[Federal Register Volume 68, Number 119 (Friday, June 20, 2003)]
[Rules and Regulations]
[Pages 36921-36925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15126]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R1-7218d; A-1-FRL-7513-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Connecticut, Massachusetts and Rhode Island; Nitrogen Oxides Budget and 
Allowance Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving and promulgating State Implementation Plan 
(SIP) revisions submitted by the States of Connecticut, Massachusetts 
and Rhode Island. These SIP revisions make minor technical corrections 
to the nitrogen oxides (NOX) budget and trading programs in 
these states. Specifically, the SIP revision for each of the States 
adjusts the baseline and emissions budgets for highway mobile and non-
electric generating unit (non-EGU) point sources such that they are 
consistent with those in EPA's March 2, 2000 (65 FR 11222) final 
rulemaking notice entitled ``Technical Amendment to the Finding of 
Significant Contribution and Rulemaking for Certain States for Purposes 
of Reducing Regional Transport of Ozone.'' The technical revisions do 
not affect the regulatory programs in these states. However, the 
changes are needed to fully approve the programs as meeting Phase I and 
II of the EPA's October 27, 1998 (63 FR 57356) regulation ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone,'' otherwise known as the ``NOX SIP 
Call.'' The intended effect of this action is to approve the SIP 
revisions for the Connecticut, Massachusetts and Rhode Island 
NOX budget trading programs as meeting Phase I and II of the 
EPA's NOX SIP Call. This action is being taken in accordance 
with section 110 of the Clean Air Act (CAA).

DATES: This direct final rule will be effective August 19, 2003, unless 
EPA receives adverse comments by July 21, 2003. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ). 
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, 
EPA--New England, One Congress Street, 11th floor, Boston, MA. Copies 
of the documents specific to the SIP approval for Connecticut are 
available at the Bureau of Air Management, Department of Environmental 
Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-
1630. Copies of the documents specific to the SIP approval for 
Massachusetts are available at the Division of Air Quality Control, 
Department of Environmental Protection, One Winter Street, 8th Floor, 
Boston, MA 02108. Copies of the documents specific to the SIP approval 
for Rhode Island are available at the Office of Air Resources, 
Department of Environmental Management, 235 Promenade Street, 
Providence, RI 02908-5767.

FOR FURTHER INFORMATION CONTACT: Dan Brown at (617) 918-1532 or via E-
mail at [email protected].

SUPPLEMENTARY INFORMATION: This document is organized according to the 
following Table of Contents.

I. What Action Is EPA Taking Today?
II. Why Is EPA Taking This Action?
III. What is Phase 2 of the NOX SIP Call and how Does it 
Relate to Today's Action?
IV. What Did the States Submit?
V. Why Are We Approving The NOX SIP Call Submittals from 
Connecticut, Massachusetts and Rhode Island Together?
VI. What Are The Applicable Statutory and Executive Order Reviews?

I. What Action Is EPA Taking Today?

    We are taking final action to fully approve revisions to the 
Connecticut, Massachusetts and Rhode Island SIP's as meeting Phase I 
and Phase II of the EPA's NOX SIP Call. Specifically, we are 
approving revisions to the SIP narratives for each of the state's 
NOX SIP Call programs. The narrative material was originally 
submitted by Connecticut, Massachusetts and Rhode Island as a SIP 
revision on September 30, 1999, November 19, 1999 and October 1, 1999,

[[Page 36922]]

respectively. While we approved the original SIP revisions on December 
27, 2000 (65 FR 81743), we identified technical corrections the states 
needed to make to the NOX budgets for non-electric 
generating units and highway mobile sources. Today's action approves 
those technical corrections into the SIP for each state.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This action will be effective August 19, 
2003 without further notice unless the EPA receives adverse comments by 
July 21, 2003.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on August 19, 2003 and no 
further action will be taken on the proposed rule.

II. Why Is EPA Taking This Action?

    On December 27, 2000 (65 FR 81743) we published a Final Rulemaking 
Notice (FRN) for the States of Connecticut, Massachusetts and Rhode 
Island, approving each state's SIP revision for a Nitrogen Oxides 
Budget and Allowance Trading Program. Each state submitted its SIP 
revision in response to EPA's October 27, 1998 (63 FR 57356) regulation 
``Finding of Significant Contribution and Rulemaking for Certain States 
in the Ozone Transport Assessment Group Region for Purposes of Reducing 
Regional Transport of Ozone,'' otherwise known as the ``NOX 
SIP Call.'' While we approved the SIP revisions as SIP strengthening 
measures meeting the air quality objectives of the NOX SIP 
Call, we noted that we could not fully approve the SIP revisions as 
meeting the NOX SIP Call because of an inconsistency with 
the non-electric generating unit (non-EGU) and highway mobile source 
NOX budgets for these three states.
    Connecticut, Massachusetts and Rhode Island submitted their 
NOX SIP Call revisions in September 1999, November 1999, and 
October 1999, respectively. The three states adopted the baseline 
NOX emissions and NOX budgets established by EPA 
in its technical amendments to the NOX SIP Call budgets 
published on May 14, 1999 (64 FR 26298). Baseline NOX 
emissions and NOX budget were included for the following 
categories; electric generating units (EGU), non-EGUs, area sources, 
non-road mobile sources and highway mobile sources. The state 
NOX budgets for each category, except the EGU category, were 
adopted directly from the EPA's May 14, 1999 Federal Register notice. 
The EGU NOX budgets were adopted from the Memorandum of 
Understanding (MOU) between Massachusetts, Connecticut, Rhode Island 
and EPA. The MOU redistributed the EGU portions of the state 
NOX budgets to better reflect each state's existing EGU 
NOX budget under the Ozone Transport Commission's 
NOX control program. See the September 15, 1999 (64 FR 
50036) notice of proposed rulemaking for more information on the MOU. 
The resulting NOX budgets for each state were submitted as 
part of the supporting NOX SIP Call narrative material. See 
table 1 for NOX budgets submitted by the states in 1999.

               Table 1.--State NOX Budgets for CT, MA and RI Approved by EPA on December 27, 2000
----------------------------------------------------------------------------------------------------------------
                                                   Non-EGU                   Non-road     Highway
         State NOX budgets           EGU point      point         Area        mobile       mobile       Total
                                      sources      sources      sources      sources      sources
----------------------------------------------------------------------------------------------------------------
CT................................        4,564        4,970        4,821       10,736       19,902       44,993
MA................................           23,490*               11,048       20,166       28,641       83,345
RI................................          985        2,031          448        2,455        3,879       9,798
----------------------------------------------------------------------------------------------------------------
*Massachusetts combines the EGU and Non-EGU sectors.

    Subsequent to the states submission of the NOX SIP Call 
revisions, the EPA issued additional technical amendments to the 
NOX SIP call on March 2, 2000 (65 FR 11222) further revising 
the baseline NOX emissions and NOX budgets for 
each state's non-EGU and highway mobile source categories (the EGU, 
area and non-road mobile source NOX budgets remained 
unchanged). As a result, the state NOX budgets that were 
submitted in 1999 were not consistent with the EPA's March 2, 2000 
revised baseline NOX emissions and NOX budgets 
for non-EGU and highway mobile sources. Therefore, we requested that 
Connecticut, Massachusetts and Rhode Island submit a SIP revision 
amending the SIP narrative to adopt the EPA's March 2, 2000 non-EGU and 
highway mobile source NOX budgets.
    Connecticut, Massachusetts and Rhode Island submitted SIP revisions 
to revise their NOX SIP Call emissions budgets for the non-
EGU and highway mobile source categories on August 1, 2002, August 10, 
2002 and September 20, 2001, respectively. The budget revisions affect 
only the SIP narrative material and we have determined that the revised 
NOX budgets are consistent with the EPA's March 2, 2000 (65 
FR 11222) technical revision to the NOX SIP Call budgets. In 
revising the non-EGU and highway mobile source NOX budgets, 
the states have responded to the only issues raised in our December 27, 
2000 (65 FR 81743) notice and, therefore, we are approving the SIP 
revisions as meeting the NOX SIP Call.

III. What Is Phase 2 of the NOX SIP Call and How Does It 
Relate to Today's Action?

    On March 3, 2000, the D.C. Circuit Court issued a ruling that 
supported most portions of EPA's NOX SIP Call Rule. However, 
the court remanded three issues for the Agency to re-examine before 
moving ahead. In response, EPA separated the NOX SIP Call 
Rule into two phases. Under Phase I of the rule, EPA moved ahead with 
those aspects of the rule supported by the Court for 19 States and the 
District of Columbia. The EPA requires these areas to submit SIPs 
showing how they will reduce air emissions of NOX from 
industrial facilities except for stationary internal combustion engines 
and a small subclass of facilities that generate electricity, known as 
cogenerators. EPA required states subject to the rule to

[[Page 36923]]

submit their implementation plans to comply with Phase I of the 
strategy by October 30, 2000.
    On February 22, 2002 (67 FR 8396), EPA published a proposed 
rulemaking in response to the March 3, 2000 D.C. Circuit ruling. This 
proposed rulemaking addresses Phase II of the NOX SIP Call, 
responding to the issues the court remanded back to the EPA. Two of the 
four remanded issues affect the NOX budgets for Connecticut, 
Massachusetts and Rhode Island: The rulings that the EPA failed to 
provide adequate notice of the change in the definition of EGU as 
applied to cogeneration units; and that EPA failed to provide adequate 
notice of the change in control level assumed for large stationary 
internal combustion engines.
    The Phase II notice includes proposed Phase II NOX 
budgets based on two different levels of control for internal 
combustion engines, 82 and 91 percent. The revised NOX 
budgets submitted by Connecticut, Massachusetts and Rhode Island are 
more stringent than they would be using the 91 percent control level 
for internal combustion engines. Furthermore, the revised 
NOX budgets collectively meet both the Phase I and proposed 
Phase II budgets of EPA's NOX SIP Call. It should be noted 
that the Phase II budgets included in the February 22, 2002 notice for 
Connecticut, Massachusetts and Rhode Island are not adjusted to account 
for the reallocation of the EGU budgets according to the MOU (see 
discussion in section IV below).
    In today's action, EPA is approving the SIP revisions from 
Connecticut, Massachusetts and Rhode Island as fully meeting the 
NOX SIP Call requirements including both the Phase I and 
Phase II statewide NOX emissions budgets. The EPA recognizes 
that its Phase II rulemaking has not been completed but fully expects 
that the final statewide budgets promulgated in that rulemaking will be 
no more stringent than the NOX budgets submitted by the 
three states. However, once EPA finalizes the Phase II rule, should the 
Connecticut, Massachusetts or Rhode Island 2007 NOX 
emissions budgets being approved today exceed the EPA's final Phase II 
budgets, EPA will take appropriate action.

IV. What Did the States Submit?

    On August 1, 2002, Connecticut submitted a SIP revision to revise 
the state's NOX SIP Call emissions budget for the non-EGU 
and highway mobile source categories (See Table 2). The revision was 
submitted, as requested by EPA, to make Connecticut's non-EGU and 
highway mobile emissions budgets consistent with EPA's March 2, 2000 
technical revision to the NOX SIP Call budgets. The budget 
revisions affect only the SIP narrative material ``Connecticut SIP 
Revision to Implement the NOX SIP Call,'' dated September 
30, 1999, and originally submitted to EPA for approval on September 30, 
1999. The revisions to the narrative material do not affect the 
regulatory program, which was also approved by EPA on December 27, 2000 
(65 FR 81743) along with the SIP narrative material.
    On August 10, 2002, Massachusetts submitted a SIP revision to 
revise the State's NOX SIP Call emissions budget for the 
non-EGU and highway mobile source categories (See Table 2). The 
revision was submitted, as requested by EPA, to make Massachusetts' 
non-EGU and highway mobile emissions budgets consistent with EPA's 
March 2, 2000 technical revision to the NOX SIP Call 
budgets. The budget revisions affect only the SIP narrative material 
``Background Document and Technical Support for Public Hearings on the 
Proposed Revisions to State Implementation Plan for Ozone,'' dated July 
1999, and originally submitted to EPA for approval on November 19, 
1999. The revisions to the narrative material do not effect the 
regulatory program, which was also approved by EPA on December 27, 2000 
(65 FR 81743) along with the SIP narrative material.
    On September 20, 2001, Rhode Island submitted a SIP revision to 
revise the State's NOX SIP Call emissions budget for the 
non-EGU and highway mobile source categories (See Table 2). The 
revision was submitted, as requested by EPA, to make Rhode Island's 
non-EGU and highway mobile emissions budgets consistent with EPA's 
March 2, 2000 technical revision to the NOX SIP Call 
budgets. The budget revisions affect only the SIP narrative material 
``NOX State Implementation Plan (SIP) Call Narrative,'' 
dated September 22, 1999, and originally submitted to EPA for approval 
on October 1, 1999. The revisions to the narrative material do not 
effect the regulatory program, which was also approved by EPA on 
December 27, 2000 (65 FR 81743) along with the SIP narrative material.

Table 2.--State NOX Budgets for CT, MA and RI With Revised NOX Budgets for the Non-EGU and Highway Mobile Source
                                                   Categories
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                                                   Non-EGU                   Non-road     Highway
         State NOX budgets           EGU point      point         Area        mobile       mobile       Total
                                      sources      sources      sources      sources      sources
----------------------------------------------------------------------------------------------------------------
CT................................        4,564        5,216        4,821       10,736       19,424       44,761
MA................................           23,492*               11,048       20,166       28,190       82,896
RI................................          985        1,635          448        2,455        3,843       9,366
----------------------------------------------------------------------------------------------------------------
*Massachusetts combines the EGU and Non-EGU sectors and the revised budget reflects the EPA's March 2, 2000
  revision to the Non-EGU budget increasing it from 10,296 to 10,298.

V. Why Are We Approving the NOX SIP Call Submittals From 
Connecticut, Massachusetts and Rhode Island Together?

    As discussed in our December 27, 2000 approval notice, Connecticut, 
Massachusetts, Rhode Island, and EPA signed a memorandum of 
understanding agreeing to redistribute the EGU portions of the three 
states' NOX budgets amongst themselves. Therefore, it is 
necessary to consider the adopted 2007 NOX emission budgets 
and adopted NOX reducing measures in the three states 
together to approve any individual state SIP submittal as meeting the 
NOX SIP Call.
    Under the MOU, the combined 2007 controlled emission levels did not 
change for the three states, only the individual state EGU allocations 
were redistributed to provide additional flexibility and consistency 
with existing programs among these three states. EPA supports this 
concept because such a redistribution is no different than the effects 
of trading. For a detailed discussion of why EPA supports the concept 
that states can collectively redistribute their NOX SIP Call 
budgets, see the proposed notice dated, September 15, 1999 (64 FR 
49989).
    As indicated in Table 3, the budget revisions submitted by the 
states collectively achieve at least the same

[[Page 36924]]

NOX reduction as the EPA's Phase I and Proposed Phase II 
budgets. Therefore, EPA finds that the NOX SIP Call 
submittals from the three states collectively meet both Phase I and II 
of the NOX SIP Call as published to date.

 Table 3.--State Total NOX Budgets for CT, MA and RI Reflecting the Revisions to Meet Both Phase I and II of the
                                               EPA's NOX SIP Call
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                                                                NOX emission budget (tons)
                                         -----------------------------------------------------------------------
                                             SIP budgets                        EPA's phase I    EPS's proposed
                                           approved 12/27/     Revised SIP      NOX SIP call      phase II NOX
                                                2000             budgets           budget          call budget
----------------------------------------------------------------------------------------------------------------
CT......................................            44,993            44,761            42,891            42,850
MA......................................            83,345            82,896            85,871            84,838
RI......................................             9,798             9,366             9,570             9,378
                                         -------------------
    Total...............................           138,136           137,023           138,332           137,066
----------------------------------------------------------------------------------------------------------------

VI. What Are the Applicable Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 August 19, 2003. Interested 
parties should comment in response to the proposed rule rather than 
petition for judicial review, unless the objection arises after the 
comment period allowed for in the proposal. 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone.

    Dated: June 2, 2003.
Robert W. Varney,
Regional Administrator, EPA New England.

0
Part 52 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart H--Connecticut

0
2. Section 52.370 is amended by adding paragraph (c)(86)(ii)(C) and (D) 
to read as follows:


Sec.  52.370  Identification of plan.

* * * * *
    (c) * * *

[[Page 36925]]

    (86) * * *
    (ii) * * *
    (C) Letter from Connecticut Department of Environmental Protection 
dated August 1, 2002.
    (D) The SIP narrative ``Connecticut State Implementation Plan 
Revision to Revise the State's NOX Emissions Budget,'' dated 
July 22, 2002.

Subpart W--Massachusetts

0
3. Section 52.1120 is amended by adding paragraph (c)(124)(ii)(E) and 
(F) to read as follows:


Sec.  52.1120  Identification of plan.

* * * * *
    (c) * * *
    (124) * * *
    (ii) * * *
    (E) Letter from the Commonwealth of Massachusetts, Executive Office 
of Environmental Affairs, Department of Environmental Protection dated 
April 10, 2002.
    (F) The SIP narrative ``Technical Support Document for Public 
Hearings on Revisions to the State Implementation Plan for Ozone for 
Massachusetts, Amendments to Statewide Projected Inventory for Nitrogen 
Oxides,'' dated March 2002.

Subpart OO--Rhode Island

0
4. Section 52.2070 is amended by adding new entries to the end of the 
table in paragraph (e) to read as follows:


Sec.  52.2070  Identification of plan.

* * * * *
    (e) * * *

                                                               Rhode Island Non Regulatory
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    Name of non regulatory SIP       Applicable geographic or        State submittal date/
            provision                   nonattainment area              effective date                EPA approved date                Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
September 20, 2001 letter from     Statewide...................  Submitted September 20, 2001  June 20, 2003..................  Submitting the ``NOX
 Rhode Island Department of                                                                    [Insert FR citation from          State Implementation
 Environmental Management.                                                                      published date].                 Plan (SIP) Call
                                                                                                                                 Narrative,'' revised
                                                                                                                                 September 2001.
NOX State Implementation Plan      Statewide...................  Submitted September 20, 2001  June 20, 2003..................  ........................
 (SIP) Call Narrative, revised                                                                 [Insert FR citation from
 September 2001.                                                                                published date.
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[FR Doc. 03-15126 Filed 6-19-03; 8:45 am]
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