Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63921

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CT057–7216a; FRL–7114–9]

Approval and Promulgation of Air

Quality Implementation Plans;

Connecticut; Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a State

Implementation Plan (SIP) revision

submitted by the State of Connecticut.

This action approves Connecticut’s onehour Ozone Attainment Demonstration

for the Connecticut portion of the New

York-Northern New Jersey-Long Island

(NY–NJ–CT) severe ozone

nonattainment area. EPA is also

approving a variety of enforceable

commitments associated with the

attainment demonstration,

Connecticut’s post-1999 rate-of-progress

(ROP) plan SIP and associated ROP

contingency measures, and a reasonably

available control measure (RACM)

analysis submitted by the state. The

post-1999 ROP plan and attainment

demonstration establish 2002, 2005 and

2007 volatile organic compound (VOC)

and nitrogen oxide (NOX) motor vehicle

emissions budgets for the area for use in

transportation conformity. EPA is also

approving these budgets.

Along with approving the

commitments for the Connecticut

portion of the New York-Northern New

Jersey-Long Island (NY–NJ–CT) severe

ozone nonattainment area, EPA is also

approving a modification to the

previously approved enforceable

commitment associated with the

attainment demonstration for the

Greater Connecticut ozone

nonattainment area. That modification

changes the date for submittal of the

mid-course review of the attainment

status of the one-hour ozone

nonattainment area from December 31,

2003 to December 31, 2004.

EFFECTIVE DATE: This rule becomes

effective on January 10, 2002.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection by appointment

weekdays from 9 a.m. to 4 p.m., at the

Office of Ecosystem Protection, U.S.

Environmental Protection Agency, EPANew England, 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:

Richard P. Burkhart, (617) 918–1664.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used, we mean

EPA.

This supplementary information

section is organized as follows:

I. What Connecticut SIP revisions are the

topics of this action and what previous

action has EPA taken on these SIP

revisions?

II. What are the requirements for approval of

the attainment demonstration?

III. What comments did EPA receive on the

proposed approvals and how have we

responded?

IV. Final EPA Action

V. Administrative Requirements

I. What Connecticut SIP Revisions Are

the Topics of This Action and What

Previous Action Has EPA Taken on

These SIP Revisions?

A. Attainment Demonstration and

Enforceable Commitments

EPA is approving an attainment

demonstration SIP submitted on

September 16, 1998 by the Connecticut

Department of Environmental Protection

(DEP) for the Connecticut portion of the

NY–NJ–CT one-hour severe ozone

nonattainment area, as modified on

February 8, 2000 by an addendum.

Connecticut also submitted additional

SIP elements for its attainment

demonstration on October 15, 2001. All

three submittals are discussed in this

section.

EPA published a Notice of Proposed

Rulemaking (NPR) for the State of

Connecticut’s portion of the NY–NJ–CT

severe area’s ozone attainment

demonstration on December 16, 1999

(64 FR 70348). In that action, EPA

proposed to conditionally approve the

ozone attainment demonstration

submitted by the state. We identified the

following items in the December 16,

1999 rulemaking as conditions upon

which we would base our final

approval: (1) Submission of adequate

motor vehicle emission budgets for both

VOC and NOX; (2) submission of control

measures necessary to meet the ROP

requirement from 1999 to the attainment

year of 2007, including ROP target level

calculations for 2002, 2005 and 2007; (3)

a commitment to submit additional

control measures to make up for the

projected need for additional controls to

ensure attainment of the one-hour ozone

standard by November 2007; and (4) a

commitment to perform a mid-course

review. EPA also proposed, in the

alternative, to disapprove the attainment

demonstration if Connecticut did not

submit these items. Also, on December

16, 1999, EPA proposed to approve and/

or conditionally approve or disapprove

in the alternative the attainment

demonstration SIPs for nine other areas

in the eastern United States (64 FR

70317).

On February 22, 2000 (65 FR 8703),

EPA published a notice of availability

announcing two guidance memoranda

relating to the ten one-hour ozone

attainment demonstrations (including

the Connecticut portion of the NY–NJ–

CT severe area) proposed for approval or

conditional approval on December 16,

1999. The guidance memoranda are

entitled: ‘‘Guidance on Motor Vehicle

Emissions Budgets in One-Hour Ozone

Attainment Demonstrations,’’ dated

November 3, 1999, and ‘‘Guidance on

the Reasonably Available Control

Measures (RACM) Requirement and

Attainment Demonstration Submissions

for Ozone Nonattainment Areas,’’ dated

November 30, 1999.

On July 28, 2000 (65 FR 46383), EPA

published a notice of supplemental

proposed rulemaking relating to the ten

one-hour ozone attainment

demonstrations (including the

Connecticut portion of the NY–NJ–CT

severe area) proposed for approval or

conditional approval on December 16,

1999. In the supplemental notice, EPA

clarified and expanded on two issues

relating to the motor vehicle emissions

budgets in the attainment demonstration

SIPs. In addition, EPA reopened the

comment period to take comment on

those two issues and to allow comment

on any additional materials that were

placed in the dockets for the ten

proposed actions close to or after the

initial comment period closed on

February 14, 2000.

EPA received comments in response

to our December 16, 1999 proposal and

the supplemental notice. We address the

comments relevant to the Connecticut

portion of the NY–NJ–CT severe

attainment demonstration in section IV

below.

On February 8, 2000, Connecticut

DEP submitted an addendum to the

ozone attainment demonstration for the

Connecticut portion of the NY–NJ–CT

severe nonattainment area, which

contains certain enforceable

commitments. The addendum was

submitted in response to requirements

for full approval EPA articulated in our

December 16, 1999 (64 FR 70348)

proposed rulemaking on the attainment

demonstration SIP. On June 4, 2001,

Connecticut DEP submitted a number of

outstanding SIP elements for approval

via parallel processing. Included in this

submittal were proposed revisions to

some of the enforceable commitments

made on February 8, 2000.

63922 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

On August 10, 2001 (66 FR 42172),

EPA proposed full approval of

Connecticut’s one hour ozone

attainment demonstration for the state’s

portion of the NY–NJ–CT severe area

and of various enforceable

commitments. EPA received no

comments on its August 10, 2001

proposal to approve the Connecticut one

hour ozone attainment demonstration.

On October 15, 2001, Connecticut

submitted final versions of the SIP

amendments sent to EPA on June 4,

2001.

In this action, EPA is approving the

attainment demonstration, the control

measures and the final enforceable

commitments made by the state. Those

enforceable commitments from the

February 8, 2000 and October 15, 2001

submittals include: (1) A commitment to

perform a mid-course review of the

attainment status of the one-hour ozone

nonattainment area by December 31,

2004; (2) a commitment to adopt and

submit by October 31, 2001 additional

necessary regional control measures to

offset the shortfall in emission

reductions needed to attain the onehour ozone standard by November 2007;

and (3) a commitment to adopt and

submit by October 31, 2001, additional

necessary intrastate control measures to

offset the shortfall in emission

reductions needed to attain the onehour ozone standard by November 2007.

With regard to the specific control

measures that the state will adopt to

offset the shortfall in emission

reductions, the Connecticut DEP has

committed to adopt and submit: (1)

Additional restrictions on VOC

emissions from mobile equipment and

repair operations and (2) requirements

to reduce VOC emissions from certain

consumer products.

B. Post-1999 Rate-of-Progress Emission

Reduction Plan

The post-1999 ROP plan documents

how Connecticut complied with the

provisions of section 182(c)(2)(B) of the

Act through 2007. This section of the

Act requires that states containing

certain ozone nonattainment areas

develop strategies to reduce emissions

of the pollutants that react to form

ground level ozone.

EPA is approving the post-1999 ROP

emission reduction plan the State of

Connecticut submitted on October 15,

2001 for the state’s portion of the NY–

NJ–CT severe ozone nonattainment area

as a revision to Connecticut’s SIP. For

purposes of meeting the ROP

requirements, Connecticut, New York

and New Jersey each submitted a plan

to reduce emissions within their own

portion of the nonattainment area. EPA

is taking action today only on the

Connecticut portion of the NY–NJ–CT

post-1999 plan. EPA will take action on

the New York and New Jersey post-99

plans separately. On August 10, 2001

(66 FR 42178), EPA published a

proposed rulemaking for the State of

Connecticut’s proposed post-99 plan

that the state submitted for approval via

parallel processing on June 4, 2001. EPA

received no comments regarding its

proposal to approve the Connecticut

post-1999 ROP plan.

C. Transportation Conformity Budgets

Transportation conformity is required

by section 176(c) of the Clean Air Act

(CAA or Act), and EPA’s transportation

conformity rule requires that

transportation plans, programs, and

projects conform to state air quality

implementation plans. Conformity to a

SIP means that transportation activities

will not produce new air quality

violations, worsen existing violations, or

delay timely attainment of the national

ambient air quality standards. States are

required to establish motor vehicle

emissions budgets in any control

strategy SIP they submit for attainment

and maintenance of the national

ambient air quality standards.

In the December 16, 1999 proposed

rulemaking on the Connecticut

attainment demonstration, EPA

proposed, in the alternative, to

disapprove the attainment

demonstration if Connecticut did not

submit adequate motor vehicle

emissions budgets and a commitment to

adopt and submit additional control

measures to make up for the projected

need for additional controls to ensure

attainment of the one-hour ozone

standard by November 2007. On

February 8, 2000, the Connecticut DEP

submitted revisions to the NY–NJ–CT

attainment demonstration which

contained 2007 motor vehicle emissions

budgets for VOC and NOX, as well as the

necessary enforceable commitment.

A public comment period was held on

these budgets when they were posted at

www.epa.gov/oms/transp/conform/

currsips.htm. The public comment

period began on February 14, 2000, and

closed on March 20, 2000. EPA sent a

letter to Connecticut DEP on May 31,

2000 finding these budgets adequate for

use in transportation conformity

determinations. EPA received no public

comments during that public comment

period.

On June 16, 2000 (65 FR 37778), EPA

notified the public that we had found

the 2007 VOC and NOX motor vehicle

emission budgets Connecticut submitted

on February 8, 2000 adequate for

conformity purposes. These budgets

became effective on July 3, 2000 (65 FR

37779).When we originally proposed

approval of the Connecticut portion of

the NY–NJ–CT severe area attainment

demonstration on December 16, 1999,

however, EPA did receive comments

that opposed EPA determining budgets

adequate for transportation conformity

purposes. EPA responded to all of those

comments before determining the 2007

budgets adequate. A copy of our

response to comments is available at

http://www.epa.gov/oms/transp/

conform/resp_ct.pdf.

In this notice, EPA is approving into

the SIP the 2007 budgets for the

Connecticut portion of the NY–NJ–CT

severe area. EPA is also approving two

enforceable commitments related to the

conformity budgets. Those are: (1) a

commitment to revise the attainmentlevel 2007 motor vehicle emissions

budgets within one year of the date that

EPA releases the final version of our

motor vehicle emissions model,

MOBILE6; and (2) a commitment to

recalculate and submit revised motor

vehicle emissions budgets if any

additional motor vehicle control

measures are adopted to address the

shortfall.

We are only approving the 2007

budgets to be used for conformity

purposes until Connecticut submits

revised 2007 motor vehicle emissions

budgets using MOBILE6 and/or revised

2007 budgets associated with mobile

source measures to fill the shortfall and

we have found them adequate. At that

point, our approval of the 2007 budgets

will terminate and the new adequate

2007 budgets will apply for conformity

purposes. For more information, please

see the proposal published on August

10, 2001 (66 FR 42172).

On July 28, 2000 (65 FR 46383), EPA

published a notice of supplemental

proposed rulemaking relating to ten

one-hour ozone attainment

demonstrations (including the

Connecticut portion of the NY–NJ–CT

severe area) proposed for approval or

conditional approval on December 16,

1999. In the supplemental notice, EPA

clarified and expanded on two issues

relating to the motor vehicle emissions

budgets in the attainment demonstration

SIPs. In addition, EPA reopened the

comment period to take comment on

those two issues and to allow comment

on any additional materials that were

placed in the dockets for the ten

proposed actions close to or after the

initial comment period closed on

February 14, 2000.

On June 4, 2001, Connecticut DEP

submitted for parallel processing its

proposed post-1999 ROP plan which

contains 2002, 2005 and 2007 motor

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63923

vehicle emissions budgets for nitrogen

oxides (NOX) and volatile organic

compounds (VOCs) for the State’s

portion of the NY–NJ–CT severe area.

The 2007 motor vehicle emissions

budgets contained in the Connecticut

post-1999 ROP plan match the

conformity budgets contained in the

state’s attainment demonstration

submitted on February 15, 2000. The

2002 and 2005 motor vehicle emissions

budgets are new budgets established by

the post-1999 ROP plan. The following

table contains these NOX and VOC

motor vehicle emissions budgets in

units of tons per summer day:

TABLE 1.—MOTOR VEHICLE EMISSIONS

BUDGETS FOR USE IN CONFORMITY

2002 2005 2007

VOC (tpsd) .............. 15.20 11.42 9.69

NOX (tpsd) .............. 38.39 29.01 23.68

EPA opened a 30-day public comment

period for these budgets on its

conformity Web site on August 10, 2001

(see http://www.epa.gov/otaq/transp/

conform/currsips.htm). The comment

period closed on September 10, 2001,

and EPA did not receive any comments

on these conformity budgets. On

November 1, 2001, EPA issued a letter

to Connecticut determining that these

budgets were adequate for use in

transportation conformity

determinations. The 2002 and 2005

motor vehicle emissions budgets

become effective December 26, 2001.

On October 15, 2001, Connecticut

DEP submitted its final post-1999 ROP

plan which contains 2002, 2005 and

2007 motor vehicle emissions budgets

for nitrogen oxides (NOX) and volatile

organic compounds (VOCs) in final form

for the Connecticut portion of the NY–

NJ–CT severe area. These budgets are

identical to those submitted for parallel

processing and posted for comment on

EPA’s Web site. In this notice, in

addition to approving the 2007 motor

vehicle emissions budgets, EPA is

approving into the SIP the 2002 and

2005 motor vehicle emissions budgets

for VOC and NOX from the post-1999

plan.

D. Reasonably Available Control

Measures (RACM)

EPA is approving as a revision to

Connecticut’s SIP the RACM analysis

plan the State of Connecticut finalized

on October 15, 2001 for the State’s

portion of the NY–NJ–CT severe ozone

nonattainment area.

On August 10, 2001 (66 FR 42178),

EPA published a proposed rulemaking

for Connecticut’s proposed RACM plan

that the state submitted for approval via

parallel processing on August 2, 2001.

EPA received no comments regarding its

proposal to approve the Connecticut

RACM plan.

II. What Are the Requirements for

Approval of the Attainment

Demonstration?

A. Attainment Demonstration and

Budgets

On February 8, 2000, Connecticut

DEP submitted an addendum to the

ozone attainment demonstrations for the

Connecticut portion of the NY–NJ–CT

severe nonattainment area. Connecticut

submitted the addendum in response to

EPA’s requirements for full approval as

explained in our proposed rulemaking

on the attainment demonstration SIP.

Connecticut DEP held a public hearing

on the addendum on January 6, 2000.

The February 8, 2000 addendum

contained 2007 VOC and NOX motor

vehicle emissions budgets for the

Connecticut portion of the NY–NJ–CT

severe nonattainment area. Connecticut

calculated the motor vehicle emissions

budgets to be consistent with

requirements Connecticut is relying on

in its attainment demonstration for the

Connecticut portion of the NY–NJ–CT

severe area. Connecticut also

incorporated credit for the Tier 2/sulfur

program in calculating the emissions

budgets consistent with the November

8, 1999 memorandum entitled ‘‘1-Hour

Ozone Attainment Demonstrations and

Tier 2/Sulfur Rulemaking’’ from Lydia

Wegman, Office of Air Quality Planning

and Standards and Merrylin Zaw-Mon,

Office of Mobile Sources. The motor

vehicle emissions budgets for 2007 for

VOC and NOX submitted by Connecticut

are shown in Table 1.

All States whose attainment

demonstration includes the effects of

the Tier 2/sulfur program have

committed to revise and resubmit their

motor vehicle emissions budgets after

EPA releases the MOBILE6 model. On

February 8, 2000, Connecticut

submitted a commitment to revise the

2007 motor vehicle budgets in the

attainment demonstration within one

year of EPA’s release of the MOBILE6

model. In this action, EPA is approving

this commitment to revise the 2007

motor vehicle budgets in the attainment

demonstration within one year of EPA’s

release of the MOBILE6 model.

As we proposed in our July 28, 2000

SNPR (65 FR 46383), today’s final

approval of the budgets contained in the

2007 attainment plan will be effective

for conformity purposes only until such

time as revised motor vehicle emissions

budgets are submitted (pursuant to the

commitment to submit revised budgets

using the MOBILE6 model within one

year of EPA’s release of that model) and

we have found those revised budgets

adequate. We are only approving the

attainment demonstration and its

current budgets because Connecticut

has provided an enforceable

commitment to revise the 2007 budgets

using the MOBILE6 model within one

year of EPA’s release of that model.

Therefore, we are limiting the duration

of our approval of the current 2007

budgets only until such time as the

revised budgets are found adequate.

Those revised 2007 budgets, once found

adequate, will be more appropriate than

the budgets we are approving for

conformity purposes for the time being.

Similarly, EPA is only approving the

2007 attainment demonstration and its

current 2007 budgets because

Connecticut has provided an

enforceable commitment to submit new

budgets as a revision to the attainment

SIP consistent with any new measures

submitted to fill any shortfall, if the

additional control measures affect onroad motor vehicle emissions.

Therefore, we are limiting the duration

of our approval of the current 2007

budgets only until such time as any

such revised budgets are found

adequate. Those revised 2007 budgets,

once found adequate, will similarly be

more appropriate than the budgets we

are approving for conformity purposes

for the time being.

The Addendum also includes

Connecticut’s analysis of the future air

quality design value for the Connecticut

portion of the NY–NJ–CT severe

nonattainment area, which is identical

to the EPA analysis found in the

Technical Support Document to the

notice of proposed rulemaking

published December 16, 1999. This

analysis supports the contention

outlined in the notice of proposed

rulemaking that additional emission

controls beyond the benefits of the Tier

2/Sulfur program are needed for the

Connecticut portion of the NY–NJ–CT

severe area to demonstrate attainment.

B. Enforceable Commitments to Adopt

Additional Control Measures

In our December 16, 1999 proposed

conditional approval of Connecticut’s

ozone attainment demonstration, EPA

said we did not believe the attainment

analysis submitted at that time for NY–

NJ–CT area demonstrates attainment by

the year 2007. EPA’s analysis to

determine how much additional

emission reduction is needed before we

can approve Connecticut’s attainment

demonstration showed an ozone

shortfall of 5 ppb for the NY–NJ–CT

63924 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

severe nonattainment. In other words,

our analysis predicted that the NY–NJ–

CT area would remain 5 ppb over the

NAAQS if Connecticut and its

neighboring states do not achieve

emission reductions beyond those

included in the attainment

demonstrations submitted by the states

of Connecticut, New Jersey and New

York. From this 5 ppb shortfall value we

developed additional local emission

reduction targets, and we recommended

that, at a minimum, an additional 3.8%

VOC and 0.3% NOX reduction from base

year 1990 inventories would be

necessary to approve the attainment

demonstration for this area. These

additional reductions were to be over

and above the CAA measures required

for this area and the measures already

relied on in the demonstration of

attainment. Additionally, since

reductions from EPA’s Tier 2 tailpipe

and low sulfur-in-fuel standards were

already included in the EPA analysis,

the percent reduction figures were also

over and above Tier 2/Sulfur reductions.

EPA directed the three states within the

nonattainment area to work together to

achieve these reductions.

In the February 8, 2000 addendum to

the attainment demonstration for the

Connecticut portion of the NY–NJ–CT

severe ozone nonattainment area,

Connecticut included enforceable

commitments to submit control

measures for additional emission

reductions to make-up for the shortfall

outlined in EPA’s December 16, 1999

proposed conditional approval.

Specifically, Connecticut committed to:

(1) Adopt and submit by December 31,

2000 additional NOX limits applicable

to municipal waste combustors (MWCs);

(2) adopt and submit by October 31,

2001 additional necessary regional

control measures to offset the shortfall

in emission reductions necessary to

attain the one-hour ozone standard by

November 2007; and (3) adopt and

submit by October 31, 2001, additional

necessary intrastate control measures to

offset the emission reduction shortfall in

order to attain the one-hour ozone

standard by November 2007.

The final approval of the Connecticut

DEP regulation that reduces emissions

of NOX from Municipal Waste

Combustors (MWC) below previously

required levels was granted by EPA

Region I’s Regional Administrator on

November 9, 2001. The approved MWC

rule will be promulgated at 40 CFR

52.370(c)(90). The additional NOX

reductions that will be achieved by this

regulation were not assumed in the

attainment demonstration modeling

submitted by the state and are thus

eligible to fill the emission reduction

shortfall necessary for attainment. Since

we have already approved this rule, we

will not take action on the February 8,

2000 commitment regarding the MWC

rule.

In our August 10, 2001 proposed full

approval rulemaking notice on the

attainment demonstration, we indicated

that the shortfall in emission reductions

for the Connecticut portion of the

nonattainment area was 5.3 tpsd of VOC

and 0.5 tpsd of NOX. Due to a correction

we made to Connecticut’s estimate of

base year VOC emissions from

architectural and industrial

maintenance (AIM) coatings, the VOC

shortfall is now considered to be 5.4

tpsd. In its October 15, 2001 submittal,

Connecticut DEP outlines how the

individual strategies it is committing to

pursue will be sufficient to achieve

reductions that will eliminate the

shortfall.

In its June 4, 2001 submittal to EPA,

Connecticut articulated that it has

narrowed the list of further possible

control measures for filling the shortfall

to those for which model rules were

developed by the Ozone Transport

Commission (OTC). The OTC model

rules include measures to reduce VOC

from consumer products, portable fuel

containers, AIM coatings, mobile

equipment refinishing and repair

operations, and solvent cleaning

operations. The OTC model rules also

include additional NOX controls for fuel

combustion sources, including gas

turbines, stationary reciprocating

engines, and industrial boilers. These

model rules would achieve reductions

beyond those already assumed in

Connecticut’s SIP for some of these

measures. At the public hearing

Connecticut DEP held on July 10, 2001,

the DEP solicited public comment on

each of the model rules to determine

those that may be most appropriate for

adaptation into Connecticut’s

regulations to address the shortfalls EPA

identified for attaining the one-hour

ozone standard and to make progress

toward attaining the eight-hour ozone

standard.

Subsequent to the public hearing, the

Connecticut DEP has decided it would

pursue adoption of: (1) additional

restrictions on VOC emissions from

mobile equipment refinishing and repair

operations; and (2) requirements to

reduce VOC emissions from certain

consumer products. In its October 15,

2001 submittal, Connecticut is

committing to pursue adoption of

regulations for these two categories.

Connecticut has proposed a rule on

mobile equipment refinishing and repair

operations and held a public hearing on

it on September 15, 2001. The rule is

scheduled to be adopted by the end of

2001. Connecticut DEP has begun the

adoption process for the rule covering

consumer products. Both of these rules

will be adopted and implemented

within a time period fully consistent

with the NY–NJ–CT nonattainment area

attaining the standard by its 2007

attainment date. In today’s action, EPA

is approving the enforceable

commitments Connecticut DEP

submitted to adopt control measures to

offset the shortfall in emission

reductions necessary to attain the onehour ozone standard by November 2007.

C. Mid-Course Review

A mid-course review (MCR) for the

NY–NJ–CT severe area is a reassessment

of modeling analyses and more recent

monitored data to determine if the

prescribed control strategy is resulting

in emission reductions and air quality

improvements needed to attain the

ambient air quality standard for ozone

as expeditiously as practicable.

EPA believes that a commitment to

perform a MCR is a critical element of

the weight of evidence (WOE) analysis

for the attainment demonstration on

which EPA proposed action in

December 1999. To approve the

attainment demonstration SIP for the

Connecticut portion of the New York

City area, EPA believes that the state

must have an enforceable commitment

to perform a MCR.

Originally, the Connecticut DEP

submitted an enforceable commitment

with its attainment demonstration on

September 16, 1998. The commitment

made was to submit a MCR in the 2001/

2002 time frame and an additional MCR

in 2005. In our December 16, 1999

proposed conditional approval, EPA

suggested that Connecticut revise its

commitment to provide for the MCR

immediately following the 2003 ozone

season, so that the MCR would reflect

regional NOX reductions that were

scheduled to occur by May 1, 2003

under the NOX SIP call. Connecticut

included this commitment in its

February 8, 2000 submittal.

In the summer of 2000, the Court of

Appeals for the D.C. Circuit issued an

order providing that EPA could not

mandate that states require source

compliance with rules adopted to meet

the SIP call before May 2004. Thus,

consistent with more recent advice from

us, and with the original intent that the

MCR reflect the SIP call reductions,

Connecticut has revised the submittal

date of the MCR from December 31,

2003 to December 31, 2004. This new

due date, and the logic behind its

choice, also effects the Greater

Connecticut ozone nonattainment area.

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63925

We have reviewed the commitment and

approve this SIP revision for both the

Connecticut portion of the NY–NJ–CT

severe nonattainment area and the

Greater Connecticut area. This new date

is consistent with the EPA

recommendation for submittal of the

mid-course review on the attainment

demonstration and should provide the

most robust assessment of whether the

state is on-track to attain the 1-hour

ozone standard by its attainment date.

D. Post-1999 Rate-of-Progress Plan

This section is organized as follows:

1. What action is EPA taking today?

2. What are Connecticut’s target

emission levels for VOC and NOX, and

will the state’s emissions be below these

targets?

3. What control strategy will

Connecticut use to meet its emission

target levels?

4. How did Connecticut meet the

contingency measure requirement?

1. What Action Is EPA Taking Today?

EPA is approving the post-1999 rateof-progress (ROP) emission reduction

plan the State of Connecticut submitted

for the state’s portion of the NY–NJ–CT

severe ozone nonattainment area as a

revision to Connecticut’s SIP. For

purposes of meeting the ROP

requirements, Connecticut, New York

and New Jersey each submitted a plan

to reduce emissions within their own

portion of the nonattainment area. EPA

is taking action today only on the

Connecticut portion of the NY–NJ–CT

post-1999 plan.

The post-1999 ROP plan documents

how Connecticut complied with the

provisions of section 182 (c)(2)(B) of the

Act through 2007. This section of the

Act requires that states containing

certain ozone nonattainment areas

develop strategies to reduce emissions

of the pollutants that react to form

ground level ozone.

On August 10, 2001 (66 FR 42178),

EPA published a proposed rulemaking

on the State of Connecticut’s ROP

demonstration for 2002, 2005 and 2007.

EPA received no comments regarding its

proposal to approve the Connecticut

post-1999 ROP plan.

2. What Are Connecticut’s Target

Emission Levels for VOC and NOX, and

Will the State’s Emissions Be Below

These Targets?

Connecticut’s 2002, 2005, and 2007

target emission levels are shown in table

2, along with the state’s projected,

controlled emission levels. These target

emission levels represent the maximum

amount of emissions that Connecticut

can emit in each year, given the state’s

post-1999 emission reduction

requirements.

TABLE 2.—TARGET LEVELS AND PROJECTED, CONTROLLED EMISSIONS

Description 2002 VOC

(tpsd)

2002 NOX

(tpsd)

2005 VOC

(tpsd)

2005 NOX

(tpsd)

2007 VOC

(tpsd)

2007 NOX

(tpsd)

Target Level ..................................................................... 94.8 115.2 82.7 114.9 76.8 112.9

Projected Controlled Emissions ....................................... 89.2 98.2 80.4 83.1 76.8 76.8

The emission targets shown in Table

2 reflect a minor adjustment we made to

Connecticut’s 1990 emission estimate

for AIM coatings, which we discuss in

further detail below. This modification

does not affect the state’s ability to meet

the statutory ROP requirement.

3. What Control Strategy Will

Connecticut Use To Meet Its Emission

Target Levels?

EPA’s August 10, 2001 proposed

approval action outlined the control

strategy that Connecticut used to meet

its emission target levels. In summary,

the state’s control strategy consists of

the emission reductions from the

continued enforcement of measures EPA

approved as part of the State’s 15

percent and post-1996 (through 1999)

emission reduction plans (64 FR 12015

(March 10, 1999) and 65 FR 62624

(October 19, 2000), respectively),

coupled with emission reductions from

the following programs: Connecticut’s

NOX budget program affecting large

point sources; municipal waste

combustor (MWC) emission limits;

federal non-road engine standards;

phase II of the reformulated gasoline

program; reductions from the final cutpoints for the state’s enhanced

automobile inspection and maintenance

program; reductions from the combined

effect of tier II automobile standards and

low sulfur in gasoline requirements; and

phase I controls on heavy duty diesel

engines. All these control measures are

approved as part of Connecticut’s SIP or

are otherwise enforceable under the Act.

We agree with Connecticut’s

determination of emission reductions

from its NOX and VOC control strategy,

with the minor exception of the

architectural and industrial

maintenance coatings (AIM) category

that was part of the state’s 15 percent

plan. We agree with the 20 percent

reduction Connecticut applied to its

projected emissions for this source

category due to a federal rule on these

coatings. However, because Connecticut

used different emission estimation

methodologies to calculate its 1990 AIM

emissions (used in development of the

target levels) and its 1996 AIM

emissions (used to project emissions),

EPA concluded that an overstatement of

reductions occurred due to these

differing emission estimation

techniques. To correct this discrepancy,

we applied the more accurate 1996 AIM

coatings emissions estimation

methodology to Connecticut’s 1990 base

year estimate, and determined that

Connecticut’s base year emissions (the

‘‘ROP’’ inventory) for VOCs should be

lowered from 144.0 tpsd to 142.3 tpsd.

Inserting the correct 1990 emission

estimate into the State’s ROP calculation

yields the emission target levels shown

above in Table 2. It is important to note

that correcting this element of

Connecticut’s baseline inventory has no

effect on the choices the state has made

in designing its ROP plan and

contingency measures. Connecticut has

sufficient emission reductions beyond

what is required for these SIP elements

such that this adjustment simply

reduces that surplus slightly.

4. How Did Connecticut Meet the

Contingency Measure requirement?

Connecticut has met its contingency

measure obligation by using surplus

emission reductions generated by the

control measures in its post-1999 ROP

plan. EPA policy allows use of surplus

reductions that will occur in years after

the ROP plan from already adopted

measures to serve as contingency

measures for ROP plans. We are

approving Connecticut’s demonstration

that it meets the contingency measure

provision of section 182(c)(9) of the Act,

which requires contingency measures

for serious and above milestone failures

in ozone nonattainment areas classified

serious and above.

Connecticut still must meet the

contingency measure provision of

section 172(c)(9) of the Act, which

pertains to failure to attain the ozone

standard by the required date, but EPA

63926 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

is not obligated to approve such

measures prior to approving the

attainment demonstration. The EPA

believes the contingency measure

requirement of section 172(c)(9) is

independent from the attainment

demonstration requirements under

sections 172(c)(1) and 182(c)(2)(A). The

section 172(c)(9) contingency measure

requirement addresses the event that an

area fails to attain the ozone NAAQS by

the attainment date established in the

SIP and has no bearing on whether a

state has submitted a SIP that projects

attainment of the ozone NAAQS. The

attainment SIP provides a

demonstration that attainment ought to

be reached, but the contingency

measure SIP requirement of section

179(c)(9) concerns what is to happen

only if attainment is not actually

achieved. The EPA acknowledges that

contingency measures are an

independently required SIP revision,

but does not believe that submission of

contingency measures is necessary

before EPA may approve an attainment

SIP.

Connecticut’s post-1999 ROP plan

states that its large NOX surplus is

sufficient to meet both contingency

measure provisions of the Act. However,

the State’s surplus NOX reductions can

not be used to meet the 179(c)(9)

contingency measure requirement

because that requirement pertains to a

failure to meet the one hour ozone

standard by the area’s 2007 attainment

date, and therefore must consist of

measures that are surplus to the

measures needed for attainment. The

surplus NOX reductions in

Connecticut’s ROP plan are not surplus

to the measures needed for attainment.

In the event that attainment is not

achieved by 2007, there are a number of

EPA measures that will achieve

significant emission reductions between

2007 and 2009. These include

continuing reductions from EPA’s Tier 2

tailpipe standards and EPA’s standards

for a variety of non-road sources. We

have analyzed the Connecticut SIP and

determined that the contingency

obligation would be covered for this

area by these measures. More details on

EPA’s contingency measure analysis are

included in the docket for the

rulemaking action. While there is not an

approved SIP contingency measure that

would apply if the state failed to attain,

EPA believes that existing federally

enforceable measures would provide the

necessary substantive relief.

Other specific requirements of post1999 ROP plans and the rationale for

EPA’s proposed action are explained in

the NPR and will not be restated here.

See 66 FR 42178 (August 10, 2001).

E. SIP Elements EPA Approved Between

December 16, 1999 and Today

In the NPR for the Connecticut

attainment demonstration SIP published

on December 16, 1999, EPA stated that

it intended to publish, either before or

at the same time as publication of final

approval of the attainment

demonstration, a final approval of

Connecticut’s VOC RACT rules

pursuant to sections 182(b)(2)(A) and

(C) of the Clean Air Act, the 9% rate of

progress plan through 1999, the post-99

ROP plan, the state opt-in to the

National Low Emission Vehicle (NLEV)

program, and the NOX SIP call SIP for

the Connecticut portion of the NY–NJ–

CT severe area. These measures are

needed to fully approve the attainment

demonstration.

EPA approved the Connecticut VOC

RACT rules pursuant to sections

182(b)(2)(A) and (C) of Clean Air Act on

October 19, 2000 (65 FR 62620). EPA

approved the Connecticut area’s 9% rate

of progress plan on October 19, 2000 (65

FR 62624). EPA approved Connecticut’s

opt-in to the NLEV program on March

9, 2000 (65 FR 12476). EPA approved

Connecticut’s NOX SIP call SIP on

December 27, 2000 (65 FR 81743). This

action approves the post-99 plan for the

Connecticut portion of the NY–NJ–CT

severe nonattainment area.

Additionally, subsequent to the

December 16, 1999 proposal, EPA

granted full approval to two other SIP

elements in Connecticut. On March 9,

2000 (65 FR 12474), EPA approved

Connecticut’s Clean Fuel Fleets

Substitute Plan as meeting the

requirements of Section 182(c)(4) of the

Clean Air Act. On October 27, 2000 (65

FR 64357), EPA approved the

Connecticut Enhanced Inspection and

Maintenance program SIP, converting it

from a limited approval under the Clean

Air Act to a full approval.

With the submission and approval of

the SIP elements mentioned above,

Connecticut has in place all of the

required elements of the attainment

demonstration SIP. As discussed

elsewhere in this notice, Connecticut

has met all of the requirements for full

approval of its attainment

demonstration for the Connecticut

portion of the NY–NJ–CT severe area,

and EPA is approving it today. The New

York and New Jersey portions of the

area will be the topic of different

rulemaking actions.

III. What Comments Did EPA Receive

on the Proposed Approvals and How

Have We Responded?

As stated above, EPA did not receive

comments on its August 10, 2001

proposal for the attainment

demonstration, the post-99 plan, the

motor vehicle emissions budgets or the

RACM analysis. EPA did receive

comments from the public on the NPR

published on December 16, 1999 (64 FR

70332) for the Connecticut portion of

the NY–NJ–CT severe area’s ozone

attainment demonstration. EPA received

comments from Robert E. Yuhnke

(Attorney for Environmental Defense

and Natural Resources Defense

Council), the Midwest Ozone Group,

and ELM Packaging Company. EPA also

received comments from the public on

the supplemental proposed rulemaking

published on July 28, 2000 (65 FR

46383), in which EPA clarified and

expanded on two issues relating to the

motor vehicle emissions budgets in the

attainment demonstration SIPs.

Environmental Defense commented on

that supplemental proposal.

Additionally, on November 15, 2001,

Environmental Defense submitted

comments to EPA concerning several

proposals to approve the attainment

demonstrations for the New York and

New Jersey portions of the NY–NJ–CT

severe nonattainment area. These

comments were not directed at the

Connecticut attainment demonstration

and generally discussed only the New

York and New Jersey demonstrations in

any detail. There was one comment in

the letter that specifically focused on

the adequacy of Connecticut’s

commitment to submit enforceable

measures to address the emissions

reduction shortfall. See Letter from

Janea A. Scott and Val Washington to

Raymond Werner (November 15, 2001)

at section I.d. In section III.D., below,

EPA is responding to this comment

along with other comments concerning

the shortfall measures.

The following discussion summarizes

and responds to all of these comments.

For convenience, the comments we

received on previous NPRs have been

grouped into categories.

A. Attainment Demonstrations—Weight

of Evidence

Comment: The weight of evidence

approach does not demonstrate

attainment or meet CAA requirements

for a modeled attainment

demonstration. Commenters added

several criticisms of various technical

aspects of the weight of evidence

approach, including certain specific

applications of the approach to

particular attainment demonstrations.

These comments are discussed in the

following response.

Response: Under section 182(c)(2) and

(d) of the CAA, serious and severe ozone

nonattainment areas were required to

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63927

1The August 12, 1996 version of ‘‘appendix W to

part 51—Guideline on Air Quality Models’’ was the

rule in efect for these attainment demonstrations.

EPA is proposing updates to this rule, that will not

take effect until the rulemaking process for them is

complete.

2 Guidance on the Use of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

3 Ibid.

4 ‘‘Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled.’’ U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions Monitoring, and Analysis

Division, Air Quality Modeling Group, Research

Triangle Park, NC 27711, November 1999. Web site:

http://www.epa.gov/ttn/scram.

submit by November 15, 1994,

demonstrations of how they would

attain the 1-hour standard. Section

182(c)(2)(A) provides that ‘‘[t]his

attainment demonstration must be based

on photochemical grid modeling or any

other analytical method determined by

the Administrator, in the

Administrator’s discretion, to be at least

as effective.’’ As described in more

detail below, the EPA allows states to

supplement their photochemical

modeling results, with additional

evidence designed to account for

uncertainties in the photochemical

modeling, to demonstrate attainment.

This approach is consistent with the

requirement of section 182(c)(2)(A) that

the attainment demonstration ‘‘be based

on photochemical grid modeling,’’

because the modeling results constitute

the principal component of EPA’s

analysis, with supplemental information

designed to account for uncertainties in

the model. This interpretation and

application of the photochemical

modeling requirement of section

182(c)(2)(A) finds further justification in

the broad deference Congress granted

EPA to develop appropriate methods for

determining attainment, as indicated in

the last phrase of section 182(c)(2)(A).

The flexibility granted to EPA under

section 182(c)(2)(A) is reflected in the

regulations EPA promulgated for

modeled attainment demonstrations.

These regulations provide, ‘‘The

adequacy of a control strategy shall be

demonstrated by means of applicable air

quality models, data bases, and other

requirements specified in [40 CFR part

51, appendix W] (Guideline on Air

Quality Models).’’1 40 CFR 51.112(a)(1).

However, the regulations further

provide, ‘‘Where an air quality model

specified in appendix W * * * is

inappropriate, the model may be

modified or another model substituted

[with approval by EPA, and after] notice

and opportunity for public comment

* * * ’’ Appendix W, in turn, provides

that, ‘‘The Urban Airshed Model (UAM)

is recommended for photochemical or

reactive pollutant modeling applications

involving entire urban areas,’’ but

further refers to EPA’s modeling

guidance for data requirements and

procedures for operating the model. 40

CFR part 51, appendix W, section

6.2.1.a. The modeling guidance

discusses the data requirements and

operating procedures, as well as

interpretation of model results as they

relate to the attainment demonstration.

This provision references guidance

published in 1991, but EPA envisioned

the guidance would change as we

gained experience with model

applications, which is why the guidance

is referenced, but does not appear, in

appendix W. With updates in 1996 and

1999, the evolution of EPA’s guidance

has led us to use both the

photochemical grid model, and

additional analytical methods approved

by EPA.

The modeled attainment test

compares model predicted 1-hour daily

maximum ozone concentrations in all

grid cells for the attainment year to the

level of the NAAQS. The results may be

interpreted through either of two

modeled attainment or exceedance tests:

the deterministic test or the statistical

test. Under the deterministic test, a

predicted concentration above 0.124

parts per million (ppm) ozone indicates

that the area is expected to exceed the

standard in the attainment year and a

prediction at or below 0.124 ppm

indicates that the area is expected to not

exceed the standard. Under the

statistical test, attainment is

demonstrated when all predicted (i.e.,

modeled) 1-hour ozone concentrations

inside the modeling domain are at, or

below, an acceptable upper limit above

the NAAQS permitted under certain

conditions (depending on the severity of

the episode modeled).2

In 1996, EPA issued guidance 3 to

update the 1991 guidance referenced in

40 CFR part 51, appendix W, to make

the modeled attainment test more

closely reflect the form of the NAAQS

(i.e., the statistical test described above),

to consider the area’s ozone design

value and the meteorological conditions

accompanying observed exceedances,

and to allow consideration of other

evidence to address uncertainties in the

modeling databases and application.

When the modeling does not

conclusively demonstrate attainment,

EPA has concluded that additional

analyses may be presented to help

determine whether the area will attain

the standard. As with other predictive

tools, there are inherent uncertainties

associated with air quality modeling

and its results. The inherent

imprecision of the model means that it

may be inappropriate to view the

specific numerical result of the model as

the only determinant of whether the SIP

controls are likely to lead to attainment.

The EPA’s guidance recognizes these

limitations, and provides a means for

considering other evidence to help

assess whether attainment of the

NAAQS is likely to be achieved. The

process by which this is done is called

a weight of evidence (WOE)

determination. Under a WOE

determination, the state can rely on, and

EPA will consider in addition to the

results of the modeled attainment test,

other factors such as other modeled

output (e.g., changes in the predicted

frequency and pervasiveness of 1-hour

ozone NAAQS exceedances, and

predicted change in the ozone design

value); actual observed air quality

trends (i.e. analyses of monitored air

quality data); estimated emissions

trends; and the responsiveness of the

model predictions to further controls.

In 1999, EPA issued additional

guidance 4 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an additional component of

the WOE determination, which requires,

under certain circumstances, additional

emission reductions that are or will be

approved into the SIP, but that were not

included in the modeling analysis, that

will further reduce the modeled design

value. An area is considered to monitor

attainment if each monitor site has air

quality observed ozone design values

(4th highest daily maximum ozone

using the three most recent consecutive

years of data) at or below the level of the

standard. Therefore, it is appropriate for

EPA, when making a determination that

a control strategy will provide for

attainment, to determine whether or not

the model predicted future design value

is expected to be at or below the level

of the standard. Since the form of the 1-

hour NAAQS allows exceedances, it did

not seem appropriate for EPA to require

the test for attainment to be ‘‘no

exceedances’’ in the future model

predictions. The method outlined in

EPA’s 1999 guidance uses the highest

measured design value across all sites in

the nonattainment area for each of three

years. These three ‘‘design values’’

represent the air quality observed

during the time period used to predict

ozone for the base emissions. This is

appropriate because the model is

predicting the change in ozone from the

base period to the future attainment

date. The three yearly design values

63928 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

(highest across the area) are averaged to

account for annual fluctuations in

meteorology. The result is an estimate of

an area’s base year design value. The

base year design value is multiplied by

a ratio of the peak model predicted

ozone concentrations in the attainment

year (i.e., average of daily maximum

concentrations from all days modeled)

to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily maximum

concentrations from all days modeled).

The result is an attainment year design

value based on the relative change in

peak model predicted ozone

concentrations from the base year to the

attainment year. Modeling results also

show that emission control strategies

designed to reduce areas of peak ozone

concentrations generally result in

similar ozone reductions in all core

areas of the modeling domain, thereby

providing some assurance of attainment

at all monitors.

In the event that the attainment year

design value is above the standard, the

1999 guidance provides a method for

identifying additional emission

reductions, not modeled, which at a

minimum provide an estimated

attainment year design value at the level

of the standard. This step uses a locally

derived factor which assumes a linear

relationship between ozone and the

precursors.

A commenter criticized the 1999

guidance as flawed on grounds that it

allows the averaging of the three highest

air quality sites across a region, whereas

EPA’s 1991 and 1996 modeling

guidance requires that attainment be

demonstrated at each site. This has the

effect of allowing lower air quality

concentrations to be averaged against

higher concentrations thus reducing the

total emission reduction needed to

attain at the higher site. The commenter

does not appear to have described the

guidance accurately. The guidance does

not recommend averaging across a

region or spatial averaging of observed

data. The guidance does recommend

determination of the highest site in the

region for each of the three-year periods,

determined by the base year modeled.

For example, if the base year is 1990, it

is the amount of emissions in 1990 that

must be adjusted or evaluated (by

accounting for growth and controls) to

determine whether attainment results.

These 1990 emissions contributed to

three design value periods (1988–90,

1989–91 and 1990–92). Under the

approach of the guidance document,

EPA determined the design value for

each of those three-year periods, and

then averaged those three design values,

to determine the base design value. This

approach is appropriate because, as just

noted, the 1990 emissions contributed

to each of those periods, and there is no

reason to believe the 1990 (episodic)

emissions resulted in the highest or

lowest of the three design values.

Averaging the three years is beneficial

for another reason: It allows

consideration of a broader range of

meteorological conditions—those that

occurred throughout the 1988–1992

period, rather than the meteorology that

occurs in one particular year or even

one particular ozone episode within that

year. Furthermore, EPA relied on threeyear averaging only for purposes of

determining one component, i.e.—the

small amount of additional emission

reductions not modeled—of the WOE

determination. The WOE determination,

in turn, is intended to be part of a

qualitative assessment of whether

additional factors (including the

additional emissions reductions not

modeled), taken as a whole, indicate

that the area is more likely than not to

attain.

A commenter criticized the

component of this WOE factor that

estimates ambient improvement because

it does not incorporate complete

modeling of the additional emissions

reductions. However, the regulations do

not mandate, nor does EPA guidance

suggest, that states must model all

control measures being implemented.

Moreover, a component of this

technique—the estimation of future

design value—should be considered a

model-predicted estimate. Therefore,

results from this technique are an

extension of ‘‘photochemical grid’’

modeling and are consistent with

section 182(c)(2)(A). Also, a commenter

believes that EPA has not provided

sufficient opportunity to evaluate the

calculations used to estimate additional

emission reductions. EPA provided a

full 60-day period for comment on all

aspects of the proposed rule. EPA has

received several comments on the

technical aspects of the approach and

the results of its application, as

discussed above and in the responses to

the individual SIPs.

A commenter states that application

of the method of attainment analysis

used for the December 16, 1999 NPRs

will yield a lower control estimate than

if we relied entirely on reducing

maximum predictions in every grid cell

to less than or equal to 124 ppb on every

modeled day. However, the

commenter’s approach may

overestimate needed controls because

the form of the standard allows up to 3

exceedances in 3 years in every grid

cell. If the model over predicts observed

concentrations, predicted controls may

be further overestimated. EPA has

considered other evidence, as described

above, through the weight of evidence

determination.

When reviewing a SIP, the EPA must

make a determination that the control

measures adopted are reasonably likely

to lead to attainment. Reliance on the

WOE factors allows EPA to make this

determination based on a greater body

of information presented by the states

and available to EPA. This information

includes model results for the majority

of the control measures. Although not

all measures were modeled, EPA

reviewed the model’s response to

changes in emissions as well as

observed air quality changes to evaluate

the impact of a few additional measures,

not modeled. EPA’s decision was

further strengthened by each state’s

commitment to check progress towards

attainment in a mid-course review and

to adopt additional measures, if the

anticipated progress is not being made.

A commenter further criticized EPA’s

technique for estimating the ambient

impact of additional emissions

reductions not modeled on grounds that

EPA employed a rollback modeling

technique that, according to the

commenter, is precluded under EPA

regulations. The commenter explained

that 40 CFR part 51, appendix W,

section 6.2.1.e. provides, ‘‘Proportional

(rollback/forward) modeling is not an

acceptable procedure for evaluating

ozone control strategies.’’ Section 14.0

of appendix W defines ‘‘rollback’’ as ‘‘a

simple model that assumes that if

emissions from each source affecting a

given receptor are decreased by the

same percentage, ambient air quality

concentrations decrease

proportionately.’’ Under this approach if

20% improvement in ozone is needed

for the area to reach attainment, it is

assumed a 20% reduction in VOC

would be required. There was no

approach for identifying NOX

reductions.

The ‘‘proportional rollback’’ approach

is based on a purely empirically/

mathematically derived relationship.

EPA did not rely on this approach in its

evaluation of the attainment

demonstrations. The prohibition in

Appendix W applies to the use of a

rollback method which is empirically/

mathematically derived and

independent of model estimates or

observed air quality and emissions

changes as the sole method for

evaluating control strategies. For the

demonstrations under proposal, EPA

used a locally derived (as determined by

the model and/or observed changes in

air quality) ratio of change in emissions

to change in ozone to estimate

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63929

additional emission reductions to

achieve an additional increment of

ambient improvement in ozone.

For example, if monitoring or

modeling results indicate that ozone

was reduced by 25 ppb during a

particular period, and that VOC and

NOX emissions fell by 20 tons per day

and 10 tons per day respectively during

that period, EPA developed a ratio of

ozone improvement related to

reductions in VOC and NOX. This

formula assumes a linear relationship

between the precursors and ozone for a

small amount of ozone improvement,

but it is not a ‘‘proportional rollback’’

technique. Further, EPA uses these

locally derived adjustment factors as a

component to estimate the extent to

which additional emissions

reductions—not the core control

strategies—would reduce ozone levels

and thereby strengthen the weight of

evidence test. EPA uses the UAM to

evaluate the core control strategies.

This limited use of adjustment factors

is more technically sound than the

unacceptable use of proportional

rollback to determine the ambient

impact of the entire set of emissions

reductions required under the

attainment SIP. The limited use of

adjustment factors is acceptable for

practical reasons: it obviates the need to

expend more time and resources to

perform additional modeling. In

addition, the adjustment factor is a

locally derived relationship between

ozone and its precursors based on air

quality observations and/or modeling

which is more consistent with

recommendations referenced in

Appendix W and does not assume a

direct proportional relationship between

ozone and its precursors. Lastly, the

requirement that areas perform a midcourse review (a check of progress

toward attainment) provides a margin of

safety.

A commenter expressed concerns that

EPA used a modeling technique

(proportional rollback) that was

expressly prohibited by 40 CFR part 51

Appendix W, without expressly

proposing to do so in a notice of

proposed rulemaking. However, the

commenter is mistaken. As explained

above, EPA did not use or rely upon a

proportional rollback technique in this

rulemaking, but used UAM to evaluate

the core control strategies and then

applied its WOE guidance. Therefore,

because EPA did not use an ‘‘alternative

model’’ to UAM, it did not trigger an

obligation to modify Appendix W.

Furthermore, EPA did propose the use

the November 1999 guidance,

‘‘Guidance for Improving Weight of

Evidence Through Identification of

Additional Emission Reductions, Not

Modeled,’’ in the December 16, 1999

NPR and has responded to all comments

received on that guidance elsewhere in

this document.

A commenter also expressed concern

that EPA applied unacceptably broad

discretion in fashioning and applying

the WOE determinations. For all of the

attainment submittals proposed for

approval in December 1999 concerning

serious and severe ozone nonattainment

areas, EPA first reviewed the UAM

results. In all cases, the UAM results did

not pass the deterministic test. In two

cases—Milwaukee and Chicago—the

UAM results passed the statistical test;

in the rest of the cases, the UAM results

failed the statistical test. The UAM has

inherent limitations that, in EPA’s view,

were manifest in all these cases. These

limitations include: (1) Only selected

time periods were modeled, not the

entire three-year period used as the

definitive means for determining an

area’s attainment status; (2) inherent

uncertainties in the model formulation

and model inputs such as hourly

emission estimates, emissions growth

projections, biogenic emission

estimates, and derived wind speeds and

directions. As a result, for all areas, even

Milwaukee and Chicago, EPA examined

additional analyses to indicate whether

additional SIP controls would yield

meaningful reductions in ozone values.

These analyses did not point to the need

for additional emission reductions for

Springfield, Greater Connecticut,

Metropolitan Washington, DC, Chicago

and Milwaukee, but did point to the

need for additional reductions, in

varying amounts, in the other areas. As

a result, the other areas submitted

control requirements to provide the

indicated level of emissions reductions.

EPA applied the same methodology in

these areas, but because of differences in

the application of the model to the

circumstances of each individual area,

the results differed on a case-by-case

basis.

As another WOE factor, for areas

within the NOX SIP call domain, results

from the EPA regional modeling for

NOX controls as well as the Tier2/Low

Sulfur program were considered. Also,

for all of the areas, EPA considered

recent changes in air quality and

emissions. For some areas, this was

helpful because there were emission

reductions in the most recent years that

could be related to observed changes in

air quality, while for other areas there

appeared to be little change in either air

quality or emissions. For areas in which

air quality trends, associated with

changes in emissions levels, could be

discerned, these observed changes were

used to help decide whether or not the

emission controls in the plan would

provide progress towards attainment.

For Connecticut, between 1990 and

1999 VOC emissions were lowered by

26 percent and NOX emissions were

lowered by 19 percent. These precursor

emissions will continue to be reduced

within the state, which will help lower

ozone both within and downwind of

Connecticut. In addition the reduction

of precursor emissions in the large

metropolitan areas upwind of

Connecticut, along with power plant

emissions reductions, throughout the

eastern USA, will result in attainment of

the one-hour NAAQS by 2007 in

Connecticut. Air quality trend data for

the past 21 years, since 1980, show vast

improvement in ozone levels in

Connecticut. Over the past twelve to

fourteen years, the maximum design

value for the ozone monitors in the

severe portion of Connecticut has

dropped from 201 ppb, in the 1987–

1989 time frame (the value used to

classify this area in 1991), to 143 ppb

based on ozone data from 1999, 2000

and preliminary ozone data from 2001.

This is a drop of 58 ppb or 29 percent.

The commenter also complained that

EPA has applied the WOE

determinations to adjust modeling

results only when those results indicate

nonattainment, and not when they

indicate attainment. First, we disagree

with the premise of this comment: EPA

does not apply the WOE factors to

adjust model results. EPA applies the

WOE factors as additional analysis to

compensate for uncertainty in the air

quality modeling. Second, EPA has

applied WOE determinations to all of

the attainment demonstrations proposed

for approval in December 1999.

Although for most of them, the air

quality modeling results by themselves

indicated nonattainment, for two

metropolitan areas—Chicago and

Milwaukee, including parts of the States

of Illinois, Indiana, and Wisconsin, the

air quality modeling did indicate

attainment on the basis of the statistical

test.

The commenter further criticized

EPA’s application of the WOE

determination on grounds that EPA

ignores evidence indicating that

continued nonattainment is likely, such

as, according to the commenter,

monitoring data indicating that ozone

levels in many cities during 1999

continue to exceed the NAAQS by

margins as wide or wider than those

predicted by the UAM. EPA has

reviewed the evidence provided by the

commenter. The 1999 monitor values do

not constitute substantial evidence

indicating that the SIPs will not provide

63930 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

for attainment. These values do not

reflect either the local or regional

control programs which are scheduled

for implementation in the next several

years. Once implemented, these controls

are expected to lower emissions and

thereby lower ozone values. Moreover,

there is little evidence to support the

statement that ozone levels in many

cities during 1999 continue to exceed

the NAAQS by margins as wide or

wider than those predicted by the UAM.

Since areas did not model 1999 ozone

levels using 1999 meteorology and 1999

emissions which reflect reductions

anticipated by control measures, that are

or will be approved into the SIP, there

is no way to determine how the UAM

predictions for 1999 compare to the

1999 air quality. Therefore, we can not

determine whether or not the monitor

values exceed the NAAQS by a wider

margin than the UAM predictions for

1999. In summary, there is little

evidence to support the conclusion that

high exceedances in 1999 will continue

to occur after adopted control measures

are implemented.

In addition, the commenter argued

that in applying the WOE

determinations, EPA ignored factors

showing that the SIPs under-predict

future emissions, and the commenter

included as examples certain mobile

source emissions sub-inventories. EPA

did not ignore possible under-prediction

in mobile emissions. EPA is presently

evaluating mobile source emissions data

as part of an effort to update the

computer model for estimating mobile

source emissions. EPA is considering

various changes to the model, and is not

prepared to conclude at this time that

the net effect of all these various

changes would be to increase or

decrease emissions estimates. For

attainment demonstration SIPs that rely

on the Tier 2/Sulfur program for

attainment or otherwise (i.e., reflect

these programs in their motor vehicle

emissions budgets), States have

committed to revise their motor vehicle

emissions budgets after the MOBILE6

model is released. EPA will work with

States on a case-by-case basis if the new

emission estimates raise issues about

the sufficiency of the attainment

demonstration. If analysis indicates

additional measures are needed, EPA

will take the appropriate action.

B. Reliance on NOX SIP Call and Tier

2

Comment: Several commenters stated

that given the uncertainty surrounding

the NOX SIP Call at the time of EPA’s

proposals on the attainment

demonstrations, there is no basis for the

conclusion reached by EPA that states

should assume implementation of the

NOX SIP Call, or rely on it as a part of

their demonstrations. One commenter

claims that there were errors in the

emissions inventories used for the NOX

SIP Call Supplemental Notice (SNPR)

and that these inaccuracies were carried

over to the modeling analyses, estimates

of air quality based on that modeling,

and estimates of EPA’s Tier 2 tailpipe

emissions reduction program not

modeled in the demonstrations. Thus,

because of the inaccuracies in the

inventories used for the SIP Call, the

attainment demonstration modeling is

also flawed. Finally, one commenter

suggests that modeling data

demonstrates that the benefits of

imposing NOX SIP Call controls are

limited to areas near the sources

controlled.

Response: These comments were

submitted prior to several court

decisions largely upholding EPA’s NOX

SIP Call. Michigan v. EPA, 213 F.3d 663

(D.C. Cir. 2000), cert. denied, 121 S.Ct.

1225, 149 L.Ed. 135 (2001);

Appalachian Power v. EPA, 251 F.3d

1026 (D.C. Cir. 2001) . Although a few

issues were vacated or remanded to EPA

for further consideration, these issues

do not concern the accuracy of the

emission inventories relied on for

purposes of the SIP Call. Moreover,

contrary to the commenter’s suggestion,

the SIP Call modeling data bases were

not used to develop estimates of

reductions from the Tier 2 program for

the severe-area one-hour attainment

demonstrations. Accordingly, the

commenter’s concerns that inaccurate

inventories for the SIP Call modeling

lead to inaccurate results for the severearea one-hour attainment

demonstrations are inapposite.

The remanded issues do affect the

ability of EPA and the States to achieve

the full level of the SIP Call reductions

by May 2003. First, the court vacated

the rule as it applied to two states—

Missouri and Georgia—and also

remanded the definition of a cogenerator and the assumed emission

limit for internal combustion engines.

EPA has informed the states that until

EPA addresses the remanded issues,

EPA will accept SIPs that do not include

those small portions of the emission

budget. However, EPA is planning to

propose a rule shortly to address the

remanded issues and ensure that

emission reductions from these states

and the emission reductions represented

by the two source categories are

addressed in time to benefit the severe

nonattainment areas. Also, although the

court in the Michigan case subsequently

issued an order delaying the

implementation date to no later than

May 31, 2004, and the Appalachian

Power case remanded an issue

concerning computation of the EGU

growth factor, it is EPA’s view that

states should assume that the SIP Call

reductions will occur in time to ensure

attainment in the severe nonattainment

areas. In fact many states have adopted

rules that achieve the full SIP call level

reductions by May 1, 2003. Both EPA

and the states are moving forward to

implement the SIP Call.

Finally, contrary to the commenter’s

conclusions, EPA’s modeling to

determine the region-wide impacts of

the NOX SIP call clearly shows that

regional transport of ozone and its

precursors is impacting nonattainment

areas several states away. This analysis

was upheld by the court in Michigan.

C. RACM (Including Transportation

Control Measures)

Comment: Several commenters stated

that there is no evidence in several

states that they have adopted reasonably

available control measures (RACM) or

that the SIPs have provided for

attainment as expeditiously as

practicable. Specifically, the lack of

Transportation Control Measures

(TCMs) was cited in several comments,

but commenters also raised concerns

about potential stationary source

controls.

One commenter stated that mobile

source emission budgets in the plans are

by definition inadequate because the

SIPs do not demonstrate timely

attainment or contain the emissions

reductions required for all RACM. That

commenter claims that EPA may not

find adequate a motor vehicle emission

budget (MVEB) that is derived from a

SIP that is inadequate for the purpose

for which it is submitted. The

commenter alleges that none of the

MVEBs submitted by the states that EPA

is considering for adequacy is consistent

with the level of emissions achieved by

implementation of all RACM, nor are

they derived from SIPs that provide for

attainment. Some commenters stated

that for measures that are not adopted

into the SIP, the state must provide a

justification for why they were

determined to not be RACM.

Response: After receipt of this

comment on the December 16, 1999

proposal, EPA reviewed the initial SIP

submittals for the Connecticut portion

of the NY–NJ–CT severe area, as well as

the other areas for which EPA proposed

approval in December 1999, and

determined that they did not include

sufficient documentation concerning

available RACM measures. For all of the

severe areas for which EPA proposed

approval in December 1999, EPA

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63931

5These commitments are enforceable by the EPA

and citizens under, respectively, sections 113 and

304 of the CAA. In the past, EPA has approved

enforceable commitments and courts have enforced

these actions against states that failed to comply

with those commitments. See, e.g., American Lung

Ass’n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J.

1987), aff’d, 871 F.2d 319 (3rd Cir. 1989); NRDC,

Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp.

848 (S.D.N.Y. 1987); Citizens for a Better Env’t v.

Deukmejian, 731 F. Supp. 1448, recon. granted in

part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition

for Clean Air v. South Coast Air Quality Mgt. Dist.,

No. CV 97–6916–HLH, (C.D. Cal. Aug. 27, 1999).

Further, if a state fails to meet its commitments.

EPA could make a finding of failure to implement

the SIP under section 179(a) of the Act, which starts

an 18-month period for the State to begin

implementation before mandatory sanctions are

imposted.

consequently issued a guidance

memorandum providing that these

states should address the RACM

requirement through an additional SIP

submittal. (Memorandum of December

14, 2000, from John S. Seitz, Director,

Office of Air Quality Planning and

Standards, re: ‘‘Additional Submission

on RACM from States with Severe 1-

hour Ozone Nonattainment Area SIPs.’’)

The State of Connecticut provided

EPA with a draft RACM analysis on

August 2, 2001, and finalized that

document on October 15, 2001. EPA

proposed to approve this SIP as meeting

the RACM requirements via parallel

processing on August 10, 2001 (66 FR

42172). In the proposal, EPA set forth its

interpretation of the RACM

requirement. See 66 FR 42182. Based on

our review of the RACM submission,

EPA proposed that CT had adopted all

RACM. EPA received no comments on

that proposal. Today, EPA approves the

Connecticut RACM analysis as meeting

the requirement for adopting RACM for

the Connecticut portion of the NY–NJ–

CT severe area.

Section 172(c)(1) of the Act requires

SIPs to contain RACM and provides for

areas to attain as expeditiously as

practicable. EPA has previously

provided guidance interpreting the

requirements of 172(c)(1). See 57 FR

13498, 13560. In that guidance, EPA

indicated its interpretation that

potentially available measures that

would not advance the attainment date

for an area would not be considered

RACM. EPA also indicated in that

guidance that states should consider all

potentially available measures to

determine whether they were

reasonably available for implementation

in the area, and whether they would

advance the attainment date. Further,

states should indicate in their SIP

submittals whether measures

considered were reasonably available or

not, and if measures are reasonably

available they must be adopted as

RACM. Finally, EPA indicated that

states could reject measures as not being

RACM because they would not advance

the attainment date, would cause

substantial widespread and long-term

adverse impacts, would be economically

or technologically infeasible, or would

be unavailable based on local

considerations, including costs. The

EPA also issued a recent memorandum

re-confirming the principles in the

earlier guidance, entitled, ‘‘Guidance on

the Reasonably Available Control

Measures (RACM) Requirement and

Attainment Demonstration Submissions

for Ozone Nonattainment Areas.’’ John

S. Seitz, Director, Office of Air Quality

Planning and Standards. November 30,

1999. Web site: http://www.epa.gov/ttn/

oarpg/t1pgm.html. EPA has consistently

interpreted the Clean Air Act as

requiring only such RACM as will

provide for expeditious attainment,

since we first addressed the issue in

guidance issued in 1979. 44 FR 20372,

20375 (April 4, 1979).

Although EPA does not believe that

section 172(c)(1) requires

implementation of additional measures

for Connecticut portion of the NY–NJ–

CT severe area, this conclusion is not

necessarily valid for other areas. Thus,

a determination of RACM is necessary

on a case-by-case basis and will depend

on the circumstances for the individual

area. In addition, if in the future EPA

moves forward to implement another

ozone standard, this RACM analysis

would not control what is RACM for

these or any other areas for that other

ozone standard.

Also, EPA has long advocated that

states consider the kinds of control

measures that the commenters have

suggested, and EPA has indeed

provided guidance on those measures.

See, e.g., http://www.epa.gov/otaq/

transp.htm. In order to demonstrate that

they will attain the 1-hour ozone

NAAQS as expeditiously as practicable,

some areas may need to consider and

adopt a number of measures-including

the kind that the Connecticut portion of

the NY–NJ–CT severe area itself

evaluated in its RACM analysis—that

even collectively do not result in many

emission reductions. Furthermore, EPA

encourages areas to implement

technically available and economically

feasible measures to achieve emissions

reductions in the short term—even if

such measures do not advance the

attainment date—since such measures

will likely improve air quality. Also,

over time, emission control measures

that may not be RACM now for an area

may ultimately become feasible for the

same area due to advances in control

technology or more cost-effective

implementation techniques. Thus, areas

should continue to assess the state of

control technology as they make

progress toward attainment and

consider new control technologies that

may in fact result in more expeditious

improvement in air quality.

Because EPA is finding that the SIP

meets the Clean Air Act’s requirement

for RACM and that there are no

additional reasonably available control

measures that can advance the

attainment date, EPA concludes that the

attainment date being approved is as

expeditious as practicable.

EPA previously responded to

comments concerning the adequacy of

MVEBs when EPA took final action

determining the budgets adequate and

does not address those issues again

here. The responses are found at:

http://www.epa.gov/oms/transp/

conform/pastsips.htm.

D. Attainment and Rate of Progress

Demonstrations—Approval of

Demonstrations That Rely on State

Commitments or State Rules for

Emission Limitations to Lower

Emissions in the Future Not Yet

Adopted by a State and/or Approved by

EPA

Comment: Several commenters

disagreed with EPA’s proposal to

approve states’ attainment and rate of

progress demonstrations because: (a)

Not all of the emissions reductions

assumed in the demonstrations have

actually taken place, (b) those emission

reductions are reflected in rules yet to

be adopted and approved by a state and

approved by EPA as part of the SIP, (c)

those emission reductions are credited

illegally as part of a demonstration

because they are not approved by EPA

as part of the SIP, or (d) the commenter

maintains that EPA does not have

authority to accept enforceable state

commitments to adopt measures in the

future in lieu of current adopted

measures to fill a near-term shortfall of

reductions.

Response: EPA disagrees with the

comments, and believes—consistent

with past practice—that the CAA allows

approval of enforceable commitments

that are limited in scope where

circumstances exist that warrant the use

of such commitments in place of

adopted measures.5 Once EPA

determines that circumstances warrant

consideration of an enforceable

commitment, EPA believes that three

factors should be considered in

determining whether to approve the

enforceable commitment: (1) Whether

the commitment addresses a limited

portion of the statutorily-required

program; (2) whether the state is capable

of fulfilling its commitment; and (3)

63932 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

6Section 110(k)(4) provides for ‘‘conditional

approval’’ of commitments that need not be

enforceable. Under that section, a State may commit

to ‘‘adopt specific enforceable measures’’ within

one-year of the conditional approval. Rather than

enforcing such commitments against the State, the

Act provides that the conditional approval will

convert to a disapproval if ‘‘the State fails to comply

with such commitment.’’

whether the commitment is for a

reasonable and appropriate period of

time.

As an initial matter, EPA believes that

present circumstances for the New York

City, Philadelphia, Baltimore

nonattainment areas warrant the

consideration of enforceable

commitments. The Northeast states that

make up the New York, Baltimore, and

Philadelphia nonattainment areas

submitted SIPs that they reasonably

believed demonstrated attainment with

fully adopted measures. After EPA’s

initial review of the plans, EPA

recommended to these areas that

additional controls would be necessary

to ensure attainment. Because these

areas had already submitted plans with

many fully adopted rules and the

adoption of additional rules would take

some time, EPA believed it was

appropriate to allow these areas to

supplement their plans with enforceable

commitments to adopt and submit

control measures to achieve the

additional necessary reductions. For

these areas, EPA has determined that

the submission of enforceable

commitments in place of adopted

control measures for these limited sets

of reductions will not interfere with

each area’s ability to meet its rate-ofprogress and attainment obligations.

EPA’s approach here of considering

enforceable commitments that are

limited in scope is not new. EPA has

historically recognized that under

certain circumstances, issuing full

approval may be appropriate for a

submission that consists, in part, of an

enforceable commitment. See e.g., 62 FR

1150, 1187 (Jan. 8, 1997) (ozone

attainment demonstration for the South

Coast Air Basin); 65 FR 18903 (Apr. 10,

2000) (revisions to attainment

demonstration for the South Coast Air

Basin); 63 FR 41326 (Aug. 3, 1998)

(federal implementation plan for PM–10

for Phoenix); 48 FR 51472 (state

implementation plan for New Jersey).

Nothing in the Act speaks directly to the

approvability of enforceable

commitments.6 However, EPA believes

that its interpretation is consistent with

provisions of the CAA. For example,

section 110(a)(2)(A) provides that each

SIP ‘‘shall include enforceable emission

limitations and other control measures,

means or techniques * * * as well as

schedules and timetables for

compliance, as may be necessary or

appropriate to meet the applicable

requirement of the Act.’’ Section

172(c)(6) of the Act requires, as a rule

generally applicable to nonattainment

SIPs, that the SIP ‘‘include enforceable

emission limitations and such other

control measures, means or techniques

* * * as may be necessary or

appropriate to provide for attainment

* * * by the applicable attainment date

***’’ (Emphasis added.) The

emphasized terms mean that at the time

of approval of the plan, the adopted

enforceable emission limitations and

other control measures do not

necessarily need to generate reductions

in the full amount needed to attain.

Rather, the emissions limitations and

other control measures may be

supplemented with other SIP rules—for

example, the enforceable commitments

EPA is approving today—as long as the

entire package of measures and rules

provides for attainment by the

attainment date and do not interfere

with other requirements such as ROP.

As provided above, after concluding

that the circumstances warrant

consideration of an enforceable

commitment—as they do for a

nonattainment area such as the

Connecticut portion of the NY–NJ–CT

severe area—EPA would consider three

factors in determining whether to

approve the submitted commitments.

First, EPA believes that the

commitments must be limited in scope.

In 1994, in considering EPA’s authority

under section 110(k)(4) to conditionally

approve unenforceable commitments,

the Court of Appeals for the District of

Columbia Circuit struck down an EPA

policy that would allow States to submit

(under limited circumstances)

commitments for entire programs.

Natural Resources Defense Council v.

EPA, 22 F.3d 1125 (D.C. Cir. 1994).

While EPA does not believe that case is

directly applicable here, EPA agrees

with the Court that other provisions in

the Act contemplate that a SIP

submission will consist of more than a

mere commitment. See NRDC, 22. F.3d

at 1134.

For the Connecticut portion of the

NY–NJ–CT severe area, the remaining

commitment addresses only a small

portion of the emission reductions

necessary to attain the standard.

Connecticut has adopted all other CAA

mandated control programs. Details of

these programs are found in section D.3

above. These already adopted programs

are achieving the vast majority of the

precursor emission reductions necessary

for attainment.

As to the second factor, whether the

State is capable of fulfilling the

commitment, EPA considered the

current or potential availability of

measures capable of achieving the

additional level of reductions

represented by the commitment. For the

New York, Philadelphia and Baltimore

nonattainment areas, EPA believes that

there are sufficient untapped sources of

emission reductions that could achieve

the minimal levels of additional

reductions that the areas need. This

conclusion is supported by the recent

recommendation of the Ozone Transport

Commission (‘‘OTC’’) regarding specific

controls that could be adopted to

achieve the level of reductions needed

for each of these three nonattainment

areas. Thus, EPA believes that the states

will be able to find sources of

reductions to meet the shortfall. The

states that comprise the New York,

Philadelphia and Baltimore

nonattainment areas are making

significant progress toward adopting the

measures to fill the shortfall. The OTC

has met and on March 29, 2001

recommended a set of control measures.

Currently, the states are working

through their adoption processes with

respect to those, and in some cases

other, control measures. For example

Connecticut recently adopted and EPA

approved the MWC rule mentioned

above, and Connecticut has identified

specific measures that should

completely address any remaining

shortfall.

The third factor, EPA has considered

in determining to approve limited

commitments for the Connecticut

portion of the NY–NJ–CT severe area

attainment demonstration is whether

the commitment is for a reasonable and

appropriate period. EPA recognizes that

both the Act and EPA have historically

emphasized the need for submission of

adopted control measures in order to

ensure expeditious implementation and

achievement of required emissions

reductions. Thus, to the extent that

other factors—such as the need to

consider innovative control strategies—

support the consideration of an

enforceable commitment in place of

adopted control measures, the

commitment should provide for the

adoption of the necessary control

measures on an expeditious, yet

practicable, schedule.

As provided above, for New York,

Baltimore and Philadelphia, EPA

proposed that these areas have time to

work within the framework of the OTC

to develop, if appropriate, a regional

control strategy to achieve the necessary

reductions and then to adopt the

controls on a state-by-state basis. In the

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63933

proposed approval of the attainment

demonstrations, EPA proposed that

these areas would have approximately

22 months to complete the OTC and

state-adoption processes—a fairly

ambitious schedule—i.e., until October

31, 2001. As a starting point in

suggesting this time frame for

submission of the adopted controls, EPA

first considered the CAA ‘‘SIP Call’’

provision of the CAA—section

110(k)(5)—which provides states with

up to 18 months to submit a SIP after

EPA requests a SIP revision. While EPA

may have ended its inquiry there, and

provided for the states to submit the

measures within 18 months of its

proposed approval of the attainment

demonstrations, EPA further considered

that these areas were all located with

the Northeast Ozone Transport Region

and determined that it was appropriate

to provide these areas with additional

time to work through the OTR process

to determine if regional controls would

be appropriate for addressing the

shortfall. See e.g., 64 FR 70348. EPA

believed that allowing these states until

2001 to adopt these additional measures

would not undercut their attainment

dates of November 2005 or 2007 or the

ability of these areas to meet their ROP

requirement.

Connecticut did not make the October

31, 2001 submission deadline for all the

control measures to make up the

shortfall. Connecticut did submit the

MWC rule (see section II.B), and

Connecticut has started on the SIP

process for the remaining measures.

These measures will include mobile

equipment repair and refinishing

regulations and regulations on

consumer products. EPA believes that

Connecticut is making sufficient

progress to support approval of the

commitment, because Connecticut will

adopt and implement the remaining

measures within a time period fully

consistent with the NY–NJ–CT severe

area attaining the standard by November

15, 2007. Details on Connecticut’s

progress in addressing the shortfall in

emission reductions can be found in the

memorandum ‘‘Status of Connecticut’s

Adoption of Additional Measures to

Close the Shortfall Identified in the

One-Hour Ozone Attainment

Demonstration for the Connecticut

Portion of the New York-New JerseyConnecticut Severe Area’’ dated

November 29, 2001 located in the

docket for this action.

The enforceable commitments

submitted for the Connecticut portion of

the NY–NJ–CT severe nonattainment

area, in conjunction with the other SIP

measures and other sources of emissions

reductions, constitute the required

demonstration of attainment and the

commitments will not interfere with the

area’s ability to make reasonable

progress under section 182(c)(2)(B) and

(d). EPA believes that the delay in

submittal of the final rules is

permissible under section 110(k)(3)

because the state has obligated itself to

submit the rules, and that obligation is

enforceable by EPA and the public.

Moreover, as discussed in the December

16, 1999 proposal, and Section D.3 of

this document, the SIP submittal

approved today contains major

substantive components submitted as

adopted regulations and enforceable

orders.

EPA believes that the Connecticut SIP

meets the NRDC consent decree

definition of a ‘‘full attainment

demonstration.’’ The consent decree

defines a ‘‘full attainment

demonstration’’ as a demonstration

according to CAA section 182(c)(2). As

a whole, the attainment

demonstration—consisting of

photochemical grid modeling, adopted

control measures, an enforceable

commitment with respect to a limited

portion of the reductions necessary to

attain, and other analyses and

documentation—is approvable since it

‘‘provides for attainment of the ozone

[NAAQS] by the applicable attainment

date.’’ See section 182(c)(2)(A).

E. Adequacy of Motor Vehicle Emissions

Budgets

Comment: We received a number of

comments about the process and

substance of EPA’s review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes.

Response: EPA’s adequacy process for

these SIPs has been completed, and we

have found the motor vehicle emissions

budgets in all of these SIPs to be

adequate. We have already responded to

any comments related to adequacy

when we issued our adequacy findings,

and therefore we are not listing the

individual comments or responding to

them here. Our findings of adequacy

and responses to comments can be

accessed at www.epa.gov/otaq/traq

(once there, click on the ‘‘conformity’’

button). At the Web site, EPA regional

contacts are identified.

F. Attainment Demonstration and Rate

of Progress Motor Vehicle Emissions

Inventories

Comment: Several commenters stated

that the motor vehicle emissions

inventory is not current, particularly

with respect to the fleet mix.

Commenters stated that the fleet mix

does not accurately reflect the growing

proportion of sport utility vehicles and

gasoline trucks, which pollute more

than conventional cars. Also, a

commenter stated that EPA and states

have not followed a consistent practice

in updating SIP modeling to account for

changes in vehicle fleets. For these

reasons, commenters recommend

disapproving the SIPs.

Response: The Connecticut SIP we are

taking final action on is based on the

most recent vehicle registration data

from 1996, which is the most recent

data that was available at the time the

SIP was submitted in 2001. The SIP also

contains vehicle fleet characteristics

that are in the most recent periodic

inventory update, which was submitted

on March 13, 2000. EPA requires the

most recently available data to be used,

but we do not require it to be updated

on a specific schedule. Therefore,

different SIPs base their fleet mix on

different years of data. Our guidance

does not suggest that SIPs should be

disapproved on this basis. Nevertheless,

we do expect that revisions to these SIPs

that are submitted using MOBILE6 (as

required in those cases where the SIP is

relying on emissions reductions from

the Tier 2 standards) will use updated

vehicle registration data appropriate for

use with MOBILE6, whether it is

updated local data or the updated

national default data that will be part of

MOBILE6.

G. VOC Emission Reductions

Comment: For States that need

additional VOC reductions, one

commenter recommends a process to

achieve these VOC emission reductions,

which involves the use of HFC–152a

(1,1 difluoroethane) as the blowing

agent in manufacturing of polystyrene

foam products such as food trays and

egg cartons. The commenter states that

HFC–152a could be used instead of

hydrocarbons, a known pollutant, as a

blowing agent. Use of HFC–152a, which

is classified as VOC exempt, would

eliminate nationwide the entire 25,000

tons/year of VOC emissions from this

industry.

Response: EPA has met with the

commenter and has discussed the

technology described by the company to

reduce VOC emissions from polystyrene

foam blowing through the use of HFC–

152a (1,1 difluoroethane), which is a

VOC exempt compound, as a blowing

agent. Since the HFC–152a is VOC

exempt, its use would give a VOC

reduction compared to the use of VOCs

such a pentane or butane as a blowing

agent. However, EPA has not studied

this technology exhaustively. It is each

state’s prerogative to specify which

measures it will adopt in order to

63934 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

7 ‘‘Credit for the 15 Percent Rate-of-Progress Plans

for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rules,’’

March 22, 1995, from John S. Seitz, Director, Office

of air Quality Planning and Standards for Air

Division Directors, Regions I–X.

8 ‘‘Credit for the 15 Percent Rate-of-Progress Plans

for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing Rule,’’ November 27, 1994,

John S. Seitz, Director OAQPS, to Air Division

Directors, Regions I–X.

9 ‘‘Regulatory Schedule for Consumer and

Commercial Products under section 183(e) of the

Clean Air Act,’’ June 22, 1995, John S. Seitz,

Director of OAQPS, to Air Division Directors,

Regions I–X.

achieve the additional VOC reductions

it needs. In evaluating the use of HFC–

152a, states may want to consider

claims that products made with this

blowing agent are comparable in quality

to products made with other blowing

agents. Also the question of the over-all

long term environmental effect of

encouraging emissions of fluorine

compounds would be relevant to

consider. This is a technology which

states may want to consider, but

ultimately, the decision of whether to

require this particular technology to

achieve the necessary VOC emissions

reductions must be made by each

affected state. Finally, EPA notes that

under the significant new alternatives

policy (SNAP) program, created under

CAA section 612, EPA has identified

acceptable foam blowing agents many of

which are not VOCs (http://

www.epa.gov/ozone/title6/snap/).

H. Credit for Measures Not Fully

Implemented

Comment: States should not be given

credit for measures that are not fully

implemented. For example, the states

are being given full credit for federal

coating, refinishing and consumer

product rules that have been delayed or

weakened.

Response: Architectural and

Industrial Maintenance (AIM) Coatings:

On March 22, 1995 EPA issued a

memorandum 7 that provided that states

could claim a 20% reduction in VOC

emissions from the AIM coatings

category in ROP and attainment plans

based on the anticipated promulgation

of a national AIM coatings rule. In

developing the attainment and ROP SIPs

for their nonattainment areas, states

relied on this memorandum to estimate

emission reductions from the

anticipated national AIM rule. EPA

promulgated the final AIM rule in

September 1998, codified at 40 CFR part

59, subpart D. In the preamble to EPA’s

final AIM coatings regulation, EPA

estimated that the regulation will result

in 20% reduction of nationwide VOC

emissions from AIM coatings categories

(63 FR 48855). The estimated VOC

reductions from the final AIM rule

resulted in the same level as those

estimated in the March 1995 EPA policy

memorandum. In accordance with

EPA’s final regulation, states have

assumed a 20% reduction from AIM

coatings source categories in their

attainment and ROP plans. AIM

coatings manufacturers were required to

be in compliance with the final

regulation within one year of

promulgation, except for certain

pesticide formulations which were

given an additional year to comply.

Thus all manufacturers were required to

comply, at the latest, by September

2000. Industry confirmed in comments

on the proposed AIM rule that 12

months between the issuance of the

final rule and the compliance deadline

would be sufficient to ‘‘use up existing

label stock’’ and ‘‘adjust inventories’’ to

conform to the rule. 63 FR 48848

(September 11, 1998). In addition, EPA

determined that, after the compliance

date, the volume of nonconforming

products would be very low (less than

one percent) and would be withdrawn

from retail shelves anyway. Therefore,

EPA believes that compliant coatings

were in use by the Fall of 1999 with full

reductions to be achieved by September

2000 and that it was appropriate for the

states to take credit for a 20% emission

reductions in their SIPs.

Autobody Refinish Coatings Rule:

Consistent with a November 27, 1994

EPA policy,8 many states claimed a 37%

reduction from this source category

based on a proposed rule. However,

EPA’s final rule, ‘‘National Volatile

Organic Compound Emission Standards

for Automobile Refinish Coatings,’’

published on September 11, 1998 (63 FR

48806), did not regulate lacquer

topcoats and will result in a smaller

emission reduction of around 33%

overall nationwide. The 37% emission

reduction from EPA’s proposed rule was

an estimate of the total nationwide

emission reduction. Since this number

is an overall national average, the actual

reduction achieved in any particular

area could vary depending on the level

of control which already existed in the

area. For example, in California the

reduction from the national rule is zero

because California’s rules are more

stringent than the national rule. In the

proposed rule, the estimated percentage

reduction for areas that were

unregulated before the national rule was

about 40%. However as a result of the

lacquer topcoat exemption added

between proposal and final rule, the

reduction is now estimated to be 36%

for previously unregulated areas.

Although Connecticut’s post-1999 ROP

SIP claims a 37 percent reduction from

this rule, the large surplus NOX

reductions achieved by Connecticut’s

ROP plan easily cover the shortfall

caused by the minor overestimation of

credit from the federal automobile

refinishing rule. Additionally, this

minor overestimation is not likely to

adversely impact Connecticut’s

attainment demonstration SIP. By taking

a 37% reduction instead of a 36%

reduction, Connecticut’s SIP overstates

VOC emission reductions in its severe

area by 0.06 tpsd which is not

significant when compared to total VOC

emissions and VOC emission reductions

for the area. EPA’s best estimate of the

reduction potential of the final rule was

spelled out in a September 19, 1996

memorandum entitled ‘‘Emissions

Calculations for the Automobile

Refinish Coatings Final Rule’’ from

Mark Morris to Docket No. A–95–18.

Consumer Products Rule: Consistent

with a June 22, 1995 EPA guidance,9

states claimed a 20% reduction from

this source category based on EPA’s

proposed rule. The final rule, ‘‘National

Volatile Organic Compound Emission

Standards for Consumer Products,’’ (63

FR 48819), published on September 11,

1998, has resulted in a 20% reduction

after the December 10, 1998 compliance

date. Moreover, these reductions largely

occurred by the Fall of 1999. In the

consumer products rule, EPA

determined, and the consumer products

industry concurred, that a significant

proportion of subject products have

been reformulated in response to state

regulations and in anticipation of the

final rule. 63 FR 48819. Thus, while

Connecticut did not adopt such

regulations, it benefitted from the sale of

reformulated products due to the

actions of other states to regulate

consumer products. In essence, industry

reformulated the products covered by

the federal consumer products rule in

advance of the final rule. Therefore,

EPA believes that complying products

in accordance with the rule were in use

by the Fall of 1999. It was appropriate

for the states to take credit for a 20%

emission reduction for the consumer

products rule in their SIPs.

I. Enforcement of Control Programs

Comment: The attainment

demonstrations do not clearly set out

programs for enforcement of the various

control strategies relied on for emission

reduction credit.

Response: In general, state

enforcement, personnel and funding

program elements are contained in SIP

revisions previously approved by EPA

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63935

10EPA policy provides that contingency measures

should achieve a 3 percent reduction in emissions

in the year following an EPA determination of a

failure to attain or to meet a progress requirement.

under obligations set forth in section

110(a)(2)(C) of the Clean Air Act. Once

approved by the EPA, there is no need

for states to readopt and resubmit these

programs with each and every SIP

revision required by other sections of

the Act. In addition, emission control

regulations will also contain specific

enforcement mechanisms, such as

record keeping and reporting

requirements, and may also provide for

periodic state inspections and reviews

of the affected sources. EPA’s review of

these regulations includes review of the

enforceability of the regulations. Rules

that are not enforceable are generally

not approved by the EPA. To the extent

that the ozone attainment demonstration

and ROP plan depend on specific state

emission control regulations these

individual regulations have undergone

review by the EPA in past approval

actions or, to the extent they are being

approved through this action, have

undergone review in the current

rulemaking.

J. Contingency Measures

Comment: The SIP for the

Connecticut portion of the NY-NJ-CT

severe ozone nonattainment area does

not provide contingency measures to

make up for any emission reduction

shortfall, either in achievement of ROP

milestones or for failure to attain, as

required by sections 172(c)(9) and

182(c)(9) of the Clean Air Act.

Response: The Connecticut SIP does

provide contingency measures for ROP

as required by section 182(c)(9), but

does not provide contingency measures

for failure to attain as required by

section 172(c)(9). The state’s ROP

contingency plan is discussed in detail

in our August 10, 2001 document (66 FR

42172). We are approving Connecticut’s

demonstration that it meets the

contingency measure provision of

section 182(c)(9) of the Act, which

requires contingency measures for

serious and above milestone failures.

Connecticut still must meet the

contingency measure provision of

section 172(c)(9) of the Act, which

pertains to failure to attain the ozone

standard by the required date. But EPA

is not obligated to approve such

measures prior to approving the

attainment demonstration, because the

contingency measure requirement of

section 172(c)(9) is independent from

the attainment demonstration

requirements under sections 172(c)(1)

and 182(c)(2)(A). The section 172(c)(9)

contingency measure requirement

addresses the event that an area fails to

attain the ozone NAAQS by the

attainment date established in the SIP

and has no bearing on whether a state

has submitted a SIP that projects

attainment of the ozone NAAQS. The

attainment SIP provides a

demonstration that attainment ought to

be reached, but the contingency

measure SIP requirement of section

179(c)(9) concerns what is to happen

only if attainment is not actually

achieved. The EPA acknowledges that

contingency measures are an

independently required SIP revision,

but does not believe that submission of

contingency measures is necessary

before EPA may approve an attainment

SIP.

Additionally, in the event that

attainment is not achieved by 2007 there

are a number of EPA measures that will

achieve significant emission reductions

that the SIP does not rely on or take

credit for. These include continuing

reductions from EPA’s Tier 2 tailpipe

standards and EPA’s standards for a

variety of non-road sources. The EPA

has analyzed the Connecticut SIP and

has estimated that the contingency

obligation would be approximately 3.8

tons per summer day (tpsd) in ozone

precursor emission reductions.

Reductions from the federal non-road

and the Tier 2 tailpipe standards during

the time frame contingency measures

would need to be implemented for

failure to attain (i.e., by May 2009) 10 are

estimated to be at least 5.5 tpsd, which

would cover the contingency obligation

for this area. More details on EPA’s

contingency measure analysis are

included in the docket for the

rulemaking action. While there is not an

approved SIP contingency measure that

would apply if the state failed to attain,

EPA believes that existing federally

enforceable measures would provide the

necessary substantive relief.

K. MOBILE6 and Motor Vehicle

Emissions Budgets

Comment 1: One commenter generally

supports a policy of requiring motor

vehicle emissions budgets to be

recalculated when revised MOBILE

models are released.

Response 1: The Connecticut

attainment demonstration, which relies

on Tier 2 emission reduction credit,

contains a commitment to revise the

2007 motor vehicle emissions budgets

within 1 year after MOBILE6 is released.

Comment 2: The revised budgets

calculated using MOBILE6 will likely be

submitted after the MOBILE5 budgets

have already been approved. EPA’s

policy is that submitted SIPs may not

replace approved SIPs.

Response 2: EPA proposed to change

its policy in the July 28, 2000 SNPRM

(65 FR 46383) to provide that the

approval of the MOBILE5 budgets for

conformity purposes would last only

until MOBILE6 budgets had been

submitted and found adequate. EPA is

taking final action adopting this revised

interpretation in this notice. In this way,

the MOBILE6 budgets can apply for

conformity purposes as soon as they are

found adequate.

Comment 3: If a State submits

additional control measures that affect

the motor vehicle emissions budget but

does not submit a revised motor vehicle

emissions budget, EPA should not

approve the attainment demonstration.

Response 3: EPA agrees. The motor

vehicle emissions budgets in the

Connecticut attainment demonstration

reflect the motor vehicle control

measures in the attainment

demonstration. In addition, Connecticut

has committed to submit new budgets as

a revision to the attainment SIP

consistent with any new measures

submitted to fill any shortfall, if the

additional control measures affect onroad motor vehicle emissions.

Comment 4: EPA should make it clear

that the motor vehicle emissions

budgets to be used for conformity

purposes will be determined from the

total motor vehicle emissions reductions

required in the SIP, even if the SIP does

not explicitly quantify a revised motor

vehicle emissions budget.

Response 4: EPA will not approve

SIPs without motor vehicle emissions

budgets that are explicitly quantified for

conformity purposes. The Connecticut

attainment demonstration contains

explicitly quantified motor vehicle

emissions budgets which EPA has found

adequate (65 FR 37778).

Comment 5: If a state fails to follow

through on its commitment to submit

the revised motor vehicle emissions

budgets using MOBILE6, EPA could

make a finding of failure to submit a

portion of a SIP, which would trigger a

sanctions clock under section 179.

Response 5: EPA agrees that if a state

fails to meet its commitment, EPA could

make a finding of failure to implement

the SIP, which would start a sanctions

clock under section 179 of the Clean Air

Act.

Comment 6: If the budgets

recalculated using MOBILE6 are larger

than the MOBILE5 budgets, then

attainment should be demonstrated

again.

Response 6: As EPA proposed in its

December 16, 1999 notices, we will

work with states on a case-by-case basis

if the new emissions estimates raise

63936 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

issues about the sufficiency of the

attainment demonstration.

Comment 7: If the MOBILE6 budgets

are smaller than the MOBILE5 budgets,

the difference between the budgets

should not be available for reallocation

to other sources unless air quality data

show that the area is attaining, and a

revised attainment demonstration is

submitted that demonstrates that the

increased emissions are consistent with

attainment and maintenance. Similarly,

the MOBILE5 budgets should not be

retained (while MOBILE6 is being used

for conformity demonstrations) unless

the above conditions are met.

Response 7: EPA agrees that if

recalculation using MOBILE6 shows

lower motor vehicle emissions than

MOBILE5, then these motor vehicle

emission reductions cannot be

reallocated to other sources or assigned

to the motor vehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment

demonstration and shows that it will

still attain. In other words, the area must

assess how its original attainment

demonstration is impacted by using

MOBILE6 vs. MOBILE5 before it

reallocates any apparent motor vehicle

emission reductions resulting from the

use of MOBILE6. In addition,

Connecticut has committed to submit

new budgets based on MOBILE6, so the

MOBILE5 budgets will not be retained

in the SIP indefinitely.

Comment 8: We received a comment

on whether the grace period before

MOBILE6 is required in conformity

determinations will be consistent with

the schedules for revising SIP motor

vehicle emissions budgets within 1 or 2

years of MOBILE6’s release.

Response 8: This comment is not

germane to this rulemaking, since the

MOBILE6 grace period for conformity

determinations is not explicitly tied to

EPA’s SIP policy and approvals.

However, EPA understands that a longer

grace period would allow some areas to

better transition to new MOBILE6

budgets. EPA is considering the

maximum 2-year grace period allowed

by the conformity rule, and EPA will

address this in the future when the final

MOBILE6 emissions model and policy

guidance is released.

Comment 9: One commenter asked

EPA to clarify in the final rule whether

MOBILE6 will be required for

conformity determinations once new

MOBILE6 budgets are submitted and

found adequate.

Response 9: This comment is not

germane to this rulemaking. However, it

is important to note that EPA intends to

clarify its policy for implementing

MOBILE6 in conformity determinations

when the final MOBILE6 model is

released. EPA believes that MOBILE6

should be used in conformity

determinations once new MOBILE6

budgets are found adequate.

Comment 10: One commenter did not

prefer the additional option for a second

year before the state has to revise the

conformity budgets with MOBILE6,

since new conformity determinations

and new transportation projects could

be delayed in the second year.

Response 10: EPA proposed the

additional option to provide further

flexibility in managing MOBILE6 budget

revisions. The supplemental proposal

did not change the original option to

revise budgets within one year of

MOBILE6’s release. State and local

governments can continue to use the 1-

year option, if desired, or submit a new

commitment consistent with the

alternative 2-year option. EPA expects

that state and local agencies have

consulted on which option is

appropriate and have considered the

impact on future conformity

determinations. Connecticut has

committed to revise its budgets within

1 year of MOBILE6’s release.

L. Measures for the 1-Hour NAAQS and

for Progress Toward 8-Hour NAAQS

Comment: One commenter notes that

EPA has been working toward

promulgation of a revised 8-hour ozone

National Ambient Air Quality Standard

(NAAQS) because the Administrator

deemed attaining the 1-hour ozone

NAAQS is not adequate to protect

public health. Therefore, EPA must

ensure that measures be implemented

now that will be sufficient to meet the

1-hour standard and that make as much

progress toward implementing the 8-

hour ozone standard as the

requirements of the CAA and

implementing regulations allow.

Response: The 1-hour standard

remains in effect for all of these areas,

and the SIPs that have been submitted

are for the purpose of achieving that

NAAQS. Congress has provided the

states with the authority to choose the

measures necessary to attain the

NAAQS and EPA cannot second guess

the states’ choice if it determines that

the SIP meets the requirements of the

CAA. EPA believes that the SIPs for the

severe areas meet the requirements for

attainment demonstrations for the 1-

hour standard and thus, could not

disapprove them even if EPA believed

other control requirements might be

more effective for attaining the 8-hour

standard. However, EPA generally

believes that emission controls

implemented to attain the 1-hour ozone

standard will be beneficial towards

attainment of the 8-hour ozone standard

as well. This is particularly true

regarding the implementation of NOX

emission controls resulting from EPA’s

NOX SIP Call.

Finally, EPA notes that although the

8-hour ozone standard has been adopted

by the EPA, implementation of this

standard has been delayed while certain

aspects of the standard remain before

the United States Circuit Court of

Appeals. The states and the EPA have

yet to define the 8-hour ozone

nonattainment areas and the EPA has

yet to issue guidance and requirements

for the implementation of the 8-hour

ozone standard.

M. Attainment and Post ‘99 Rate of

Progress Demonstrations

Comment: One commenter claims that

the plans fail to demonstrate emission

reductions of 3% per year over each 3-

year period between November 1999

and November 2002; and November

2002 and November 2005; and the 2-

year period between November 2005

and November 2007, as required by 42

U.S.C. 7511a(c)(2)(B). The states have

not even attempted to demonstrate

compliance with these requirements,

and EPA has not proposed to find that

they have not been met.

The EPA has absolutely no authority

to waive the statutory mandate for 3%

annual reductions. The statute does not

allow EPA to use the NOX SIP call or

126 orders as an excuse for waiving rateof-progress (ROP) deadlines. The

statutory ROP requirement is for

emission reductions—not ambient

reductions. Emission reductions in

upwind states do not waive the

statutory requirement for 3% annual

emission reductions within the

downwind nonattainment area.

Response: These comments center on

the concern that for many areas, EPA

did not propose approval of the post-99

ROP demonstrations at the same time as

EPA proposed action on the area’s

attainment demonstration. For those

areas EPA has since proposed approval

of the post-99 ROP SIPs. Under no

condition is EPA waiving the statutory

requirement for an average of 3%

annual emission reductions over each 3-

year ROP period. In this action EPA is

approving the Post-99 plan for the

Connecticut portion of the NY–NJ–CT

severe area, as achieving 3% average

annual reductions over each 3-year

period (or 2-year period for 2005–2007)

until the area’s attainment date.

Moreover, EPA has not provided that

areas may rely on upwind reductions for

purposes of meeting the ROP

requirements. Rather, states are relying

Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations 63937

on in-state NOX and VOC measures for

meeting the ROP requirement.

IV. Final Action

As described above, EPA does not

believe any of the comments we

received on the proposals published for

the attainment demonstration for the

Connecticut portion of the NY–NJ–CT

severe area should affect EPA’s

determination that the SIP is fully

approvable. Thus, EPA is approving

several SIP revisions that relate to

attainment of the one-hour ozone

standard in the Connecticut portion of

the NY–NJ–CT severe area. The SIP

revisions include Connecticut’s onehour ozone attainment demonstration

for the state’s portion of the NY–NJ–CT

severe area, various enforceable

commitments, a RACM analysis, and the

post-1999 ROP plan. Connecticut’s onehour ozone attainment demonstration

includes 2007 motor vehicle emissions

budgets, which EPA is approving until

new budgets using MOBILE 6 or in

conjunction with new mobile source

measures to fill the shortfall are

submitted and found adequate. Also,

EPA is approving the motor vehicle

emissions budgets for 2002 and 2005

contained in Connecticut’s post-1999

ROP plan for transportation conformity

purposes.

The enforceable commitments we are

approving include: (1) A commitment to

adopt and submit by October 31, 2001

additional necessary regional control

measures to offset the shortfall in

emission reductions necessary to attain

the one-hour ozone standard by

November 2007; (2) a commitment to

adopt and submit by October 31, 2001

additional necessary intrastate control

measures to offset the shortfall in

emission reductions necessary to attain

the one-hour ozone standard by

November 2007; (3) a commitment to

adopt and submit additional restrictions

on VOC emissions from mobile

equipment and repair operations; (4) a

commitment to adopt and submit

additional requirements to reduce VOC

emissions from certain consumer

products; (5) a commitment to revise the

attainment-level 2007 motor vehicle

emissions budgets within one year of

the date that EPA releases the final

version of their motor vehicle emissions

model, MOBILE6; (6) a commitment to

recalculate and submit revised motor

vehicle emissions budgets if any

additional motor vehicle control

measures are adopted to address the

shortfall; and () a commitment to

perform a mid-course review of the

attainment status of the one-hour ozone

nonattainment area by December 31,

2004. The mid-course review

commitment relates to the Greater

Connecticut one-hour ozone

nonattainment area as well.

V. Administrative Requirements

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

(Pub. L. 104–4). This rule also does 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), nor

will it 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 (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. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this rule, EPA has taken the necessary

steps to eliminate drafting errors and

ambiguity, minimize potential litigation,

and provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. 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 February 11,

2002. 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

63938 Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / Rules and Regulations

dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: November 30, 2001.

Ira W. Leighton,

Acting Regional Administrator, EPA—New

England.

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 52.377 is amended by

revising paragraph (b) and adding

paragraphs (c) and (d) to read as follows:

§ 52.377 Control strategy: Ozone

* * * * * *

(b) Approval—Revisions to the State

Implementation Plan submitted by the

Connecticut Department of

Environmental Protection on September

16, 1998 and February 8, 2000. The

revisions are for the purpose of

satisfying the attainment demonstration

requirements of section 182(c)(2)(A) of

the Clean Air Act for the Greater

Connecticut serious ozone

nonattainment area. The revision

establishes an attainment date of

November 15, 2007 for the Greater

Connecticut serious ozone

nonattainment area. This revision

establishes motor vehicle emissions

budgets for 2007 of 30.0 tons per day of

volatile organic compounds (VOC) and

79.6 tons per day of nitrogen oxides

(NOX) to be used in transportation

conformity in the Greater Connecticut

serious ozone nonattainment area, until

revised budgets pursuant to MOBILE6

are submitted and found adequate. In

the revision, Connecticut commits to

revise their VOC and NOX motor vehicle

emissions budgets within one year of

the release of MOBILE6. Connecticut

also commits to conduct a mid-course

review to assess modeling and

monitoring progress achieved towards

the goal of attainment by 2007, and

submit the results to EPA by December

31, 2004.

(c) Approval—Revisions to the State

Implementation Plan submitted by the

Connecticut Department of

Environmental Protection on October

15, 2001. These revisions are for the

purpose of satisfying the rate of progress

requirement of section 182 (c)(2)(B)

through 2007, and the contingency

measure requirements of section 182

(c)(9) of the Clean Air Act, for the

Connecticut portion of the NY–NJ–CT

severe ozone nonattainment area. These

revisions also establish motor vehicle

emissions budgets for 2002 of 15.20 tons

per day of VOC and 38.39 tons per day

of NOX, and for 2005 of 11.42 tons per

day of VOC and 29.01 tons per day of

NOX to be used in transportation

conformity in the Connecticut portion of

the NY–NJ–CT severe ozone

nonattainment area.

(d) Approval—Revisions to the State

Implementation Plan submitted by the

Connecticut Department of

Environmental Protection on September

16, 1998, February 8, 2000 and October

15, 2001. The revisions are for the

purpose of satisfying the attainment

demonstration requirements of section

182(c)(2)(A) of the Clean Air Act for the

Connecticut portion of the NY–NJ–CT

severe ozone nonattainment area. These

revisions also establish motor vehicle

emissions budgets for 2007 of 9.69 tons

per day of VOC and 23.68 tons per day

of NOX to be used in transportation

conformity in the Connecticut portion of

the NY–NJ–CT severe ozone

nonattainment area, until revised

budgets are submitted and found

adequate pursuant to MOBILE6, or in

conjunction with the additional mobile

source measures, if any, to fulfill the

shortfall. Connecticut commits to revise

their 2007 VOC and NOX transportation

conformity budgets within one year of

the release of MOBILE6, for both 1-hour

ozone nonattainment areas. Connecticut

commits to recalculate and submit

revised motor vehicle emissions

budgets, if any additional motor vehicle

control measures are adopted to address

the shortfall. Connecticut commits to

adopt and submit by October 31, 2001,

additional necessary regional control

measures to offset the emission

reduction shortfall in order to attain the

one-hour ozone standard by November

2007. Connecticut commits to adopt and

submit by October 31, 2001, additional

necessary intrastate control measures to

offset the emission reduction shortfall in

order to attain the one-hour ozone

standard by November 2007.

Connecticut commits to adopt and

submit: (1) additional restrictions on

VOC emissions from mobile equipment

and repair operations; and (2)

requirements to reduce VOC emissions

from certain consumer products.

Connecticut also commits to conduct a

mid-course review to assess modeling

and monitoring progress achieved

towards the goal of attainment by 2007,

and submit the results to EPA by

December 31, 2004.

[FR Doc. 01–30458 Filed 12–10–01; 8:45 am]

BILLING CODE 6450–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 62

[VT 022–1225a; FRL–7116–6]

Approval and Promulgation of State

Plans For Designated Facilities and

Pollutants: Vermont; Negative

Declaration

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving the Sections

111(d)/129 negative declaration

submitted by the Vermont Agency of

Natural Resources (ANR) on June 5,

2001. This negative declaration

adequately certifies that there are no

existing commercial and industrial solid

waste incineration units (CISWIs)

located within the boundaries of the

state of Vermont. EPA publishes

regulations under Sections 111(d) and

129 of the Clean Air Act requiring states

to submit control plans to EPA. These

state control plans show how states

intend to control the emissions of

designated pollutants from designated

facilities (i.e., CISWIs). The state of

Vermont submitted this negative

declaration in lieu of a state control

plan.

DATES: This direct final rule is effective

on February 11, 2002 without further

notice unless EPA receives significant

adverse comment by January 10, 2002.

If EPA receives adverse comment we

will publish a timely withdrawal of the

direct final rule in the Federal Register

and inform the public that the rule will

not take effect.

ADDRESSES: You should address your

written comments to: Mr. Steven Rapp,

Chief, Air Permit Programs Unit, Office

of Ecosystem Protection, U.S. EPA, One

Congress Street, Suite 1100 (CAP),

Boston, MA 02114–2023.

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.

FOR FURTHER INFORMATION CONTACT: John

J. Courcier, (617) 918–1659.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?

II. What is the origin of the requirements?

III. When did the CISWI requirements first

become known?

IV. When did Vermont submit its negative

declaration?