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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 20, 2003 (Volume 68, Number 119)]
[Rules and Regulations]
[Page 36921-36925]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn03-23]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R1-7218d; A-1-FRL-7513-2]

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

-----------------------------------------------------------------------

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

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

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

FOR FURTHER INFORMATION CONTACT: Dan Brown at (617) 918-1532 or via E-
mail at brown.dan@epa.gov.

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

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

I. What Action Is EPA Taking Today?

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

[[Page 36922]]

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

II. Why Is EPA Taking This Action?

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

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

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

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

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

[[Page 36923]]

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

IV. What Did the States Submit?

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

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

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

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

[[Page 36924]]

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

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

VI. What Are the Applicable Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999), because it merely approves a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 19, 2003. Interested
parties should comment in response to the proposed rule rather than
petition for judicial review, unless the objection arises after the
comment period allowed for in the proposal. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone.

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

? 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 52.370 is amended by adding paragraph (c)(86)(ii)(C) and (D)
to read as follows:

Sec. 52.370 Identification of plan.

* * * * *
(c) * * *

[[Page 36925]]

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

Subpart W--Massachusetts

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

Sec. 52.1120 Identification of plan.

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

Subpart OO--Rhode Island

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

Sec. 52.2070 Identification of plan.

* * * * *
(e) * * *

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

[FR Doc. 03-15126 Filed 6-19-03; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

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

Local Navigation