[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Proposed Rules]
[Pages 21568-21578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10660]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2008-0117, FRL-8901-2]
Disapproval of Air Quality Implementation Plans; Connecticut;
Attainment Demonstration for the Connecticut Portion of the New York-N.
New Jersey-Long Island, NY-NJ-CT 8-Hour Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing action on the
ozone attainment demonstration portion of a comprehensive State
Implementation Plan (SIP) revision submitted by Connecticut to meet
Clean Air Act (CAA or Act) requirements for attaining the 8-hour ozone
national ambient air quality standard. EPA is proposing to disapprove
Connecticut's demonstration of attainment of the 1997 8-hour ozone
standard for the Connecticut portion of the New York-N. New Jersey-Long
Island, NY-NJ-CT 8-hour ozone nonattainment area (New York City ozone
nonattainment area).
DATES: Written comments must be received on or before June 8, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2008-0117, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (617) 918-0047.
4. Mail: ``Docket Identification Number EPA-R01-OAR-2008-0117'',
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, Suite 1100 (mail code CAQ),
Boston, MA 02114-2023.
5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2008-0117. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov, or e-
mail, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. 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 either electronically in www.regulations.gov or
in hard copy at Office of Ecosystem Protection, U.S. Environmental
Protection Agency, EPA New England Regional Office, One Congress
Street, Suite 1100, Boston, MA. EPA requests that if at all possible,
you contact the person 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 to 4:30, excluding
legal holidays.
In addition, copies of the state submittal are also available for
public inspection during normal business hours, by appointment at the
State Air Agency; the Bureau of Air Management, Department of
Environmental
[[Page 21569]]
Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-
1630. It has also been posted on the Connecticut DEP Web site at:
http://www.ct.gov/dep/cwp/view.asp?a=2684&q=385886&depNav_GID=1619.
FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality
Planning Unit, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA
02114-2023, telephone number (617) 918-1664, fax number (617) 918-0664,
e-mail [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What Action Is EPA Proposing?
II. Background Information
A. History and Time Frame for the State's Attainment
Demonstration SIP
B. Moderate Area Requirements
C. Clean Air Act Requirement for Multi-State Ozone Nonattainment
Areas
III. What is Included in Connecticut's SIP Submittal?
IV. EPA's Review and Technical Information
A. What Are the Components of an Attainment Demonstration?
B. What Are the Results of Connecticut's Attainment
Demonstration and Weight of Evidence Analysis?
1. EPA's Requirements
2. EPA's Analysis
3. Summary of Weight-of-Evidence Discussion
C. What Is EPA's Evaluation of the SIP?
V. What Are the Consequences of a Disapproved SIP?
A. What Are the Act's Provisions for Sanctions?
B. What Federal Implementation Plan Provisions Apply if a State
Fails to Submit an Approvable Plan?
C. What Are the Ramifications Regarding Conformity?
VI. Proposed Action
VII. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
The Environmental Protection Agency has reviewed Connecticut's
comprehensive State Implementation Plan revision for attaining the 0.08
parts per million (ppm) 8-hour ozone national ambient air quality
standards (NAAQS or standard) \1\ in the Connecticut portion of the New
York City ozone nonattainment area along with other related Clean Air
Act requirements necessary to ensure attainment of the standard. This
SIP was submitted by Connecticut on February 1, 2008. The EPA is
proposing to disapprove Connecticut's 8-hour ozone attainment
demonstration for the Connecticut portion of the New York-N. New
Jersey-Long Island, NY-NJ-CT nonattainment area, because the EPA has
determined that the photochemical modeling does not demonstrate
attainment and the weight of evidence analysis that Connecticut uses to
support the attainment demonstration for this area does not include
sufficient evidence to provide confidence that the area will attain the
NAAQS by the June 2010 deadline.
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\1\ In 2008, EPA promulgated a more stringent 8-hour standard of
0.075 ppm. (See 73 FR 16435 (March 27, 2008).) All references to the
8-hour ozone standard in this rulemaking refer to the 8-hour
standard promulgated in 1997.
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EPA's analysis and findings are discussed in this proposed
rulemaking. Additional technical support memoranda for this proposal
are available on line at www.regulations.gov, Docket No. EPA-R01-OAR-
2008-0117. Specifically, the docket contains the following:
1. The February 1, 2008 State Implementation Plan Revision
Regarding Attainment of the 8-Hour Ozone Standard in Connecticut.
2. An EPA memorandum, dated December 23, 2008, from Bob McConnell,
entitled, ``Emissions Trends in the New York-N. New Jersey-Long Island,
NY-NJ-CT 8-hour Ozone Nonattainment Area.''
3. An EPA memorandum, dated January 7, 2009, from Anne McWilliams,
entitled, ``Air Quality Trends in the New York-N. New Jersey-Long
Island, NY-NJ-CT 8-hour Ozone Nonattainment Area.''
II. Background Information
A. History and Time Frame for the State's Attainment Demonstration SIP
In 1997, EPA revised the health-based NAAQS for ozone, setting it
at 0.08 ppm averaged over an 8-hour time frame. EPA set the 8-hour
ozone standard based on scientific evidence demonstrating that ozone
causes adverse health effects at lower ozone concentrations and over
longer periods of time than was understood when the pre-existing 1-hour
ozone standard was set. EPA determined that the 8-hour standard would
be more protective of human health, especially with regard to children
and adults who are active outdoors, and individuals with a pre-existing
respiratory disease, such as asthma.
On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to
the 8-hour ozone standard. These designations became effective on June
15, 2004. In addition, EPA promulgated its Phase 1 Rule for
implementation of the 8-hour standard, which provided how areas
designated nonattainment for the 8-hour ozone standard would be
classified. (See April 30, 2004 (69 FR 23951).) The entire state of
Connecticut is designated nonattainment, divided between two moderate
ozone nonattainment areas, the New York-N. New Jersey-Long Island, NY-
NJ-CT nonattainment area, and the Greater Connecticut nonattainment
area. The Connecticut portion of the New York City ozone nonattainment
area consists of the following Connecticut counties: Fairfield; New
Haven; and Middlesex. The Greater Connecticut area covers the rest of
the state. Today's proposed disapproval is only for the Connecticut
portion of the New York City ozone nonattainment area. We will propose
action on the ozone attainment demonstration for the Greater
Connecticut nonattainment area in a separate rulemaking.
The designations referenced above triggered the Act's requirements
under section 182(b) for moderate nonattainment areas, including a
requirement to submit an attainment demonstration. EPA's Phase 2 8-hour
ozone implementation rule (Phase 2 Rule), published on Nov. 29, 2005
(70 FR 71612), specifies that states must submit attainment
demonstrations for their nonattainment areas to the EPA by no later
than three years from the effective date of designation, that is, by
June 15, 2007. (See 40 CFR 51.908(a).)
B. Moderate Area Requirements
On November 29, 2005, EPA published the Phase 2 Implementation rule
which addresses the control obligations that apply to areas designated
nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and
Phase 2 Rules outline the SIP requirements and deadlines for various
requirements in areas designated as moderate nonattainment. For such
areas, modeling and attainment demonstrations were due by June 15,
2007, along with reasonable further progress plans, reasonably
available control measures, motor vehicle emissions budgets (MVEBs) and
contingency measures (40 CFR 51.908(a), and (c), 51.910, and 51.912).
Today's action addresses Connecticut's demonstration of attainment of
the 8-hour ozone standard for the Connecticut portion of the New York-
N. New Jersey-Long Island, NY-NJ-CT nonattainment area, which for
moderate areas is to be attained by June 2010. In order to demonstrate
attainment by June 2010, the area must adopt and implement all controls
necessary for attainment by the
[[Page 21570]]
beginning of the 2009 ozone season and demonstrate that the level of
the standard will be met during the 2009 ozone season.
C. Clean Air Act Requirement for Multi-State Ozone Nonattainment Areas
Section 182(j) of the Clean Air Act requires each state within a
multi-state ozone nonattainment area to specifically use photochemical
grid modeling and take all reasonable steps to coordinate,
substantively and procedurally, the revisions and implementation of
State implementation plans applicable to the nonattainment area
concerned. Under this subsection of the Clean Air Act, EPA may not
approve any SIP revision for a State that fails to comply with these
requirements.
III. What is included in Connecticut's SIP submittal?
After completing the appropriate public notice and comment
procedures, Connecticut made a submittal to address the Act's 8-hour
ozone moderate nonattainment area requirements identified in Section
II.B. On February 1, 2008, Connecticut submitted a comprehensive 8-hour
ozone SIP for the Connecticut portion of the New York City ozone
nonattainment area. It included an attainment demonstration, a
reasonable further progress (RFP) plan, a reasonably available control
measures (RACM) analysis, contingency measures, and on-road MVEBs for
2008, 2009, and 2012.
Only the attainment demonstration portion of the SIP submittal is
evaluated in this proposal. EPA will take action on the other portions
of Connecticut's February 1, 2008 SIP submittal in a separate,
forthcoming Federal Register.
IV. EPA's Review and Technical Information
A. What Are the Components of an Attainment Demonstration?
Section 110(a)(2)(k) of the Clean Air Act requires states to
prepare air quality modeling to show how they will meet ambient air
quality standards. EPA determined that states must use photochemical
grid modeling, or any other analytical method determined by the
Administrator to be at least as effective, to demonstrate attainment of
the ozone health-based standard in areas classified as `moderate' or
above, and to do so by the required attainment date. (See 40 CFR
51.908(c); and Section 182(j) of the CAA.) In 40 CFR 51.903, EPA
specified how areas would be classified with regard to the eight-hour
ozone standard set by EPA in 1997. EPA followed these procedures and
classified the New York-N. New Jersey-Long Island, NY-NJ-CT ozone
nonattainment area as moderate (69 FR 23858). Since the attainment date
is June 2010 for moderate areas, these areas must achieve emission
reductions by the beginning of the ozone season of 2009 in order for
ozone concentrations to be reduced, and meet the level of the standard
during the last complete ozone season before the 2010 deadline. (See 40
CFR 51.908(d).)
EPA's photochemical modeling guidance is found at Guidance on the
Use of Models and Other Analyses for Demonstrating Attainment of Air
Quality Goals for Ozone, PM2.5, and Regional Haze, EPA-454/B-07-002,
April 2007. The photochemical modeling guidance is divided into two
parts. One part describes how to use a photochemical grid model for
ozone to assess whether an area will come into attainment of the air
quality standard. A second part describes how the user should perform
supplemental analyses, using various analytical methods, to determine
if the model over predicts, under predicts, or accurately predicts the
air quality improvement projected to occur by the attainment date. The
guidance indicates that states should review these supplemental
analyses, in combination with the modeling analysis, in a ``weight of
evidence'' assessment to determine whether each area is likely to
achieve timely attainment.
Connecticut's SIP submittal addresses each of the elements of a
modeling attainment demonstration. The plan explains how on warm, sunny
days, winds at the surface and aloft move emissions from sources of
ozone-forming chemicals within and outside Connecticut to create high
ozone concentrations in Connecticut. In addition, emissions from large
out of state combustion sources are transported by upper-level winds to
Connecticut, adding to the ozone formed locally.
The Ozone Transport Commission's (OTC's) Modeling Committee
developed a protocol for modeling the ozone problem in the northeastern
United States. The OTC Modeling Committee coordinated preparing and
running the photochemical grid model. It chose the Community Multi-
scale Air Quality Model (CMAQ) as the photochemical grid model of
choice. EPA concurs that this model is appropriate for modeling the
formation and distribution of ozone. The model domain covered almost
all of the eastern United States, with a high-resolution grid covering
the states in the northeast ozone transport region, including
Connecticut.
The OTC Modeling Committee used weather data for the entire 2002
ozone season in the CMAQ. The year 2002 was the base year for the
attainment plans and the year of the emission inventory used in the
base year modeling. Using a full ozone season covered many different
weather conditions when ozone episodes occur and exceeds EPA's
recommendations for episode selection. The OTC Modeling Committee used
MM5, a weather forecast model, to provide weather conditions for the
photochemical grid model. Details about how the states used the MM5
model is in Appendix 8 of Connecticut's SIP.
States across the eastern United States provided emissions
information from their sources to be used in the model. The Mid
Atlantic Regional Air Management Association (MARAMA) collected and
quality assured the states' emissions data and processed these data for
use by the photochemical grid model. The states also included the
control measures that were already adopted, as well as the control
measures that the states are committing to adopt from a list of
``Beyond On the Way'' (BOTW) control measures. The lists of control
measures provided by the states to be included in the modeling are
summarized in Connecticut's submittal in Appendix 4.
The performance of the CMAQ photochemical grid model in predicting
ozone, and the chemicals that form ozone, met EPA's guidelines for
model performance. The model outputs are generally consistent with the
day-to-day patterns of observed data, with low bias and error. The OTC
Modeling Committee noted that the modeling system tends to over predict
low concentrations and slightly under predict peak concentrations.
For the attainment test, the state used the results from the
photochemical grid model in a relative sense, as recommended by EPA's
photochemical modeling guidance, by calculating the difference from
ozone predicted in 2002 to ozone predicted with the emission controls
Connecticut and other states planned to have in place in 2009. Details
can be found in the state's submittal in Section 8.
B. What Are the Results of the Connecticut's Attainment Demonstration
and Weight of Evidence Analysis?
According to Table 8.4.4.1 in the Connecticut SIP submittal
entitled ``CMAQ Modeling Results for Connecticut for 2009 and 2012,''
the basic photochemical grid modeling used by Connecticut predicts that
the
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maximum 2009 design value \2\ in the New York City ozone nonattainment
area will be 87 parts per billion (ppb). Thus, the photochemical model
predicts Connecticut will not reach the 84 ppb concentration level that
marks attainment of the ozone standard, by the 2009 ozone season. Table
8.4.4.1 does, however, show that attainment is predicted by 2012, with
a maximum predicted design value of 83 ppb.
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\2\ Under EPA regulations at 40 CFR Part 50, the 8-hour ozone
standard is attained when the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentrations at an
ozone monitor is less than or equal to 0.08 parts per million (ppm)
(i.e., 0.084 ppm, based on the rounding convention in 40 CFR Part
50, Appendix I). This 3-year average is referred to as the design
value. When the design value is less than or equal to 0.084 ppm (84
parts per billion (ppb)) at each monitor within the area, then the
area is meeting the 1997 ozone NAAQS. (See 69 FR 23857 (April 30,
2004) for further information.)
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1. EPA's Requirements
EPA's photochemical modeling guidance strongly recommends states
complement the photochemical air quality modeling in situations where
modeling predicts the area to be close to (within several parts ppb of)
the 84 ppb ozone standard. Connecticut did perform additional analyses
to bolster their attainment analysis. EPA can accept results of a
weight of evidence determination to supplement the attainment
demonstration; however, the greater the difference between the ozone
standard and the photochemical modeling predictions, the more
compelling the additional evidence produced by these additional
analyses needs to be. In its photochemical modeling guidance, EPA notes
that, if the concentration predicted by the photochemical model is 88
ppb or higher, it is far less likely that the more qualitative
arguments made in a weight of evidence determination can be
sufficiently convincing to conclude that the ozone standard will be
attained. In Connecticut's case, the submitted photochemical model
prediction of 87 ppb in the New York City ozone nonattainment area does
not exceed 88 ppb. Connecticut, however, used non-guideline methods in
its analysis. As shown below, if EPA guidance is followed, the design
value for the Connecticut portion of the New York City ozone
nonattainment area is predicted to be 90 ppb at the Stratford,
Connecticut monitor at the end of the 2009 ozone season. This value is
greater than 88 ppb, the upper range for a normal weight of evidence
analysis. Thus, if 90 ppb is the appropriate level based on the
modeling, the additional evidence needed to show that this area will
actually attain the ozone standard, must be very compelling for EPA to
approve the attainment demonstration.
2. EPA's Analysis
The photochemical modeling results, used according to EPA's
guidelines, predict the New York City ozone nonattainment area will not
attain by 2009. Connecticut's SIP deviates from the EPA guideline
methods to adjust for perceived flaws in the photochemical grid model
and to account for ozone reductions that may be produced by additional
measures not included in the model. Connecticut supports their
alternative analyses using data and other research to make the case
that the New York City ozone nonattainment area may attain the ozone
standard by the 2009 ozone season.
EPA has carefully reviewed Connecticut's attainment demonstration
including their supplementary data and research. EPA attempted to
determine if the additional information provided by Connecticut is an
acceptable supplement to the photochemical grid modeling and can be
approved by EPA to meet the Clean Air Act requirement as ``* * * any
other analytical method determined * * * to be at least as effective''
to supplement the photochemical grid modeling (40 CFR 51.908). EPA has
evaluated the information provided by the State and other information
relevant to whether or not this ozone nonattainment area will attain
the ozone standard by 2009 and concludes that this information does not
demonstrate that Connecticut will attain the ozone standard by 2009.
EPA's review shows that Connecticut's attainment demonstration uses
a method for determining the baseline 2002 ozone design value that is
not consistent with EPA's modeling guidance. Connecticut uses a linear
average of five fourth highest ozone values for each monitor in the
nonattainment area for the years 2000-2004. This results in a baseline
design value at the Stratford, Connecticut ozone monitor of 95.4 ppb.
EPA's modeling guidance recommends using an average of the three years
of design value centered on 2002, which creates a weighted five-year
average. While Connecticut's SIP notes that EPA's method of providing a
weighted average baseline value weights the base year of 2002 more
heavily than other years, EPA intended this, so that the resulting
value was influenced the most by the ozone data from the base year of
the emission inventory. Using the EPA's modeling guidance method yields
a baseline design value of 98.3 ppb at that same monitor.
The straight five-year average method used by Connecticut, while
centered on 2002, is skewed by giving 2004 as much influence as other
years. The ozone data from 2004 includes the effects of reductions made
between the base year 2002 and the attainment year of 2009, when a
major reduction in nitrogen oxides (NOX) occurred. Since
these emission reductions are accounted for in the photochemical grid
modeling, we believe it is inappropriate to also consider them in
determining the baseline design value. Specifically, EPA's
NOX SIP Call and NOX Budget Trading Program
produced significant reductions before the 2004 ozone season. The
summer of 2004 was also a cooler than normal summer, possibly biasing
the baseline design value further downward toward attainment. In an
unweighted five-year average, 2004 has as much influence on the result
as each of the other four years, so it provides a significant bias
toward attainment. Selecting only a method that is lower than the
recommended method is not a balanced use of the weight of evidence
analysis. EPA does not find Connecticut's selected method of adjusting
the baseline design value to be sufficiently justified and cannot
accept it as a supplemental method of demonstrating attainment.
Using the baseline design value for the Stratford site of 98.3 ppb
(derived using EPA's recommended method), and the 0.919 relative
reduction factor calculated for this monitoring location yields a 2009
design value of 90 ppb. This is outside the upper bound of 88 ppb for a
simple weight of evidence analysis, and significantly above the 84 ppb
concentration used as the benchmark for attaining the ozone air quality
standard. EPA does not rule out the use of alternative methods even
when the photochemical grid modeling results are far from attaining the
standard, but EPA's modeling guidance notes that more qualitative
results are less likely to support a conclusion differing from the
outcome of the modeled attainment test. The guidance notes that, in
most cases, considerable amounts of precursor control (e.g., 20-25
percent or more, which are huge reductions) would be needed to lower
projected ozone design values even by 3 ppb.
In Connecticut's weight of evidence analysis, they include a
variety of analyses to support their conclusion ``that there is a
credible case for attainment throughout all of Southwest Connecticut by
the end of the 2009 ozone season.'' Connecticut's weight of evidence
analysis (Section 8.5 of their
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submittal) includes discussions about the following topics:
Modeling Uncertainties Indicate the CMAQ Model May
Overpredict 2009 Ozone Levels (Section 8.5.1)
Air Quality Trends Indicate the CMAQ Model May Overpredict
2009 Ozone Levels (Section 8.5.2)
Attainment Levels Have Been Achieved During a Previous
Cool Summer (Section 8.5.3)
``Clean Data'' in 2009 Would Qualify SWCT for Clean Air
Act Extension Year(s) (Section 8.5.4)
Modeling Does Not Include Several Important Emission
Control Strategies (Section 8.5.5)
We discuss the details of Connecticut's analyses and EPA's
conclusions in the sections that follow.
Modeling Uncertainties Indicate the CMAQ Model May Overpredict
2009 Ozone Levels
Section 8.5.1 of Connecticut's SIP cites research of ozone levels
during an electrical blackout in the recent past that suggests the
model under predicts the amount of ozone reduction that actually
occurred during the electrical blackout, or at least points out the
CMAQ model ``stiffness'' to power plant emission reductions. (See
Section 8.5.1.2, entitled ``Modeling Uncertainty Related to CMAQ's
Response to Emission Reductions'' of the Connecticut SIP submittal.)
During the blackout, measured ozone was lower than expected because
some power plants and some other major sources of ozone-forming
compounds were shut down. There are at least two ways to determine what
ozone concentrations would have been if the major sources of ozone-
forming compounds operated on that day. One way is to model the changes
with the power plants operating, and with the power plants not
operating and comparing the results. The other is by comparing the
blackout day with a past high ozone day with similar weather and wind
patterns, when the power plants operated. The research cited by
Connecticut compared the blackout episode with days in the past with
similar weather conditions, when the sources were operating. However,
EPA concludes that the past episode when the power plants operated is
not similar enough to the blackout day to draw a valid comparison. The
comparison day had winds coming from areas that were not the ones most
affected by the blackout, so the comparison is not convincing. There
may be other days that were more similar to the meteorological patterns
on the blackout day, but the fact remains that no two days are the
same. The emissions precursors, ozone, and meteorological patterns on
the day of and the days preceding the blackout will never occur the
same way twice.
Connecticut cited the work of other researchers who ran a
photochemical grid model on the blackout day with and without the
blacked-out emissions. The modeled change in ozone was smaller than the
change in ozone measured between the comparison day and the blackout
day, so Connecticut concluded that the model did not reduce ozone as
much between the blackout and non-blackout emissions. Thus, this may be
a sign that the model is not responsive enough to emission reductions,
or ``stiff.'' However, the differences between the modeled change and
the change between monitored days may be because a sufficiently similar
day was not found to determine how much ozone was really reduced on the
blackout day. The other researchers cited by Connecticut also believed,
on the blackout day, that the shutdown power plants had a limited
effect on ozone in this area. Another point is that these studies did
not look at the effect of the blackout on air quality in the urban
nonattainment areas like those featured in this notice. There is no
comparison using modeling of these blackout days and similar days with
the goal of determining the effect of blacked out sources on ozone in
the northeast corridor's urban areas or other studies that would have
attempted to explain and perhaps quantify the extent of the transport
issue in the states' application of the photochemical grid model.
After careful review of these studies, EPA has found uncertainties
in the Connecticut SIP technical analysis and therefore does not accept
Connecticut's conclusion that the modeling system under predicts
changes in ozone as emissions change. Arguments in Connecticut's SIP
that the model may not give full credit for emission reductions are
supported by limited modeling work. Connecticut has not tested its
hypothesis with its own modeling. There are other studies and ambient
data that suggest contradictory conclusions. EPA believes any
additional ozone reductions beyond the photochemical modeling are
likely to be far less than claimed in Connecticut's SIP.
Connecticut also argues that the inadequate incorporation by the
modeling system of NOX emissions occurring during high
electric demand days (HEDD) may also be one of the contributors to
modeling uncertainty that may result in overestimation by CMAQ of
projected 2009 design values. (See Section 8.5.1.1, entitled ``Modeling
Uncertainty Related to HEDD Emissions'' of the Connecticut SIP
submittal.)
The Connecticut SIP discusses how NOX emissions from the
electricity generating source sector vary widely both diurnally and on
a day-to-day basis, dependent upon the demand for electricity and the
emission characteristics of the mix of electric generating units (EGUs)
dispatched to meet changing demand and reserve capacity requirements.
Connecticut notes that the highest level of EGU emissions typically
occur on hot summer days, when the demand for air conditioning results
in dispatch of load-following and quick-start EGU peaking units, most
of which emit NOX at much higher rates (per unit of heat
input or power output) than base-load units. The SIP includes a number
of graphs that depict the variability of EGU emission profiles in New
England and in the metropolitan New York City-New Jersey area upwind
from Connecticut.
The Connecticut SIP states that the ``large (i.e., factor of two)
underestimate of EGU NOX emissions on high demand days has
implications for CMAQ modeling results in both the baseline and future
year modeling scenarios. Effectively doubling modeled levels of EGU
emissions on high demand days (which are often high ozone days)
increases the importance of the EGU sector relative to other source
categories. As a result, post-2002 controls on the EGU sector, such as
the CAIR program and potential HEDD strategies, may result in greater
improvements in actual future year ozone levels than the current
modeling results indicate.'' (See page 8-20 of Section 8.5.1.1.)
EPA agrees that the underestimate of EGU NOX emissions
on high demand days has implications for CMAQ modeling results. The
solution to this, however, is to model them as accurately as possible
in the modeling, not to theorize about how the results might change if
they were properly accounted for in the modeling analysis. Moreover,
Connecticut's argument regarding HEDD emissions only supports their
current SIP submittal's prediction of attainment by 2009, if there are
substantial reductions from the EGU sector that are occurring between
now and the beginning of the 2009 ozone season. Connecticut's SIP
submittal contains insufficient evidence to support this.
Air Quality Trends Indicate the CMAQ Model May Overpredict
2009 Ozone Levels
Section 8.5.2 of Connecticut's SIP depicts the significant
improvement in measured 8-hour ozone values and 8-
[[Page 21573]]
hour design values over the last 25 years or so. Based on its analysis
through the 2006 ozone season, Connecticut contends that the
``improvements in measured ozone levels suggest that Southwest
Connecticut is on-track to achieve the necessary design value of less
than 85 ppb to attain the 8-hour NAAQS by the end of the 2009 ozone
season.'' (See page 8-26 of Section 8.5.2.1.) Connecticut also points
out that measured design values in the New York-N. New Jersey-Long
Island, NY-NJ-CT area for the 2004 through 2006 time period were close
to the concentrations predicted by the photochemical grid model for
2009.
When final quality assured air quality data for 2007 are included
in the analysis, however, the design value remains the same or
increases for each of the Connecticut ozone monitors in the New York-N.
New Jersey-Long Island, NY-NJ-CT area. (See Table 1 below.) The design
values for the 2004 through 2006 time period were biased low by the
cooler-than-normal summer of 2004. The design values for the 2005
through 2007 are generally greater that the values predicted by the
photochemical grid modeling (using the EPA guideline methodology),
which suggests that the photochemical modeling is not under predicting
as suggested.
Based on preliminary 2008 ozone data, the design values for the
2006 through 2008 time period have decreased somewhat, but not in a
fashion that supports the argument that the modeling system is over
predicting ozone in the attainment year. (See Table 1 below.)
Table 1--Trend in the 8-hr Design Value for Selected Monitors in the Connecticut Portion of the New York City
Nonattainment Area
----------------------------------------------------------------------------------------------------------------
8-Hour ozone design values (ppm)
-----------------------------------------------------------
Monitor location Monitor ID 2001- 2002- 2003- 2004- 2005- 2006-
2003 2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
Danbury, CT........................... 090011123 0.096 0.093 0.091 0.092 0.094 0.088
Greenwich, CT......................... 090010017 0.100 0.092 0.087 0.087 0.090 0.089
Madison, CT........................... 090093002 0.102 0.095 0.090 0.088 0.093 0.088
Middletown, CT........................ 090070007 0.098 0.092 0.090 0.089 0.092 0.088
Stratford, CT......................... 090013007 0.102 0.095 0.090 0.088 0.092 0.088
Westport, CT.......................... 090019003 0.097 0.092 0.089 0.087 0.087 0.087
----------------------------------------------------------------------------------------------------------------
Currently, the overall design value in the nonattainment area is 89
ppb, which is significantly above the NAAQS given that there is only
one summer remaining before the 2009 attainment deadline. EPA has
analyzed the emission reductions that the states are predicting between
now and the 2009 ozone season, and does not believe there will be
enough improvement to reduce the preliminary 2006-2008 ozone design
value ppb in the New York-N. New Jersey-Long Island, NY-NJ-CT area from
89 ppb to the level of 84 ppb necessary for attainment in 2009.
Table 2 below contains a summary of the predicted emissions
expected to occur by sector in the New York-N. New Jersey-Long Island,
NY-NJ-CT area in 2008 and 2009 compared to 2002 levels. These data were
derived from the ozone attainment plans submitted by Connecticut, New
Jersey, and New York for their respective portions of the New York-N.
New Jersey-Long Island, NY-NJ-CT nonattainment area. More details on
these calculations can be found in the EPA memorandum, dated December
23, 2008, from Bob McConnell, entitled, ``Emissions Trends in the New
York-N. New Jersey-Long Island, NY-NJ-CT 8-hour Ozone Nonattainment
Area.''
Table 2--Summary of Estimated Emissions in the New York City Nonattainment Area for 2002, 2008, and 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
2002 2008 2009
---------------------------------------------------------------------------------------------------
Sector VOC NOX VOC NOX VOC NOX
(tpd) (tpd) (tpd) % rdxn (tpd) % rdxn (tpd) % rdxn (tpd) % rdxn
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point............................................... 93.4 358.9 78.0 16.5 263.5 26.6 76.6 18.0 263.6 26.6
Area................................................ 788.9 109.9 701.6 11.1 105.9 3.6 684.0 13.3 105.4 4.1
On-road............................................. 468.1 808.9 263.9 43.6 415.9 48.6 246.0 47.4 383.9 52.5
Non-road............................................ 471.1 378.2 352.3 25.2 316.6 16.3 337.0 28.5 307.7 18.6
---------------------------------------------------------------------------------------------------
Total........................................... 1,821.5 1,655.9 1,395.8 23.4 1,101.9 33.5 1,343.6 26.2 1,060.6 36.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
As illustrated in Table 2, anthropogenic VOC and NOX
emissions were predicted to decline between 2002 and 2008 by 23.4% and
33.5%, respectively. By 2009, anthropogenic VOC and NOX
emissions are predicted to decline from 2002 levels by 26.2% and 36.0%,
respectively. Between 2008 and 2009, ozone precursor emission
reductions in the area are modest compared with the predicted
reductions between 2002 and 2008. These modest levels of reductions
between 2008 and 2009 do not support a conclusion that there will be an
accelerated level of ozone reduction between the 2008 and 2009 ozone
seasons, which would be necessary for the nonattainment area to either
attain by 2009 or be eligible for a one-year extension of the
attainment date.\3\
---------------------------------------------------------------------------
\3\ To demonstrate attainment by the end of the 2009 ozone
season, the average of the 4th highest level at each of the monitors
for the ozone seasons of 2007-2009, would need to be at or below 84
ppb. To be eligible for a 1-year attainment date extension, the 4th
highest level at each of the monitors for the 2009 ozone season
would need to be at or below 84 ppb.
---------------------------------------------------------------------------
[[Page 21574]]
Also, in addition to the local emission reductions, improvements in
ozone air quality in the past five years were also assisted by reduced
regional emissions from EPA's NOX SIP Call and
NOX Budget Trading Program and large fleet turnover in the
automobile fleet (retiring older more polluting cars and replacing them
with new cleaner cars). These measures produced a significant decrease
in ozone. However, the reductions from the NOX SIP Call and
NOX Budget Trading Program are completed, so further
reductions in transported ozone are likely to be minimal. Thus, it is
not likely that ozone will continue to decrease at the rate observed in
the past five years unless local emission reductions are expanded to
amounts well beyond those in the present state SIPs.
In summary, EPA's analysis is that recent ozone data do not support
Connecticut's adjustments to the modeling results in its weight of
evidence analyses. Also, 2008 ozone data do not support the State's
contention that the model is under predicting ozone for 2009, because
if this was the case, these areas would be closer to attainment based
on 2007 and 2008 data. Since only a modest amount of additional
emission reductions are quantified to occur in the New York City ozone
nonattainment area between 2008 and 2009, EPA finds the case for
attainment in 2009 unacceptable.
Attainment Levels Have Been Achieved During a Previous Cool
Summer
Connecticut argues in Section 8.5.3 of its SIP that the occurrence
of one or more cool summers would increase the prospects of attaining
the ozone standard in Southwest Connecticut by the end of 2009. They
point to the 2004 summer as an example when there were only 6 days with
maximum temperatures of 90 [deg]F or higher (an average summer has 17
days >=90 [deg]F), and, as a result, all Connecticut ozone monitors,
except for Danbury, recorded 4th highest 8-hour ozone levels that were
less than the 8-hour ozone NAAQS of 85 ppb. Connecticut further argues
that emissions have decreased significantly since the 2004 ozone
season, and ``[b]ased on that level of emission reduction, if one or
more of the summers of 2007, 2008 and 2009 are similar to, or even
slightly warmer than the summer of 2004, compliance with the NAAQS
could be achieved.'' This argument is flawed for a number of reasons.
The Clean Air Act requires that SIPs provide for the reductions in
emissions of volatile organic compounds and oxides of nitrogen as
necessary to attain the NAAQS by the applicable attainment date. (See
Section 182(b)(1)(A).) It is not appropriate to rely on favorable
meteorology as a method for predicting attainment, but rather emission
reductions should be achieved that will ensure attainment even under
unfavorable meteorological conditions, which can occur as frequently as
those that are favorable. Moreover, the summers of 2007 and 2008 have
already occurred, and as noted previously, the preliminary design value
for the area based on 2006 through 2008 data is 89 ppb. In order for
this area to reach attainment by the end of 2009, the ozone monitors in
this area would have to record uncharacteristically low 4th high 8-hour
ozone levels in 2009.
``Clean Data'' in 2009 Would Qualify SWCT for Clean Air Act
Extension Year(s)
Section 8.5.4 of Connecticut's SIP discusses the Clean Air Act
provisions under sections 172(a)(2)(C) and 181(a)(5), which provide for
the opportunity of up to two one-year extensions of the attainment
date. The SIP notes that ``Southwest Connecticut could reach attainment
of the NAAQS in 2011 and still comply with CAA requirements for
moderate nonattainment areas.'' However, the SIP does not make a
compelling case that this will actually happen.
The provisions of 40 CFR Section 51.907 state:
``For purposes of applying sections 172(a)(2)(C) and 181(a)(5) of
the CAA, an area will meet the requirement of section 172(a)(2)(C)(ii)
or 181(a)(5)(B) of the CAA pertaining to 1-year extensions of the
attainment date if:
(a) For the first 1-year extension, the area's 4th highest daily 8-
hour average in the attainment year is 0.084 ppm or less.
(b) For the second 1-year extension, the area's 4th highest daily
8-hour value, averaged over both the original attainment year and the
first extension year, is 0.084 ppm or less.
(c) For purposes of paragraphs (a) and (b) of this section, the
area's 4th highest daily 8-hour average shall be from the monitor with
the highest 4th highest daily 8-hour average of all the monitors that
represent that area.''
EPA has looked at the historical ozone monitoring data for the New
York-N. New Jersey-Long Island, NY-NJ-CT nonattainment area, and does
not believe that the ozone trends in the area support the view that the
area is on track to meet these provisions. Since the promulgation of
the 1997 ozone standard, over 10 years ago, the entire nonattainment
area has always had multiple monitors during each ozone season with a
4th highest daily 8-hour average above 84 ppb, even in summers that
were not meteorologically conducive for ozone formation. In 2007, 14 of
the 22 ozone monitors located in the nonattainment area recorded a 4th
highest 8-hour ozone average above 0.084 ppm. Based on preliminary 2008
data, it appears at least 5 monitors recorded a 4th highest 8-hour
ozone average above 0.084 ppm, and EPA believes it is unlikely that
every monitor in 2009 will have a 4th highest 8-hour ozone average
below this level. (For more information see EPA memorandum, dated
January 7, 2009, from Anne McWilliams, entitled, ``Air Quality Trends
in the New York-N. New Jersey-Long Island, NY-NJ-CT 8-hour Ozone
Nonattainment Area.'')
Modeling Does Not Include Several Important Emission Control
Strategies
Section 8.5.5 of Connecticut's SIP attempts to quantify some
emission reductions not included in the modeling. Connecticut contends
that the CMAQ modeling conducted for the attainment demonstration does
not account for several control strategies that are expected to provide
additional emission reductions in the 2009 timeframe, thereby
increasing the likelihood that ozone levels in 2009 will be lower than
the modeled levels. Table 8.5.5 of the Connecticut submittal
articulates what these measures are but does not make any quantifiable
assessment of what the emission reduction potential of these measures
might be or how that might effect future ozone levels. It appears to
EPA that many of these measures, such as energy efficiency and high
electricity demand day emission controls, have the potential to reduce
emissions over time as they are phased in and fully implemented.
However, none of them appear to have the potential to substantially
reduce emissions before the 2009 ozone season which would be necessary
to support approval of Connecticut's attainment demonstration.
Moreover, the most effective way to predict changes in ozone is through
air quality modeling and Connecticut did not perform additional
modeling runs including these additional measures. Finally, in order
for a control measure's benefit to be creditable towards attainment,
the measures must be enforceable by the state and EPA and included in
the SIP. Therefore, these measures cannot be relied upon to make up the
difference
[[Page 21575]]
between the modeling projection and attainment.
Moreover, Connecticut also has several emission control rules and
regulations that it uses in the CMAQ model, but has not yet submitted
to EPA for final approval into the SIP. These include regulations for
industrial, commercial and institutional boilers. In addition, new
rules for adhesives and sealants and asphalt paving, as well as
revisions to the state's municipal waste combustor rules, were not
included in the February 1, 2008 SIP submittal but were more recently
submitted and are currently under review by EPA. EPA cannot approve the
attainment demonstration SIP until all of the measures relied on in the
attainment demonstration SIP are submitted by Connecticut and approved
into the SIP by EPA.
3. Summary of Weight of Evidence Discussion
With Connecticut's photochemical grid modeling results predicting a
2009 projected design value above the air quality health standard for
the New York-N. New Jersey-Long Island, NY-NJ-CT nonattainment area,
the State carries a heavy burden to demonstrate that the weight of
evidence supports a conclusion that attainment will be timely reached.
Connecticut needed to supply a substantial amount of evidence that the
model is seriously overestimating future ozone concentrations. Modeling
and air quality studies provided by Connecticut do not support an
argument that the model over predicts concentrations in 2009. Air
quality data through 2008 are far above the level needed for attainment
and do not support the hypothesis that the models are incorrect. In
order to be persuasive in demonstrating the area would timely attain,
present air quality concentrations should be closer to the standard
since Connecticut is only one summer from when it should be attaining
the standard.
Reductions anticipated taking effect between now and the beginning
of the 2009 ozone season are also not enough to close this gap.
Connecticut has suggested that it will be adopting additional emission
reduction strategies which will reduce ozone, but these reductions are
not yet in place and they are not likely to reduce ozone enough to
provide for attainment by 2009.
The information and calculations provided by Connecticut's SIP
emphasize methods or data that support their claims that the
nonattainment area could attain the standard by the deadline. EPA's
review of the ``weight of evidence'' analyses must evaluate a spectrum
of likely alternative calculations, not only those that tend to show
the area will attain the ozone standard. The scale cannot be weighted
only one way, toward lower design values. As noted before, the method
recommended by EPA's guidance and other reasonable variations on EPA's
methods predict the area will not attain the ozone standard by 2009.
Connecticut has provided information in support of its ``weight of
evidence.'' However, EPA has determined this information does not
demonstrate that the proposed adjustments to the photochemical grid
model's attainment year forecast will give a more accurate answer than
the calculations based on EPA's recommendations in its modeling
guidance.
C. What Is EPA's Evaluation of the SIP?
EPA has carefully evaluated the information provided by Connecticut
and other information it deems relevant to help determine if the New
York City ozone nonattainment area will attain by its deadline, as
required by the CAA and as allowed in EPA's modeling guidance. The
result of the evaluation using EPA's recommended methods predicts that
the New York City ozone nonattainment area will not attain the standard
in the attainment year of 2009. EPA finds Connecticut's argument that
attainment in the New York City ozone nonattainment area is achievable
in 2009 is unconvincing, and does not satisfy the requirements of the
Clean Air Act that SIPs provide for attainment of the NAAQS by the
applicable attainment date.
EPA is also concerned that Connecticut did not meet the
requirements of section 182(j) of the Clean Air Act which requires each
state within a multi-state ozone nonattainment to take all reasonable
steps to coordinate, substantively and procedurally, the revisions and
implementation of State implementation plans. Although Connecticut did
coordinate with New York and New Jersey on the initial modeling
analyses, there are a number of areas where the weight of evidence
analyses and conclusions regarding the modeling differ. Most
importantly, the New York Department of Environmental Conservation (NY
DEC) concluded that attainment was not possible by 2009 and, on April
4, 2008, submitted a request to EPA to voluntarily reclassify its
portion of the New York City ozone nonattainment area from moderate to
serious. The attainment plan submitted by NY DEC on February 8, 2008
contained a demonstration of attainment by June 15, 2013, consistent
with a serious classification. In a letter dated November 17, 2008, EPA
recommended that Connecticut DEP make a similar request. In a response
dated December 5, 2008, the Connecticut DEP chose not to request a
voluntary reclassification.
In general, EPA's conclusions can be summarized as follows:
Connecticut's modeling, using an appropriate photochemical
grid model and EPA's guidance methods, does not predict attainment in
the New York City ozone nonattainment area by 2009.
Connecticut's attainment demonstration greatly relied on
adjustments to the baseline design value calculations that differ from
EPA's modeling guidance and, more importantly, is not sufficiently
justified and is biased toward a conclusion that the New York City
ozone nonattainment area will attain the standard.
Regardless of the issues raised by Connecticut regarding
the performance of EPA's recommended air quality models, the air
quality measured in the New York City ozone nonattainment area during
2007 and preliminary 2008 data exceeded the ozone standard by a
significant margin. Even a linear comparison of the percentage of
additional emission reductions planned by the state with the needed
improvement in air quality between 2008 and 2009 indicates it is
unlikely that air quality in the New York City ozone nonattainment area
will improve enough to meet the ozone standard by 2009.
When comparing the measured ozone concentrations in 2007
to the ozone concentrations predicted for 2009 by using EPA's
recommended application of the photochemical grid modeling, the
photochemical grid model does not exhibit the magnitude of inaccuracies
suggested in Connecticut's attainment demonstration. Preliminary data
from the 2008 ozone season also does not support Connecticut's
demonstration of attainment by 2009.
Air quality trend data indicate that it is unlikely that
the New York City ozone nonattainment area will qualify for a one-year
extension of the attainment date.
Connecticut's attainment demonstration relies in part on
emission reductions resulting from a commitment to adopt and implement
a number of regulations prior to the start of the 2009 ozone season.
Some of these were included in the photochemical grid modeling. These
include regulations for industrial, commercial and institutional
boilers. As of the date of this action, these controls have not yet
been submitted to EPA for approval into the
[[Page 21576]]
SIP. In addition, new rules for adhesives and sealants and asphalt
paving as well as revisions to the state's municipal waste combustor
rules, were not included in the February 1, 2008 SIP submittal but were
more recently submitted and are currently under review by EPA. EPA
cannot approve the attainment demonstration SIP until all of the
measures relied on in the attainment demonstration SIP are submitted by
Connecticut and approved into the SIP by EPA.
Connecticut did not take all reasonable steps as required
by CAA section 182(j) to coordinate, substantively and procedurally,
with the other states in the multi-state nonattainment area on the
revisions and implementation of State implementation plans applicable
to the nonattainment area.
For these reasons, EPA proposes to disapprove the attainment
demonstration portion of Connecticut's February 1, 2008 SIP submittal.
The photochemical grid modeling, if performed according to EPA's
guidelines, predicts Connecticut's nonattainment area will fall short
of attaining the ozone standard by a substantial margin. Connecticut
provides additional information to support its argument that the area
will attain the standard by 2009, but the additional information does
not provide the level of compelling evidence for EPA to have confidence
that this nonattainment area will attain the NAAQS by the deadline.
V. What Are the Consequences of a Disapproved SIP?
This section explains the consequences of a disapproval of a SIP
under the Act. The Act provides for the imposition of sanctions and the
promulgation of a federal implementation plan (FIP) if a state fails to
submit a plan revision that corrects the deficiencies identified by EPA
in its disapproval.
A. What Are the Act's Provisions for Sanctions?
If EPA disapproves a required SIP or component of a SIP, such as
the Attainment Demonstration SIP, section 179(a) provides for the
imposition of sanctions unless the deficiency is corrected within 18
months of the final rulemaking of disapproval. The first sanction would
apply 18 months after EPA disapproves the SIP. Under EPA's sanctions
regulations, 40 CFR 52.31, the first sanction would be 2:1 offsets for
sources subject to the new source review requirements under section 173
of the Act. If the state has still failed to submit a SIP for which EPA
proposes full or conditional approval 6 months after the first sanction
is imposed, the second sanction will apply. The second sanction is a
limitation on the receipt of Federal highway funds. EPA also has
authority under section 110(m) to sanction a broader area, but is not
proposing to take such action in today's rulemaking.
B. What Federal Implementation Plan Provisions Apply if a State Fails
To Submit an Approvable Plan?
In addition to sanctions, if EPA finds that a state failed to
submit the required SIP revision or disapproves the required SIP
revision, or a portion thereof, EPA must promulgate a FIP no later than
2 years from the date of the finding if the deficiency has not been
corrected within that time period.
C. What Are the Ramifications Regarding Conformity?
One consequence of EPA's disapproval of a control strategy SIP is a
conformity freeze whereby affected metropolitan planning organizations
(MPOs) cannot make new conformity determinations on long range
transportation plans and transportation improvement programs (TIPs). If
we finalize the disapproval of the attainment demonstration SIP, a
conformity freeze will be in place as of the effective date of the
disapproval. (40 CFR 93.120(a)(2)) This means that no transportation
plan, TIP, or project not in the first four years of the currently
conforming transportation plan and TIP or that meet the requirements of
40 CFR 93.104(f) during a 12-month lapse grace period \4\ may be found
to conform until another attainment demonstration SIP is submitted and
the motor vehicle emissions budgets are found adequate or the
attainment demonstration is approved. In addition, if the highway
funding sanction is implemented, the conformity status of the
transportation plan and TIP will lapse on the date of implementation of
the highway sanctions. During a conformity lapse, only projects that
are exempt from transportation conformity (e.g., road resurfacing,
safety projects, reconstruction of bridges without adding travel lanes,
bicycle and pedestrian facilities), transportation control measures
that are in the approved SIP and project phases that were approved
prior to the start of the lapse can proceed during the lapse. No new
project-level approvals or conformity determinations can be made and no
new transportation plan or TIP may be found to conform until another
attainment demonstration SIP is submitted and the motor vehicle
emissions budget is found adequate.
---------------------------------------------------------------------------
\4\ Additional information on the implementation of the lapse
grace period can be found in the final transportation conformity
rule published on January 24, 2008. (73 FR 4423-4425)
---------------------------------------------------------------------------
VI. Proposed Action
EPA is proposing to disapprove Connecticut's attainment
demonstration for the New York-N. New Jersey-Long Island, NY-NJ-CT 8-
hour ozone moderate nonattainment area submitted to EPA on February 1,
2008. Connecticut's demonstration does not provide the level of
compelling evidence needed/required for EPA to have confidence that
this nonattainment area will attain the ozone standard by the June 2010
deadline. EPA is soliciting public comments on the issues discussed in
this proposal. These comments will be considered before taking final
action.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental
[[Page 21577]]
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 ``for State, local, or tribal governments or the private
sector.'' EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This action does not have federalism implications. It will 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, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
EPA is proposing to disapprove would not apply in Indian country
located in the State, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997).This proposed SIP disapproval under section 110 and subchapter I,
part D of the Clean Air Act will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapprove certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary
[[Page 21578]]
authority to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 28, 2009.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. E9-10660 Filed 5-7-09; 8:45 am]
BILLING CODE 6560-50-P