Approval and Promulgation of Air Quality Implementation Plans; Connecticut; New Source Review/Prevention of Significant Deterioration Revision

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
  [Federal Register: January 21, 2003 (Volume 68, Number 13)]
[Proposed Rules]
[Page 2722-2726]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ja03-21]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CT-068-7225b; A-1-FRL-7440-9]
 
Approval and Promulgation of Air Quality Implementation Plans; 
Connecticut; New Source Review/Prevention of Significant Deterioration 
Revision

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the Connecticut Department of Environmental 
Protection (DEP). The revisions include new provisions that implement 
the core requirements of 1990 Clean Air Act Amendments (CAAA) regarding 
nonattainment New Source Review (NSR) in areas that have not attained 
the National Ambient Air Quality Standards (NAAQS). In addition, the 
changes amend the applicability requirements and certain other 
requirements of the Prevention of Significant Protection (PSD) program 
and NSR rules. Finally, the changes provide a definition for 
``Practicably Enforceable'' that would allow sources a streamlined 
approach to limit potential to emit for PSD/NSR applicability purposes. 
In aggregate, these revisions will substantially strengthen the DEP's 
air permitting rules.
    This action proposes to approve the revisions to section 22a-174-1, 
``Definitions,'' section 22a-174-2a, ``Procedural Requirements for New 
Source Review and Title V Permitting,'' and section 22a-174-3a, 
``Permit to Construct and Operate Stationary Sources.'' This action is 
being taken in accordance with the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before February 11, 2003.

ADDRESSES: Comments may be mailed to Steven A. Rapp, Manager, Air 
Permits, Toxics and Indoor Programs, Office of Ecosystem Protection 
(mail code CAP), U.S. Environmental Protection Agency, EPA-New England, 
1 Congress Street--Suite 1100, 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; Air and Radiation Docket and 
Information Center, U.S. Environmental Protection Agency, Room B-108 
West, 1301 Constitution Avenue, NW., Washington DC and the Bureau of 
Air Management, Department of Environmental Protection, State Office 
Building, 79 Elm Street, Hartford, CT 06106-1630.

FOR FURTHER INFORMATION CONTACT: Brendan McCahill, (617) 918-1652; 
email at McCahill.Brendan@EPA.GOV.

SUPPLEMENTARY INFORMATION: On May 23, 1994, the DEP formally submitted 
revisions to its SIP for the purposes of meeting the 1990 CAAA 
requirements for nonattainment NSR. Due to various issues with these 
revisions and the pre-existing state rules, EPA did not take action on 
this SIP submittal. On June 14, 2002, after completing a top to bottom 
review of its entire state permitting program, the DEP formally 
withdrew the May 23, 1994 submittal and submitted new revisions to its 
SIP.
    EPA has recently promulgated revisions to certain portions of the 
federal PSD and nonattainment NSR regulations (67 FR 80244 (Dec. 31, 
2002). These rules have an effective date of March 3, 2003. With 
respect to Connecticut's rules relating to new source review, EPA has 
determined that Connecticut's rules meet the requirements of 40 CFR 
part 51, subpart I, as currently in effect, and is taking no position 
on whether Connecticut will need to make changes to its new source 
review rules to meet requirements that EPA has promulgated, but are not 
yet effective, as part of new source review reform.
    The rule revisions proposed for approval today are the product of a 
comprehensive, multi-year, stakeholder process intended to increase the 
effectiveness of Connecticut's program. The rules proposed for approval 
include important flexibility provisions discussed below, including 
provisions that provide a framework for establishing ``practicably 
enforceable'' limits on ``potential to emit'' and provisions allow 
sources to consider decreases in emissions as well as increases in 
determining applicability. Not only do the rules proposed for approval 
increase flexibility, but they also enhance the enforceability of the 
state program. Therefore, EPA believes it is appropriate to propose 
approval of these rules under the rules that are currently in effect in 
order to significantly strengthen the state program.

I. Revisions to the Nonattainment NSR Rules

A. What Is Nonattainment NSR?

    The CAA requires new major sources and major modifications to 
existing major sources to obtain an air pollution permit before 
commencing construction. The nonattainment NSR rules are the set of 
regulations specifying the minimum permit requirements for new major 
sources or major modifications in areas that are in nonattainment of 
the NAAQS. The nonattainment NSR rules include two major elements: (1) 
Requirements that subjected sources obtain emission reductions 
(``offsets'') from existing sources to ensure a progression toward 
achieving the NAAQS and; (2) requirements that sources apply controls 
that achieve Lowest Achievable Emission Rate (LAER) to ensure emissions 
are controlled to the greatest degree possible.

B. Why Does Connecticut Need To Revise Its Rules?

    In 1990, Congress revised the CAA to include new general 
requirements that apply to all nonattainment areas and additional 
requirements that apply to ozone nonattainment areas. In particular, 
the amended provisions for NSR in ozone nonattainment areas require 
substantially more stringent applicability and offset requirements over 
the pre-1990 NSR requirements. All portions of Connecticut are 
currently designated as nonattainment areas for ozone.

C. Where Can One Locate Additional Information on the General 
Requirements for Nonattainment NSR?

    The air quality planning requirements for nonattainment NSR are set 
out in part D of subchapter I of the CAA The EPA has issued a ``General 
Preamble'' describing EPA's preliminary views on how EPA intends to 
review SIPs and SIP revisions submitted under part D, including those 
state submittals containing nonattainment area NSR SIP requirements 
(see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). 
Because this notice describes EPA's interpretations only in broad 
terms, the reader should refer to the General Preamble for a more 
detailed discussion of the interpretations of part D advanced in 
today's proposal and the supporting rationale.

D. How Did Connecticut Satisfy the General NSR Requirements?

    The general nonattainment NSR requirements are found in sections 
172 and 173 of part D of subchapter I of the

[[Page 2723]]

Act and must be met by all nonattainment areas. The following 
paragraphs reference the nonattainment NSR requirements required to be 
submitted to EPA by November 15, 1992 and explain how Connecticut's 
rules meet those requirements. Connecticut's existing SIP already 
contained some of these provisions while others are being proposed for 
approval today.
    1. Section 22a-174-3a(l)(5)(D), establishes provisions in 
accordance with section 173(a)(1)(A) of the CAA to assure that 
calculations of emissions offsets are based on the same emissions 
baseline used in the demonstration of Reasonable Further Progress 
(RFP).
    2. Section 22a-174-3a(l)(4)(B)(viii) establishes provisions in 
accordance with section 173(c)(1) of the CAA to allow offsets to be 
obtained in another nonattainment area if: (i) The area has an equal or 
higher nonattainment classification and, (ii) emissions from the other 
nonattainment area contribute to an NAAQS violation in the area in 
which the source would construct.
    3. Section 22a-174-3a(l)(4)(B)(i)&(iii), establishes provisions in 
accordance with sections 173(a) and 173 (c)(1) of the CAA that any 
emissions offsets obtained in conjunction with the issuance of a 
license to a new or modified source shall be federally enforceable 
before permit issuance and must be in effect and enforceable by the 
time the new or modified source commences operation.
    4. Sections 22a-174-1(26), ``CERC,'' 22a-174-3a(l)(4)(B)(ii) &, 
22a-174-3a(l)(5), establish provisions in accordance with section 
173(c)(1) of the CAA to assure that emission increases from new or 
modified sources are offset by real reductions in actual emissions.
    5. Sections 22a-174-1(26), ``CERC,'' 22a-174-3a(l)(4)(B)(ii) &, 
22a-174-3a(l)(5) establishes provisions in accordance with section 
173(c)(2) of the CAA to prevent emissions reductions otherwise required 
by the Act from being credited for purposes of satisfying part D offset 
requirements.
    6. The 1990 CAAA modified the Act's provisions on growth allowances 
in nonattainment areas by (1) Eliminating existing growth allowances in 
the nonattainment area that received a notice prior or subsequent to 
the Amendments that the SIP was substantially inadequate, and (2) 
restricting growth allowances to only those portions of nonattainment 
areas formally targeted as special zones for economic growth (Sections 
173(b) and 173(a)(1)(B) of the CAA). Connecticut's regulations do not 
contain provisions for growth allowances and are consequently 
consistent with the Act.
    7. Connecticut has a practice of supplying information from 
nonattainment NSR licenses to EPA's RACT/BACT/LAER clearinghouse in 
accordance with section 173(d) of the CAA.
    8. Section 22a-174-3a(l)(6) establishes provisions, in accordance 
with section 173(a)(3) of the CAA, to ensure that owners or operators 
of each proposed new or modified major stationary source demonstrate, 
as a condition of license issuance, that all other major stationary 
sources under the same ownership in the State are in compliance with 
the CAA.
    9. Section 22a-174-3a(l)(2) establishes provisions in accordance 
with section 173(a)(5) of the CAA that, as a prerequisite to issuing 
any Part D permit, require an analysis of alternative sites, sizes, 
production processes and environmental control techniques for proposed 
sources that demonstrate that the benefits of the proposed source 
significantly outweigh the environmental and social costs imposed as a 
result of its location, construction, and modification.
    10. Section 22a-174-3a(l)(8)(A) establishes provisions in 
accordance with section 173(a)(4) of the CAA that, as a prerequisite to 
issuing any Part D permit, the Administrator has not determined that 
the applicable implementation plan is not being adequately implemented 
for the proposed nonattainment area in which the proposed source is to 
construct or be modified.

E. What Are the Requirements for NSR in Ozone Nonattainment Areas?

    As mentioned, the general nonattainment NSR requirements found in 
sections 172 and 173 of part D of subchapter I of the Act must be met 
by all nonattainment areas. The requirements for ozone nonattainment 
areas that supplement or supersede these requirements are found in 
subpart 2 of part D. In addition to requirements for ozone 
nonattainment areas, subpart 2 includes section 182(f), which states 
that requirements for major stationary sources of VOC shall apply to 
major stationary sources of oxides of nitrogen (NO_X) unless 
the Administrator makes certain determinations related to the benefits 
or contribution of NO_X control to air quality, ozone 
attainment, or ozone air quality. States were required under section 
182(a)(2)(C) to adopt new NSR rules for ozone nonattainment areas by 
November 15, 1992.

F. How Did Connecticut Comply With the Subpart 2 Requirements?

    Pursuant to section 172(c)(5) of the CAA, State implementation 
plans must require permits for the construction and operation of new or 
modified major stationary sources in nonattainment areas. The federal 
statutory permit requirements for ozone nonattainment areas are 
generally contained in revised section 173, and in subpart 2 of 
subchapter I, part D of the CAA. These are the minimum requirements 
that States must include in an approvable implementation plan. For all 
classifications of ozone nonattainment areas, States must adopt the 
appropriate major source thresholds and offset ratios, and must adopt 
provisions to ensure that any new or modified major stationary source 
of NO_X satisfies the requirements applicable to any major 
source of VOC, unless a special NO_X exemption is granted by 
the Administrator under the provision of section 182(f).
    Connecticut was required to meet the subpart 2 requirements because 
all portions of the state are designated as in nonattainment for ozone. 
Most of Connecticut is designated as in ``serious'' nonattainment, 
except for southwest Connecticut, which is designated as in ``severe'' 
nonattainment. The following paragraphs reference the serious and 
severe ozone nonattainment requirements that Connecticut was required 
to submit to EPA by November 15, 1992 and how Connecticut has met those 
requirements.
    1. Section 22a-174-1(57) ``Major Stationary Source,'' establishes 
provisions in accordance with the serious nonattainment area 
requirements provided in sections 182(c) and 182(f) of the CAA, by 
setting a major source threshold level of 50 TPY for VOC and for 
NO_X.
    2. Section 22a-174-1(57) ``Major Stationary Source,'' establishes 
provisions in accordance with the severe nonattainment area 
requirements provided in sections 182(d) and 182(f) of the CAA, by 
setting a major source threshold level of 25 TPY for VOC and for 
NO_X.
    3. Section 22a-174-1 (55) ``Major Modification,'' establishes 
provisions in accordance with the serious and severe nonattainment area 
requirements provided in sections 182(c)(6) and 182(d) of the CAA, by 
setting a major modification threshold level of 25 TPY for VOC and for 
NO_X.
    4. Section 22a-174-3a(l)(4)(B)(x) establishes provisions in 
accordance with the serious nonattainment areas

[[Page 2724]]

provided in sections 183(c)(10) and 182(f) of the CAA, by setting an 
offset ratio of 1.2 to 1 for major sources or major modifications of 
VOC or NO_X.
    5. Section 22a-174-3a(l)(4)(B)(x) establishes provisions in 
accordance with the severe nonattainment areas provided in sections 
183(d)(2) and 182(f) of the CAA, by setting an offset ratio of 1.3 to 1 
for major sources or major modifications of VOC or NO_X.
    6. Connecticut's regulations do not include provisions that apply 
EPA's special rules for modifications as defined in sections 182(c)(7) 
and (8) of the CAA. The special rules for modifications are optional, 
less stringent applicability/permitting requirements that apply to a 
small number of modifications in serious and severe nonattainment 
areas. By not including provisions for section 182(c)(7) and (8), DEP's 
rules are more stringent than the CAA. Since the DEP rules only allows 
the most stringent applicability/permitting option, its SIP meets the 
federal requirements.

G. What Provisions of the 1990 CAAA Has Connecticut Not Properly 
Addressed?

    For serious and severe ozone nonattainment areas, State plans must 
implement section 182(c)(6) with regard to modifications of major 
sources. Commonly referred to as the de minimis rule, the provision 
requires state permitting authorities to submit rules that require 
sources to consider all contemporaneous emission changes occurring 
within the last five calender years of a physical change when 
determining if the change is major modification.
    As noted above, Connecticut contains serious and severe 
nonattainment areas and therefore must implement the de-minimis rule. 
However, the DEP's SIP submittal is not clear regarding implementation 
of this rule. The rule only requires sources to keep records of de-
minimis emission increases but does not explain how these emissions 
will be used to define a major modification. As a result, the DEP's NSR 
rules do not completely satisfy the requirements of the CAA. Since this 
submittal includes the remaining NSR requirements of the CAA and 
substantially strengthens the DEP's SIP, EPA is proposing to approve as 
a SIP strengthening measure all portions of the submittal except for 
the provisions for the de-minimis rule. EPA intends to work with DEP to 
develop an approvable de-minimis provision in the future.

II. Revisions to the Major Modification Applicability Requirements for 
the PSD Program and Nonattainment NSR Rules

A. How Does EPA Define a Major Modification Under Its Rules That Are in 
Effect?

    EPA defines a major modification as a physical change or a change 
in the method of operation of a major stationary source that results in 
a significant net emissions increase. EPA's definition for net emission 
increase consists of two additive components: (a) Any increase in 
actual emissions from a particular physical change or change in method 
of operation and; (b) any other increase or decrease in actual 
emissions at the source that are contemporaneous with the particular 
change and are creditable. If the resultant net emissions increase is 
greater than the significance level for any Title I regulated 
pollutant, the physical change is a major modification and subject to 
PSD/NSR requirements.
    The first component of net emission increase narrowly includes only 
the emission increase associated with a particular change at the 
source. When calculating the emission increase, EPA's rules in effect 
generally employ what is commonly called the actual-to-potential test 
(special provisions in effect for electric utility steam generating 
units are discussed below). The maximum potential emissions from a 
modified emission unit after the modification is compared to the actual 
emissions from the emission unit before the modification. The 
difference between the unit's potential emissions and its current 
actual emissions is the actual emission increase from the modification.
    The second component allows sources to broadly include changes in 
actual emissions that have occurred anywhere at the source within the 
contemporaneous period, typically defined by state rules as five years 
from the time of the modification under review. It provides sources the 
opportunity to avoid major PSD/NSR applicability by giving a source 
credit for reducing emissions at other emission units located anywhere 
at its facility. If the actual emission increase from the modification 
under review combined with emission decreases source-wide are below 
significance level for any given regulated pollutant, the modification 
is not major and not subject to PSD/NSR. When employing component two, 
federal rules also require sources to include any creditable emission 
increases occurring source-wide when calculating the net emission 
increase.

B. Why Is Connecticut Changing Its Rules?

    The DEP's existing SIP-approved rules use a different approach for 
calculating the emission increase from a modification. Instead of the 
actual-to-potential test, the DEP uses the potential-to-potential test. 
This method compares the emission units potential before the 
modification with its potential after the modification. The DEP also 
does not allow sources the option to take credit for emission changes 
occurring source-wide. Adopting provisions that reflect the EPA rules 
that are currently in effect significantly improves Connecticut's 
program.

C. How Does Connecticut's Submittal Meet the Federal Requirements?

    EPA's ``actual to potential'' applicability test and ``net 
emissions increase'' requirements for PSD/NSR applicability are 
established in the federal definitions for ``Actual emissions,'' 
``Potential emissions,'' ``Net emission increase,'' and ``Significant 
emissions.'' In section 22a-174-1, the DEP is adopting with minor 
revisions the definitions for ``Actual emissions,'' ``Net emission 
increase,'' and ``Significant emissions'' located in 40 CFR 51.165 and 
51.166. In addition, the DEP is adopting a definition of ``Potential 
emissions'' that requires sources to effectively limit PTE using either 
federally or practicably enforceable limits. With these definitions, 
the DEP's PSD/NSR applicability requirements are consistent with 
existing federal requirements.
    EPA notes that federal applicability requirements also provide a 
separate applicability method for sources defined as electric steam 
utility generators. For this source category, EPA regulation applies an 
actual-to-representative actual emissions test. A sources current 
actual emissions are compared to the source's predicted future actual 
emissions to determine the emission increase from a modification.
    The provisions for this applicability test, referred to as the 
WEPCO applicability test, were added to the federal NSR regulations 
following the Seventh Circuit Court of Appeals decision in 1990 
((Wisconsin Electric Power Company (WEPCO) v. Reilly)). These 
provisions include definitions for ``electric steam utility generator'' 
and ``representitive actual annual emissions.'' While these definitions 
are referred to in the DEP's new definition of actual emissions, the 
DEP did not explicitly define these two terms.

[[Page 2725]]

However, the DEP's interpretation of state law provides it the 
authority to implement all provisions of the federal ``actual 
emissions'' definition that is incorporated by reference into its 
rules. This authority extends to the definitions for ``Electric steam 
utility generator'' and ``Representative actual annual emissions'' that 
are referenced in the federal definition but not explicitly defined in 
the state rule. Consequently, the DEP's rules comply with all 
provisions of the federal definition for ``actual emissions'' including 
the provisions for the WEPCO applicability test.

III. Revisions That Make Various Definitions Used in the State's 
Nonattainment NSR Rules and PSD Program Consistent With Federal 
Definitions

A. What Definitions Is the DEP Adding or Revising?

    The DEP is adding or revising definitions to clarify general 
requirements of its permitting rules and to make the rules consistent 
with the federal permitting requirements. The list of new or revised 
definitions includes: Allowable Emissions; Baseline concentration; 
Begin Actual Construction; Commence construction; Construction; 
Emission limitation and emission standard; Emissions Unit; Excessive 
concentration; Federally enforceable; Good engineering practice; 
Innovative control technology, Malfunction; Secondary emissions; and 
Volatile organic compound.
    Several definitions and other terms in Connecticut's rules 
reference EPA's NSR and PSD rules in the Code of Federal Regulations 
(CFR). Under Connecticut law, when the reference is to a CFR section 
``as amended from time to time,'' the reference is intended to 
incorporate amendments to the CFR made subsequent to state publicly 
noticing its proposal to adopt these rules. When the reference is 
simply to the CFR, it is to the EPA rules in effect as of July 17, 
2001, which is the date DEP publicly noticed the proposed rule 
amendments.

B. How Will These Definitions Affect Permitting in Connecticut?

    The DEP's decision to incorporate the federal permitting program 
definitions under 40 CFR 51.100-166 will ensure the DEP's permit 
procedures and permit decisions will be consistent with federal 
requirements. In addition, EPA policies and guidance will be directly 
applicable to the DEP's rules ensuring more consistent program 
implementation and improved program compliance.
    For further details concerning the revisions to Connecticut's SIP 
and EPA's analysis, please refer to the memorandum from Brendan 
McCahill, Environmental Engineer, to Steven Rapp, Manager, Air Permits 
Program entitled, ``Technical Support Document--Connecticut New Source 
Review/Prevention of Significant Deterioration Program Revisions,'' 
dated January 10, 2003, available upon request from the EPA regional 
office noted in the ADDRESSES section of this document.

IV. Proposal To Approve Revisions To Allow Sources To Limit Potential 
To Emit (PTE) Through Practicably Enforceable Limitations

A. Why Is PTE Important?

    As explained in section II, the emissions increase from a 
modification is the difference between an emission unit's PTE after the 
modification and its actual emissions before the modification. 
Therefore, the rules governing how PTE limits are created and enforced 
is critically important in any PSD/NSR applicability determination. EPA 
defines ``potential to emit'' as the maximum capacity of a stationary 
source to emit a pollutant under its physical and operational design. 
Absent an inherent physical or operational restriction, EPA calculates 
PTE assuming the source operating full time (i.e., 8760 hours/year) at 
its maximum emission rate. Federal rules allow sources to overcome this 
assumption by accepting physical or operation restrictions that limit 
PTE. Typically, sources accept PTE limits to reduce the net emission 
increase from a modification and avoid NSR applicability. For example, 
a source may accept a restriction on hours of operation (e.g., 4000 
hours/year) if the restriction results in a PTE that reduces the net 
emission increase calculation to below the NSR/PSD applicability 
threshold levels.
    Up to 1995, EPA's NSR and PSD rules required limits on PTE to be 
federally enforceable. The term ``federally enforceable'' incorporates 
two fundamental elements. First, EPA must have direct right to enforce 
restrictions and limitations. Second, limits must be enforceable as a 
practicable manner or ``practicably enforceable.'' EPA has issued 
several guidance documents explaining the requirements of practicably 
enforceable. In brief, EPA has interpreted ``practicably enforceable'' 
to mean that sufficient monitoring, recordkeeping and reporting exists 
such that the source and/or permitting authority can show continual 
compliance with the emission limitation.
    EPA's requirement that a PTE limitation that keeps a source out of 
a CAA requirement must be federally enforceable was legally challenged 
by industry. In Chemical Manufacturer's Association V. EPA, No. 89-1514 
(D.C. Cir. Sept. 15 1995), the court vacated the EPA's requirements 
that physical or operational restrictions on a source's PTE be 
federally enforceable. As a result, states may develop and submit for 
EPA approval NSR/PSD programs under 40 CFR 51.165/51.166 that include 
provisions for state-enforceable PTE limits provided that the 
provisions are practicably enforceable and effectively limit the 
source's emissions.

B. What Are Connecticut's Provisions Regarding PTE?

    The DEP's new definition of ``practicably enforceable'' will allow 
sources the option of taking either federally enforceable or 
practicably enforceable PTE limits. In developing this definition, the 
DEP closely followed EPA's guidance on practicably enforceable 
limitations in a January 25, 1995 memorandum from John Sietz, director 
of the Office of Air Quality Planning and Standards entitled ``Options 
for Limiting the Potential to Emit of a Stationary Source Under Section 
112 and title V of the Clean Air Act.'' The policy specifies the 
following minimum elements required for a practicably enforceable 
limitation: (1) A technically accurate limitation and identifying the 
portions of the source subject to the limitation; (2) the time period 
for the limitation and; (3) the method to determine compliance 
including appropriate monitoring, recordkeeping and reporting. The DEP 
worked closely with EPA to ensure its definition followed EPA guidance 
on practicably enforceable limits and included these three minimum 
requirements. As a result, in the absence of any federal rules 
reimposing mandated federally enforceable PTE limits, EPA proposes to 
approve the DEP's ``practicably enforceable'' definition.

V. Proposed Action

    EPA is proposing to approve the SIP revision submitted by 
Connecticut on June 14, 2002.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New

[[Page 2726]]

England Regional Office listed in the ADDRESSES section of this action. 
Comments must be received on or before February 11, 2003. Comments 
received after this date will be considered late. EPA is not required 
to consider late comments.

VI. Regulatory Assessment 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 tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: January 10, 2003.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. 03-1239 Filed 1-17-03; 8:45 am]
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