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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-2980

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 10, 1999
- **Citation:** 64 FR 12015

## Text

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]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-2980. Public record. Not legal advice.