38104 Federal Register / Vol. 83, No. 150 / Friday, August 3, 2018 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2016–0168, FRL–9981– 

37—Region 1] 

Air Plan Approval; Connecticut; Plan 

Submittals for the 2008 Ozone National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing approval of 

State Implementation Plan (SIP) 

revisions submitted by Connecticut 

which relate to the 2008 8-hour ozone 

National Ambient Air Quality Standards 

(NAAQS). The SIP revisions are for the 

Greater Connecticut and the 

Connecticut portion of the New YorkNorthern New Jersey-Long Island, NYNJ-CT moderate ozone nonattainment 

areas. EPA is proposing to approve 

submittals which include 2011 base 

year emissions inventories, an 

emissions statement certification, 

reasonable further progress (RFP) 

demonstrations, reasonably available 

control measures (RACM) analyses, 

motor vehicle emissions budgets, and 

contingency measures. This action is 

being taken in accordance with the 

Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before September 4, 

2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OAR– 

2016–0168. All documents in the docket 

are listed on the https://

www.regulations.gov website. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available at https://

www.regulations.gov and at the U.S. 

Environmental Protection Agency, EPA 

Region 1 Office, Office of Ecosystem 

Protection, Air Quality Planning Unit, 5 

Post Office Square, Suite 100, Boston, 

MA. EPA requests that if at all possible, 

you contact the contact listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: Bob 

McConnell, Environmental Engineer, 

Air Quality Planning Unit, Air Programs 

Branch (Mail Code OEP05–02), U.S. 

Environmental Protection Agency, 

Region 1, 5 Post Office Square, Suite 

100, Boston, Massachusetts 02109–3912; 

(617) 918–1046; mcconnell.robert@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. 

Table of Contents 

I. Background 

II. Description of State’s Submittals 

III. Evaluation of State’s Submittals 

A. Emissions Statement Certification 

B. 2011 Base Year Emissions Inventory 

C. Reasonable Further Progress Plans 

D. Motor Vehicle Emissions Budgets/ 

Transportation Conformity 

E. Contingency Measures 

F. Reasonably Available Control Measures 

(RACM) Analysis 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. Background 

On March 12, 2008, the EPA revised 

both the primary and secondary NAAQS 

for ozone to a level of 0.075 parts per 

million (ppm) (annual fourth-highest 

daily maximum 8-hour average 

concentration, averaged over three 

years) to provide increased protection of 

public health and the environment (73 

FR 16436, March 27, 2008). The 2008 

ozone NAAQS retains the same general 

form and averaging time as the 0.08 

ppm NAAQS set in 1997, but is set at 

a more protective level. Under the EPA’s 

regulations at 40 CFR part 50, the 2008 

8-hour ozone NAAQS is attained when 

the 3-year average of the annual fourth 

highest daily maximum 8-hour average 

ambient air quality ozone 

concentrations is less than or equal to 

0.075 ppm. See 40 CFR 50.15. 

Effective July 20, 2012, the EPA 

designated as nonattainment any area 

that was violating the 2008 8-hour 

ozone NAAQS based on the three most 

recent years (2008–2010) of air 

monitoring data (77 FR 30088, May 21, 

2012). With that rulemaking, the Greater 

Connecticut area and the New York-N. 

New Jersey-Long Island NY-NJ-CT area 

were designated as marginal ozone 

nonattainment areas. The latter area is 

herein referred to as the NY-NJ-CT area. 

Areas that were designated as marginal 

nonattainment were required to attain 

the 2008 8-hour ozone NAAQS no later 

than July 20, 2015, based on 2012–2014 

monitoring data. On May 14, 2016 (81 

FR 26697), the EPA published its 

determination that the Greater 

Connecticut area and the NY-NJ-CT area 

had failed to attain the 2008 8-hour 

ozone NAAQS by the attainment 

deadline and the areas were reclassified 

to moderate ozone nonattainment areas. 

See 40 CFR 81.306. Moderate areas are 

required to attain the 2008 8-hour ozone 

NAAQS by no later than six years after 

the effective date of designations, or July 

20, 2018. See 40 CFR 51.903. 

II. Description of State’s Submittals 

Clean Air Act (CAA) section 182 of 

subpart 2 outlines SIP requirements 

applicable to ozone nonattainment areas 

in each classification category. Moderate 

area designations trigger additional state 

requirements established under the 

provisions of the EPA’s ozone 

implementation rule for the 2008 8-hour 

ozone NAAQS (40 CFR part 51, subpart 

AA). Examples of these requirements 

include submission of a modeling and 

attainment demonstration, a reasonable 

further progress (RFP) plan, controls on 

stationary sources that represent 

reasonably available control technology 

(RACT), and a demonstration that all 

reasonably available control measures 

(RACM) have been adopted. The EPA’s 

May 4, 2016 (81 FR 26699) rulemaking 

established a January 2, 2017 moderate 

area SIP revision submission deadline. 

On March 9, 2016, Connecticut 

submitted a 2011 emissions inventory of 

ozone precursors for all areas of the 

State. On September 5, 2017, 

Connecticut submitted an emissions 

statement certification which also 

covered all areas of the State. On 

January 17, 2017, Connecticut submitted 

SIP revisions for the 2008 ozone 

NAAQS for the Greater Connecticut 

moderate nonattainment area that 

included an RFP plan, contingency 

measures for the RFP plan, motor 

vehicle emissions budgets as defined by 

the RFP plan, and a RACM 

demonstration. Connecticut made a 

similar submittal on August 8, 2017, for 

the state’s portion of the NY-NJ-CT 

moderate nonattainment area. Although 

Connecticut’s January 17, 2017 and 

August 8, 2017 submittals also included 

attainment demonstrations for the 2008 

ozone standard, we are not addressing 

those submittals in this proposed 

rulemaking. 

III. Evaluation of State’s Submittals 

A. Emissions Statement Certification 

EPA’s implementation rule for the 

2008 ozone NAAQS, herein referred to 

as the 2008 ozone rule, was published 

in the Federal Register on March 6, 

2015. See 80 FR 12264. The 2008 ozone 

rule notes than many areas that were 

nonattainment for the 2008 ozone 

NAAQS had previously adopted an 


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emissions statement reporting program 

due to being nonattainment for a prior 

ozone NAAQS. For these areas, the 2008 

ozone rule indicates that the state 

should review its existing rule to see 

whether it still meets the requirements 

of section 182(a)(3)(B) of the CAA, and 

if the state determines that it does, the 

state may submit a SIP revision 

certification to that effect to meet this 

obligation for purposes of the 2008 

ozone NAAQS. 

On September 5, 2017, Connecticut 

submitted an emissions statement 

certification which covered all areas of 

the State. The submittal notes that 

Connecticut had previously adopted an 

emissions statement program pursuant 

to obligations it had under the one-hour 

ozone standard, and that EPA approved 

that program into the Connecticut SIP 

on January 10, 1995. See 60 FR 2524. 

Connecticut reviewed its current set of 

air pollution reporting requirements and 

confirmed that pursuant to its authority 

under the Regulations of Connecticut 

State Agencies (RCSA) 22a–174–33, 

22a–174–4(d), and 22a–174–3a, all 

stationary sources of volatile organic 

compounds (VOCs) and/or nitrogen 

oxides (NOX) that emit 25 tons or more 

a year of those pollutants are required 

to report their emissions, along with a 

certification as to the accuracy of the 

reported emissions, to the State. 

Emissions from smaller stationary 

sources that emit less than 25 tons per 

year of VOC and/or NOX are inventoried 

as area sources within Connecticut’s 

emissions inventory, which is described 

in section III.B of this proposal. Given 

the above, we propose to approve 

Connecticut’s emissions statement 

certification for purposes of the 2008 

ozone NAAQS. 

B. 2011 Base Year Emissions Inventory 

CAA section 172(c)(3) requires that 

each SIP include a ‘‘comprehensive, 

accurate, current inventory of actual 

emissions from all sources of the 

relevant pollutant or pollutants in [the] 

area. . . .’’ By requiring an accounting 

of actual emissions from all sources of 

the relevant pollutants in the area, this 

section provides for the base year 

inventory to include all emissions that 

contribute to the formation of a 

particular NAAQS pollutant. 

Additionally, for the 2008 ozone 

NAAQS, EPA’s March 6, 2015 ozone 

rule recommended 2011 as a baseline 

year from which emission reductions 

used to meet RFP requirements are 

creditable. 

On March 9, 2016, Connecticut 

submitted to EPA as a SIP revision 

request an emissions inventory of ozone 

precursors for 2011. The inventory was 

submitted to meet the CAA section 

182(a)(3)(A) obligation to develop a base 

year inventory, and was also used as the 

baseline year in the State’s RFP plans 

which are described elsewhere in this 

proposal. The State conducted a public 

comment process on the inventory 

which concluded on August 31, 2015. 

The inventories include emission 

estimates in tons per summer day, and 

represent emissions estimates from 

stationary and mobile source categories 

during a typical summer day when 

ozone formation is highest. The ozone 

emissions inventory catalogs NOX and 

VOC emissions because these pollutants 

are precursors to ozone formation. 

Connecticut’s 2011 emissions inventory 

contains emission estimates at the 

county level, and also contains emission 

estimates summed to the geographic 

areas that correspond to the State’s two 

moderate ozone nonattainment areas. 

Connecticut’s 2011 emission 

inventory documents the procedures 

used to estimate emissions from 

individual stationary sources, referred 

to as point sources. The inventory 

describes the means by which the State 

identifies facilities that must report their 

air emissions to the State, and the 

techniques used to verify this 

information. These approaches include 

verification of information submitted by 

facilities by Connecticut Department of 

Energy and Environmental Protection 

(CT DEEP) enforcement staff during 

compliance inspections. Connecticut 

transmits its point source air emissions 

data to EPA’s National Emissions 

Inventory (NEI) database each year in 

accordance with the requirements found 

within 40 CFR part 51, subpart A. 

Area source emission estimates are 

made for small, stationary sources of air 

pollution that do not emit much 

individually, but do have significant 

emissions collectively. Examples 

include gasoline stations, automobile 

refinishing shops, and architectural and 

industrial maintenance coatings. 

Connecticut’s area source emissions 

inventory identifies the source 

categories for which the State relied 

upon EPA’s estimates, provides 

information on any adjustments made to 

EPA estimates, and notes which 

categories’ emission estimates were 

prepared by the State. The inventory 

also explains how double counting 

between emissions from facilities 

inventoried as individual point sources 

were excluded from the area source 

emission estimates. 

Connecticut used EPA’s Motor 

Vehicle Emissions Simulator (MOVES) 

model to calculate emissions for on-road 

and most non-road mobile source 

sectors. The State provided the model 

with local activity inputs including 

vehicle miles traveled (VMT) and 

average speed data by county provided 

by the Connecticut Department of 

Transportation. Connecticut also 

provided inputs to the model which 

reflect that the State has more light-duty 

vehicles and heavy-duty vehicles than 

national averages would suggest, and 

provided inputs for meteorology and 

fuels information. 

We propose to find that the air 

emission estimates for these sources 

were adequately accounted for in 

Connecticut’s 2011 emissions inventory. 

The methodology used to calculate 

emissions for each source category 

followed relevant EPA guidance, most 

notably the July 2017 guidance entitled 

‘‘Emissions Inventory Guidanec for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards and Regional Haze 

Regulations,’’ used appropriate, 

documented emission factors, or relied 

on emission estimates prepared for 

EPA’s National Emissions Inventory. 

Furthermore, the inventory submittal is 

sufficiently documented as to the 

techniques used to prepare the emission 

estimates. 

Table 1 shows the emissions by 

source category, in tons per summer day 

(tpsd), from the 2011 base year emission 

inventory for each of the State’s two 

nonattainment areas. 

TABLE 1—EMISSIONS INVENTORY SUMMARY FOR CONNECTICUT’S NONATTAINMENT AREAS

[Tons/summer day] 

Source 

CT portion of NY-NJ-CT area Greater CT area 

VOC NOX VOC NOX

Point ................................................................................................................. 2.0 18.5 1.3 10.0 

Area ................................................................................................................. 52.7 6.9 48.5 6.2 

Nonroad ........................................................................................................... 41.8 32.5 37.0 36.1 


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TABLE 1—EMISSIONS INVENTORY SUMMARY FOR CONNECTICUT’S NONATTAINMENT AREAS—Continued 

[Tons/summer day] 

Source 

CT portion of NY-NJ-CT area Greater CT area 

VOC NOX VOC NOX

Onroad ............................................................................................................. 33.4 64.6 30.3 55.8 

Biogenic ........................................................................................................... 141.4 0.7 283.7 1.7 

Totals ........................................................................................................ 271.3 123.3 400.7 109.8 

Additional details regarding 

Connecticut’s emissions inventory are 

included in Connecticut’s 2011 Periodic 

Emissions Inventory document, which 

is available in the docket for this 

proposed rulemaking. The inventories 

are based on the most current and 

accurate information available to the 

State at the time it was being developed. 

Additionally, the inventories 

comprehensively address all source 

categories in Connecticut’s 

nonattainment areas and were 

developed consistent with the relevant 

EPA inventory guidance. For these 

reasons, we are proposing to approve 

the 2011 baseline emissions inventories 

into the Connecticut SIP as meeting the 

requirements of CAA section 172(c)(3). 

C. Reasonable Further Progress Plans 

Section 182(b)(1) of the CAA and the 

EPA’s 2008 Ozone Implementation Rule 

requires that State’s submit a reasonable 

further progress (RFP) demonstration for 

each 8-hour ozone nonattainment area 

designated moderate and above, for 

review and approval into its SIP, that 

describes how the area will achieve 

actual emissions reductions of VOC and 

NOX from a baseline emissions 

inventory. Section 182(b)(1) of the CAA 

requires RFP to demonstrate a 15% 

reduction in VOC emissions before the 

more general RFP requirements of 

section 172(c)(2) of the CAA apply, 

which permits a combination of VOC 

and NOX emission reductions to show 

RFP. Connecticut has previously 

submitted 15% VOC-only RFP SIPs 

under section 182(b)(1), due to 

nonattainment obligations it had under 

the one-hour ozone standard. Therefore, 

for purposes of the 2008 ozone standard, 

Connecticut submitted RFP 

demonstrations for its two moderate 

nonattainment areas showing VOC and 

NOX emission reductions greater than 

15% within six years after the 2011 base 

year inventory (between 2012–2017). 

Note that we are only proposing action 

on the RFP plan for Connecticut portion 

of the NY-NJ-CT area. 

Connecticut chose to demonstrate that 

RFP was achieved between the 2011 

baseline year and the 2017 target year by 

showing that NOX emissions would 

decline by at least 10%, and VOC 

emissions by at least 5%, within each of 

its nonattainment areas. Connecticut 

updated its 2011 emission estimates for 

use within the RFP baseline inventory 

by using the most recently available 

version of EPA’s MOVES model, 

MOVES 2014a, for the calculation of onroad and non-road mobile source 

emissions. Additionally, Connecticut 

accounted for emissions available for 

use as emissions offsets held within its 

emissions offset bank within the RFP 

analysis. Connecticut relied primarily 

on the emissions projection work it had 

developed and submitted to the MidAtlantic Regional Air Management 

Association (MARAMA) for their effort 

to develop a 2017 modeling platform. 

The projection of emissions from 

electrical generating units (EGUs) was 

accomplished using a forecasting tool 

developed by the Eastern Regional 

Technical Advisory Group (ERTAC). We 

reviewed these projections during the 

public comment period that Connecticut 

held for its RFP plans and found that 

the ERTAC EGU emissions forecasts 

produced reasonable results for facilities 

in the State. 

Table 2 below contains a summary of 

the 2011 RFP baseline inventory, 2017 

target levels incorporating the 5% VOC 

and 10% NOX emission reductions, and 

2017 projected, controlled emissions for 

the Greater Connecticut and the 

Connecticut portion of the NY-NJ-CT 

nonattainment areas. Connecticut’s RFP 

analysis for its two moderate 

nonattainment areas shows that 

projected, controlled VOC and NOX

emissions in 2017 will be well below 

the emission target levels, thereby 

demonstrating that RFP has been met. 

TABLE 2—SUMMARY OF RFP CALCULATIONS FOR CT’S TWO NONATTAINMENT AREAS

Description 

VOC 

emissions (tons/summer day) 

NOX emissions 

(tons/summer day) 

RFP Baseline inventory: 

Gr. CT area .................................................................................................................................. 106.1 91.9 

CT portion of NY-NJ-CT area ...................................................................................................... 115.6 115.1 

2017 target level of emissions: 

Gr. CT area .................................................................................................................................. 100.8 82.7 

CT portion of NY-NJ-CT area ...................................................................................................... 109.8 103.6 

2017 projected, controlled emissions: 

Gr. CT area .................................................................................................................................. 84.6 56.4 

CT portion of NY-NJ-CT area ...................................................................................................... 92.3 71.3 

RFP plans must include a motor 

vehicle emissions budget (MVEB), 

which provides the allowable on-road 

mobile emissions an area can produce 

and continue to demonstrate RFP. The 

State’s RFP plans included MVEBs for 

both nonattainment areas for the year 

2017. The MVEBs are discussed in 

detail in Section III.D of this document. 

D. Motor Vehicle Emissions Budgets/ 

Transportation Conformity 

Transportation conformity is required 

by section 176(c) of the CAA. 

Conformity to a SIP means conformity 


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1Further information concerning EPA’s 

interpretations regarding MVEBs can be found in 

the preamble to EPA’s November 24, 1993, 

transportation conformity rule. See 58 FR 62193– 

62196. 

2See General Preamble, section III.A.3.c (57 FR 

13498 at 13511). 

to an implementation plan’s purpose of 

eliminating or reducing the severity and 

number of violations of the NAAQS and 

achieving expeditious attainment of the 

NAAQS, and that transportation 

activities will not produce new air 

quality violations, worsen existing 

violations, or delay timely attainment of 

the NAAQS (CAA 176(c)(1)(A) and (B)). 

The EPA’s conformity rule at 40 CFR 

part 93, subpart A requires that 

transportation plans, programs and 

projects conform to SIPs and establishes 

the criteria and procedures for 

determining whether or not they 

conform. To effectuate its purpose, the 

conformity rule requires a 

demonstration that emissions from the 

Metropolitan Planning Organization’s 

(MPO) Regional Transportation Plan 

(RTP) and the Transportation 

Improvement Program (TIP) are 

consistent with the motor vehicle 

emission budget (MVEB) contained in 

the control strategy SIP revision or 

maintenance plan (40 CFR 93.101, 

93.118, and 93.124). The MVEBs are 

defined in 40 CFR 93.101 as the level of 

mobile source emissions of a pollutant, 

of the total allowable emissions, defined 

in the SIP for a certain date, for the 

purpose of demonstrating attainment or 

maintenance of the NAAQS or for 

meeting reasonable further progress 

milestones.1

The RFP plans submitted by 

Connecticut are control strategy SIPs, 

and they contain 2017 motor vehicle 

budgets for VOCs and NOX by 

nonattainment area. Table 3 contains 

these VOC and NOX transportation 

conformity budgets in units of tons per 

summer day. 

TABLE 3—CONFORMITY BUDGETS IN THE CONNECTICUT RFP PLANS

Area name 

2017 Transportation 

conformity budgets 

[tons/day] 

VOC NOX

Greater Connecticut ................................................................................................................................................. 15.9 22.2 

CT portion of NY-NJ-CT area .................................................................................................................................. 17.6 24.6 

EPA issued a letter on March 20, 2017 

to Connecticut in which we stated that 

the budgets for the Greater Connecticut 

area were adequate for use in 

transportation conformity 

determinations. Additionally, EPA 

published an announcement of this 

adequacy finding in the Federal 

Register on May 31, 2017. See 82 FR 

24859. We did not make an adequacy 

finding for the Connecticut portion of 

the NY-NJ-CT area; however, this action 

serves to notify the public that EPA is 

reviewing for adequacy the MVEBs, 

contained in the RFP plan for the 

Connecticut portion of the NY-NJ-CT 

area, simultaneously with our proposed 

approval of the RFP plan as required by 

40 CFR part 93.118(f)(2). In this action, 

we are proposing approval of the 2008 

conformity budgets for VOC and NOX

for the areas shown in Table 3 above. 

E. Contingency Measures 

Pursuant to section 172(c)(9) of the 

CAA, nonattainment plan provisions 

must provide for the implementation of 

contingency measures. These are 

specific measures to be undertaken if a 

nonattainment area fails to make RFP, or 

to attain the national primary ambient 

air quality standard by the applicable 

attainment date. Such contingency 

measures shall take effect without 

further action by the state or the EPA. 

While the CAA does not specify the 

type of measures or quantity of 

emissions reductions required, the EPA 

has interpreted the CAA to mean that 

implementation of these contingency 

measures would provide additional 

emissions reductions of up to 3% (or a 

lesser percentage that will make up the 

identified shortfall) in the year 

following the RFP milestone year. 

Contingency measures could include 

federal measures and local measures 

already scheduled for implementation, 

as long as their emission reductions are 

beyond those needed for attainment or 

to meet RFP. The CAA does not 

preclude a state from implementing 

such measures before they are triggered 

by a failure to meet RFP. For more 

information on contingency measures, 

see the April 16, 1992 General Preamble 

(57 FR 13498, 13510) and the 2008 

ozone rule (80 FR 12264, 12285). 

Connecticut provided NOX emissions 

reductions in excess of those needed for 

RFP as contingency measures. Table 2 

above illustrates the magnitude of the 

excess emission reductions achieved by 

Connecticut’s RFP plans. For example, 

within the Greater Connecticut 

nonattainment area, the projected, 

controlled NOX emissions in 2017 of 

56.4 tons/day are 32% below the area’s 

NOX target of 82.7 tons/day. Given that 

Connecticut established the 2017 NOX

emissions target by factoring in a 10% 

reduction in emissions, the additional 

32% reduction in NOX emissions is 

more than adequate to cover the 3% 

reduction in emissions needed to satisfy 

the area’s contingency measure 

obligation. Similarly, for the 

Connecticut portion of the NY-NJ-CT 

area, the projected, controlled NOX

emissions in 2017 of 71.3 tons/day are 

31% below the area’s NOX target of 

103.6 tons day, therby providing a 

sufficient surplus to cover that area’s 

contingency measure obligation. 

Connecticut’s contingency measure 

analysis notes that the State chose to use 

NOX emission reductions from federal 

non-road engine standards occurring 

between 2012 and 2017, which form a 

part of the large overall NOX emission 

reduction surplus, as contingency 

measures. Emission reductions realized 

as newer, lower emitting equipment 

replace older, higher emitting 

equipment carry forward into the future 

and will continue to reduce emissions 

after 2017. 

The purpose of the contingency 

measures is to provide for further 

emission reductions to make up the 

shortfall needed for RFP or for 

attainment, during the period in which 

the State and the EPA determine 

whether the nonattainment plan for the 

area needs further revision to achieve 

the NAAQS expeditiously.2 The 

appropriateness of relying on alreadyimplemented reductions to meet the 

contingency measures requirement has 

been addressed in two federal circuit 

court decisions. See Louisiana 

Environmental Action Network (LEAN) 

v. EPA, 382 F.3d 575, 586 (5th Cir. 

2004), Bahr v. United States EPA, 836 


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F.3d 1218 (9th Cir. 2016), cert. denied, 

199 L. Ed. 2d 525, 2018 U.S. LEXIS 58 

(January 8, 2018). The EPA believes that 

the language of section 172(c)(9) and 

182(c)(9) is ambiguous with respect to 

this issue, and that it is reasonable for 

the agency to interpret the statutory 

language to allow approval of already 

implemented measures as contingency 

measures, so long as they meet other 

parameters such as providing excess 

emissions reductions that the state has 

not relied upon to make RFP or for 

attainment in the nonattainment plan 

for the NAAQS at issue. Until the Bahr 

decision, under the EPA’s longstanding 

interpretation of CAA section 172(c)(9) 

and 182(c)(9), states could rely on 

control measures that were already 

implemented (so called early-triggered 

contingency measures) as a valid means 

to meet the Act’s contingency measures 

requirement. The Ninth Circuit decision 

in Bahr leaves a split among the federal 

circuit courts, with the Fifth Circuit 

upholding the Agency’s interpretation 

of section 172(c)(9) to allow earlytriggered contingency measures and the 

Ninth Circuit rejecting that 

interpretation. The Second Circuit in 

which Connecticut is located has not 

addressed the issue, nor has the 

Supreme Court or any other circuit 

court other than the Fifth and Ninth. 

Because there is a split in the federal 

circuits on this issue, the EPA expects 

that states located in circuits other than 

the Ninth may elect to rely on EPA’s 

longstanding interpretation of section 

172(c)(9) allowing early-triggered 

measures to be approved as contingency 

measures, in appropriate circumstances. 

EPA’s revised Regional Consistency 

regulations pertaining to SIP provisions 

authorize the Agency to follow this 

interpretation of section 172(c)(9) in 

Circuits other than the Ninth. See 40 

CFR part 56. To ensure that earlytriggered contingency measures 

appropriately satisfy all other relevant 

CAA requirements, the EPA will 

carefully review each such measure, and 

intends to consult with states 

considering such measures early in the 

attainment plan development process. 

As shown in Table 2 above, the 

emissions reductions projected through 

2017 are sufficient to meet the 

requirements for contingency measures, 

consistent with the EPA’s interpretation 

of the CAA to allow approval of already 

implemented control measures as 

contingency measures in states outside 

the Ninth Circuit. Therefore, we propose 

approval of Connecticut’s RFP 

contingency measures. 

F. Reasonably Available Control 

Measures (RACM) Analysis 

Connecticut submitted a 

demonstration that its two moderate 

nonattainment areas have adopted all 

RACM necessary to demonstrate 

attainment as expeditiously as 

practicable as required by CAA section 

172(c)(1) and 40 CFR 51.912(d). The 

EPA interprets the CAA RACM 

provision to require a demonstration 

that: (1) The state has adopted all 

reasonable measures (including RACT) 

to meet RFP requirements and to 

demonstrate attainment as expeditiously 

as possible, and (2) no additional 

measures that are reasonably available 

will advance the attainment date or 

contribute to RFP for the area. States 

should consider all available measures, 

including those being implemented in 

other areas, but must adopt measures for 

an area only if those measures are 

economically and technologically 

feasible and will advance the attainment 

date or are necessary for RFP. 

The EPA has previously provided 

guidance interpreting the RACM 

requirements of section 172(c)(1). See 

the ‘‘General Preamble for 

Implementation of Title I of the CAA of 

1990’’ (General Preamble), 57 FR 13498, 

13560 (April 16, 1992). In that 

preamble, the EPA stated that 

potentially available measures that 

would not advance the attainment date 

for an area would not be considered 

RACM. The EPA also indicated in the 

General Preamble 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, the General 

Preamble indicates that states should 

provide in the SIP submittals a 

discussion of whether the measures 

considered are reasonably available or 

not. If the measures are reasonably 

available, they must be adopted as 

RACM. Finally, the EPA indicated that 

states could reject potential RACM 

either because they would not advance 

the attainment date or would cause 

substantial widespread and long-term 

adverse impacts. States could also 

consider local conditions, such as 

economics or implementation concerns, 

in rejecting potential RACM. On 

November 30, 1999, John S. Seitz, 

Director, Office of Air Quality Planning 

and Standards, issued a memorandum 

on this topic, ‘‘Guidance on the 

Reasonably Available Control Measures 

(RACM) Requirement and Attainment 

Demonstration Submissions for Ozone 

Nonattainment Areas’’ which reiterated 

the CAA RACM requirements and 

elaborated on the General Preamble. 

To demonstrate that the area meets 

the RACM requirement, Connecticut 

described its current regulatory 

structure limiting ozone precursor 

emissions, which stems back to the 

1980s, and evaluated the likelihood of 

additional measures being adopted that 

would advance the date of attainment 

for the 2008 ozone standard. 

Connecticut notes that stationary and 

mobile sources of VOC and NOX are 

well-controlled in the State as a result 

of numerous state and federal measures 

that have or will soon be implemented 

to reduce in-state emissions of ozone 

precursors. Connecticut’s submittal 

mentions that, with regard to major 

stationary sources, reasonable available 

control technology (RACT) is 

considered a subset of RACM. 

Stationary sources of VOC and NOX

have been subject to RACT requirements 

for several decades in light of the State’s 

nonattainment status for earlier ozone 

standards, and we recently approved 

Connecticut’s RACT certification for the 

2008 ozone NAAQS along with several 

regulatory updates that strengthened 

requirements for sources of NOX. See 82 

FR 35454; July 31, 2017. Connecticut 

concludes that its state regulations 

adopted to meet RACT, except for the 

most recent updates to NOX

requirements approved in our July 31, 

2017 approval which have an effective 

date that does not occur in time to 

advance the attainment date for the 

2008 ozone NAAQS, represent RACM 

for major sources. 

Regarding other stationary sources of 

ozone precursor emissions, Connecticut 

notes that its participation in the Ozone 

Transport Commission (OTC) has, 

among other things, resulted in the 

state’s adoption of a number of 

regulations limiting emissions from 

stationary, non-major sources of ozone 

precursor emissions. In particular, 

Connecticut notes that as part of its 

attainment planning process to meet the 

1997 ozone standard, the state adopted 

regulations recommended by the OTC 

that included regulations limiting 

emissions from consumer and 

commercial products, architectural and 

industrial maintenance coatings, asphalt 

paving operations, pressure-vacuum 

vent valves at gasoline stations, and 

limits on VOC emissions used by 

solvent cleaning operations. 

Connecticut adopted these regulations 

jointly with other OTC states as a means 

of implementing effective controls at the 

regional level, but acknowledged that 

none of these measures, implemented 

by Connecticut alone, would be 

sufficient to advance attainment by one 


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Federal Register / Vol. 83, No. 150 / Friday, August 3, 2018 / Proposed Rules 38109 

year or more. Connecticut considers its 

analysis of RACM for the 1997 ozone 

NAAQS to largely suffice for the 2008 

ozone NAAQS, but did perform an 

additional review to explore whether 

RACM for non-major stationary sources 

exist. This review found that ancillary 

NOX emission reductions that are being 

achieved by a regional haze measure, a 

reduction of the level of sulfur allowed 

in distillate and residual fuel oil, qualify 

as a RACM measure. Connecticut will 

implement this regulation in two 

phases, with Phase 1 having become 

effective on July 1, 2014. The Phase 2 

portion of the regulation does not 

become effective until July 1, 2018, are 

therefore is not considered RACM. 

Regarding mobile source emission 

reductions, Connecticut evaluated the 

impact of a number of mobile source 

initiatives, including transportation 

control measures, to evaluate their 

effectiveness at reducing ozone 

precursor emissions. Specifically, 

Connecticut’s RACM analysis included 

a summary of the emission reductions 

achieved by the Federal Highway 

Administration’s Congestion Mitigation 

and Air Quality (CMAQ) program, as 

funds from this program are used, in 

part, to improve traffic congestion, 

which in turn reduces emissions from 

on-road vehicles. For example, Table 6.2 

of Connecticut’s attainment 

demonstration submittal for the Greater 

Connecticut area shows the anticipated 

VOC and NOX emission reductions from 

specific transportation projects. The 

measures in Table 6.2 are expected to 

reduce ozone precursor emissions in 

Connecticut by less than 1%, and are 

therefore not considered to be RACM 

because they are not large enough to 

advance the attainment date by at least 

one year. Other mobile source measures, 

such as the Lawn Equipment Exchange 

Fund, reductions from the Diesel 

Emissions Reduction Act funding, 

Smartway, and EVConnecticut, were all 

found to provide meaningful reductions, 

but none were determined to advance 

the attainment date and therefore are 

not considered to be RACM. 

The RACM analysis presented by CT 

DEEP did not identify any new 

measures that would have substantially 

advanced the area’s achievement of the 

2008 ozone NAAQS, and the State notes 

that atmospheric transport from upwind 

areas on most high ozone days 

overwhelms the ability of CT DEEP to 

significantly advance Connecticut’s 

attainment date solely with in-state 

control strategies. In addition, 

Connecticut notes that EPA’s recently 

finalized bump-up process provided 

little time to adopt and implement 

additional RACM candidate measures 

prior to the 2016 ozone season, which 

would need to occur to advance the 

attainment date by one year. 

Connecticut evaluated all source 

categories that could contribute 

meaningful emission reductions and 

identified and evaluated an extensive 

list of potential control measures. The 

State considered the time needed to 

develop and adopt regulations and the 

time it would take to see the benefit 

from these measures to determine their 

reasonableness and availability. We 

agree that Connecticut has adopted all 

RACM for it’s two moderate 

nonattainment areas. Therefore, we are 

proposing to approve Connecticut’s 

RACM SIPs prepared for the State’s two 

moderate nonattainment areas. 

IV. Proposed Action 

We are proposing to approve SIP 

submittals from the State of Connecticut 

for the 2008 ozone NAAQS for the 

Greater Connecticut moderate 

nonattainment area, and for the 

Connecticut portion of the New York-N. 

New Jersey-Long Island NY-NJ-CT 

moderate nonattainment area. 

Specifically, we are proposing to 

approve the following: 

• An emission statement certification; 

• 2011 base year emission 

inventories; 

• RFP demonstrations; 

• Motor vehicle emissions budgets; 

• Contingency measures; and 

• Demonstration of RACM 

implementation. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. See 42 U.S.C. 

7410(k); 40 CFR 52.02(a). Thus, in 

reviewing SIP submissions, EPA’s role 

is to approve state choices, provided 

that they meet the criteria of the Clean 

Air Act. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• This action is not expected to be an 

Executive Order 13771 regulatory action 

because this action is not significant 

under Executive Order 12866; 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: July 31, 2018. 

Alexandra Dunn, 

Regional Administrator, EPA Region 1. 

[FR Doc. 2018–16622 Filed 8–2–18; 8:45 am] 

BILLING CODE 6560–50–P 


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