 1994, submitting a revision to the

Connecticut State Implementation Plan.

(B) Letter from the Connecticut Department of Environmental

Protection dated May 8, 1998, submitting a revision to the Connecticut

State Implementation Plan.

[FR Doc. 99-2980 Filed 3-9-99; 8:45 am]

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