[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)]
[Rules and Regulations]
[Pages 12015-12018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2980]


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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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