Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Connecticut
[Federal Register: May 14, 1996 (Volume 61, Number 94)]
[Rules and Regulations]
[Page 24239-24242]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[CT23-1-7084; FRL-5443-5]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Connecticut
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is responding to an adverse comment concerning EPA's
proposal to redesignate Hartford, Connecticut as attainment for carbon
monoxide. EPA is not changing its action to redesignate the area as
attainment that took effect on January 2, 1996. EPA is also correcting
an incorrect entry in the attainment status tables associated with this
action.
EFFECTIVE DATE: January 2, 1996.
FOR FURTHER INFORMATION CONTACT: Wing H. Chau, Air Quality Planning
Unit, Office of Ecosystem Protection, United States Environmental
Protection Agency, Region I, Boston, Massachusetts 02203, (617) 565-
3570.
SUPPLEMENTARY INFORMATION: On October 31, 1995, EPA published a direct
final rule (60 FR 55316) which announced that this rule would take
effect in 60 days, or January 2, 1996, unless EPA received adverse
comment on the rule within 30 days in response to a notice of proposed
rulemaking published on the same day (60 FR 55354). EPA also committed
to withdraw the direct final rule in the event it received adverse
comment, and to respond to any adverse comments in a subsequent final
rulemaking action. EPA did receive a timely adverse comment on this
rule. EPA failed, however, to withdraw the final rule within the 60
days given in the direct final rule, and the rule took effect on
January 2, 1996.
In this notice, EPA is responding to the comment it received, but
for the reasons stated below, EPA is not changing the final rule in
response to that comment. Had EPA withdrawn the direct final rule prior
to its going into effect, EPA would have taken final action based on
the proposal to promulgate a rule identical to the direct final rule
that went into effect. Rather than now take the action of withdrawing
the direct final rule only to repromulgate simultaneously an identical
rule, however, EPA in this action is deciding to maintain the rule
unchanged. EPA believes that withdrawal and repromulgation are
unnecessary since the results would be identical to that obtained
simply by leaving the rule unchanged and responding to the comments in
this notice. This notice provides interested parties an opportunity to
review how EPA addressed the comment and to petition for judicial
review of EPA's action in this final rulemaking within 60 days of
publication of this notice, as provided in section 307(b)(1) of the
Act.
Also, in the October 31, 1995 direct final rulemaking, the revised
Code of Federal Regulations (CFR) Sec. 81.307 designation table for
carbon monoxide identified a number of towns in the Litchfield,
Middlesex, and Tolland Counties as ``Nonattainment * * * Moderate
<ls-thn-eq>12.7 ppm''. The table should have shown these areas as
attainment areas for CO. The revised Sec. 81.307 designation table
associated with this final rulemaking reflects the appropriate
attainment status of the towns mentioned above. The USEPA regrets any
inconvenience these errors may have caused.
I. Summary of Action and Responses to Comments
EPA did receive one comment from the New York Mercantile Exchange
(NYMEX), dated November 29, 1995. NYMEX is the world's largest exchange
of energy futures, and NYMEX is concerned that the redesignation of the
Hartford area might affect gasoline formulation requirements and
disrupt futures contracts entered into based on gasoline formulation
requirements in effect prior to the redesignation. The comment
questioned whether EPA had offered interested persons any meaningful
opportunity to comment on this proposal, and asserted that EPA should
have provided ``far more than the limited period of notice afforded in
these redesignation approvals'' to avoid disruption in the petroleum
industry and energy futures markets when changing environmental
requirements.
As a legal matter, this SIP action is subject to the procedures of
the Administrative Procedures Act (``APA'')
[[Page 24240]]
for informal rulemaking. 5 U.S.C. Sec. 553; General Motors Corp. v.
U.S., 110 S. Ct. 2528, 2533 (1990). It is well-settled that the APA
``established the maximum procedural requirements which Congress was
willing to have the courts impose upon agencies in conducting
rulemaking procedures.'' Vermont Yankee Nuclear Power v. NRDC, 435 U.S.
519, 524 (1978). In this action EPA published a notice of proposed
rulemaking to redesignate the Hartford area as attainment for carbon
monoxide, and gave the public thirty days to comment on that proposal.
60 FR 55354 (October 31, 1995). In a simultaneous final rule EPA
informed the public that if no comment had been received within thirty
days of the accompanying proposal, the redesignation would take effect
within sixty days of the final rule. 60 FR 55316 (October 31, 1995).
EPA provided the public thirty days to comment, which is an adequate
period for public review. Indeed, NYMEX availed itself of that
opportunity to comment. Although it is unclear from the comment letter,
NYMEX may have been complaining that EPA should delay the effective
date this rule for more than thirty days following this final notice.
The APA is clear that EPA must only wait thirty days to make a rule
effective. 5 U.S.C. Sec. 553(d). EPA has fully discharged its legal
obligation to provide the public adequate notice of this action.
As a factual matter, the state of Connecticut had been developing
this redesignation proposal for much longer than thirty days. The state
published a notice concerning the redesignation on July 15, 1994, held
a public hearing on August 17, 1994 and submitted it to EPA on
September 30, 1994, fully 13 months before EPA published its notice
proposing to approve the state's request for redesignation. NYMEX and
its clients had ample opportunity to anticipate this change as a
practical matter. NYMEX's comment suggests that its gasoline futures
contracts trade ten months in advance. It would not be practical for
EPA to give ten months' notice on all such SIP actions, nor is it
legally required. For industries that are sensitive to changes in SIP
requirements and need substantial lead-time to anticipate them, EPA
encourages them to monitor SIP developments at the state level.
II. Final Rulemaking Action
The USEPA maintains the approvals associated with the October 31,
1995 direct final rulemaking (60 FR 55316) which included the
redesignation of the Hartford/New Britain/Middletown CO area to
attainment, Connecticut's 1990 base year CO emission inventory, and
Connecticut's oxygenated fuel program as it applies to the Hartford/
Britain/Middletown area.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
The CO SIP is designed to satisfy the requirements of part D of the
CAA and to provide for attainment and maintenance of the CO NAAQS. This
final redesignation should not be interpreted as authorizing the State
to delete, alter, or rescind any of the CO emission limitations and
restrictions contained in the approved CO SIP. Changes to CO SIP
regulations rendering them less stringent than those contained in the
EPA approved plan cannot be made unless a revised plan for attainment
and maintenance is submitted to and approved by EPA. Unauthorized
relaxations, deletions, and changes could result in both a finding of
non-implementation (section 179(a) of the CAA) and in a SIP deficiency
call made pursuant to sections 110(a)(2)(H) and 110(k)(2) of the CAA.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. SIP approvals under section 110 and subchapter I, part D of the
CAA do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the federal SIP
approval does not impose any new requirements, it does not have any
economic impact on any small entities. Redesignation of an area to
attainment under section 107(d)(3)(E) of the CAA does not impose any
new requirements on small entities.
Redesignation is an action that affects the status of a
geographical area and does not impose any regulatory requirements on
sources. Accordingly, I certify that the approval of the redesignation
request will not have an impact on any small entities.
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 25,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 175A and
section 187(a)(1) of the Clean Air Act. The rules and commitments
approved in this action may bind State, local and tribal governments to
perform certain actions and also may ultimately lead to the private
sector being required to certain duties. To the extent that the
imposition of any mandate upon the State, local or tribal governments
either as the owner or operator of a source or as mandate upon the
private sector, EPA's action will impose no new requirements under
State law; such sources are already subject to these requirements under
State law. Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, results from this action. EPA
has also determined that this final action does not include a mandate
that may result in estimated costs of $100 million or more to State,
local, or tribal governments in the aggregate or to the private sector.
Opportunity for Judicial Review
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 15, 1996. 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
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Nitrogen dioxide, Ozone, Reporting and record keeping
requirements, Volatile organic compounds.
[[Page 24241]]
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Note: Incorporation by reference of the State Implementation
Plan for the State of Connecticut was approved by the Director of
the Federal Register on July 1, 1982.
Dated: February 29, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Title 40 of the Code of Federal Regulations, Chapter I, Part 81
is amended as follows:
PART 81--[AMENDED]
- The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart C--Section 107 Attainment Status Designations
2. In Sec. 81.307 by revising the table for ``Connecticut--
CarbonMonoxide'' to read as follows:
Sec. 81.307 Connecticut.
Connecticut--Carbon Monoxide
Designation Classification
Date<SUP>1 Type Date<SUP>1 Type
Hartford-New Britain-Middletown
Area:
Town, Avon Town, Bloomfield
Town, Canton Town, E.
Granby Town, E. Hartford
Town, E. Windsor Town,
Enfield Town, Farmington
Town, Glastonbury Town,
Granby Town, Hartford City,
Manchester Town,
Marlborough Town, Newington
Town, Rocky Hill Town,
Simsbury Town, S. Windsor
Town, Suffield Town, W.
Hartford Town, Wethersfield
Town, Windsor Town, Windsor
Locks Town, Berlin Town,
New Britain city,
Plainville Town, and
Southington Town.
Litchfield County (part):
Plymouth Town
Middlesex County (part):
Hampton Town, Haddam Town,
Middlefield Town, Middleton
city, Portland Town, E. Haddam
Town.
Andover Town, Boton Town,
Ellington Town, Hebron Town,
Somers Town, Tolland Town, and
Vernon Town
New Haven--Meriden--Waterbury Area:
Fairfield County (part):
Litchfield County (part):
Bethlehem Town, Thomaston Town, ........... Attainment.
Watertown, Woodbury Town
New Haven County:
New York--N. New Jersey--Long Island
Area:
Fairfield County (part):
Shelton City
Bridgewater Town, New Milford
Town
Not classified
Nonattainment.......... ........... Moderate > 12.7 ppm
Nonattainment.......... ........... .......................
AQCR 041 Eastern Connecticut
Intrastate:
........... Unclassifiable/ ........... ....................
Attainment.
Middlesex County (part):
All portions except cities and
towns in Hartford Area.
New London County:
Tolland County (part):
All portions except cities and
towns in Hartford Area.
Windham County:
AQCR 044 Northwestern Connecticut
Intrastate:
........... Unclassifiable/ ........... ....................
Attainment.
Hartford County (part):
Hartland Township
Litchfield County (part):
All portions except cities and
towns in Hartford, New Haven,
and New York Areas.
<SUP>1 This date is November 15, 1990, unless otherwise noted.
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