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, 21568-21578 [E9-10660]
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Federal Register / Vol. 74, No. 88 / Friday, May 8, 2009 / Proposed Rules
(c) Conditions for retroactive
induction. Retroactive induction into a
rehabilitation program may be
authorized for a past period under a
claim for vocational rehabilitation
benefits when all of the following
conditions are met:
(1) The past period is within—
(i) A period under § 21.40(c) during
which a servicemember was awaiting
discharge for disability; or
(ii) A period of eligibility under
§§ 21.41 through 21.44 or 38 U.S.C.
3103.
(2) The individual was entitled to
disability compensation under 38 U.S.C.
chapter 11 during the period or would
likely have been entitled to that
compensation but for active-duty
service.
(3) The individual met the criteria for
entitlement to vocational rehabilitation
benefits and services under 38 U.S.C.
chapter 31 in effect during the period.
(4) VA determines that the
individual’s training and other
rehabilitation services received during
the period were reasonably needed to
achieve the goals and objectives
identified for the individual and may be
included in the plan developed for the
individual (see §§ 21.80 through 21.88,
and §§ 21.92 through 21.98).
(5) VA has recouped any benefits that
it paid the individual for education or
training pursued under any VA
education program during any portion
of the period.
(6) An initial evaluation was
completed under § 21.50.
(7) A period of extended evaluation is
not needed to be able to determine the
reasonable feasibility of the
achievement of a vocational goal.
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(Authority: 38 U.S.C. 3102, 3103, 3108, 5113)
(d) Effective date for retroactive
induction. The effective date for
retroactive induction is the date when
all the entitlement conditions set forth
in paragraph (c) of this section are met,
and for a veteran (except as to a period
prior to discharge from active duty) in
no event before the effective date of a
VA rating under 38 U.S.C. chapter 11
establishing a qualifying level under
§ 21.40 of service-connected disability.
(Authority: 38 U.S.C. 5113)
[FR Doc. E9–10806 Filed 5–7–09; 8:45 am]
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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 YorkN. New Jersey-Long Island, NY-NJ-CT
8-Hour Ozone Nonattainment Area
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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 8hour 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: arnold.anne@epa.gov.
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
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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
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Federal Register / Vol. 74, No. 88 / Friday, May 8, 2009 / Proposed Rules
Protection, State Office Building, 79 Elm
Street, Hartford, CT 06106–1630. It has
also been posted on the Connecticut
DEP Web site at: https://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 Burkhart.Richard@epa.gov.
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 MultiState 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
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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
1 In 2008, EPA promulgated a more stringent 8hour 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 8hour standard promulgated in 1997.
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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 JerseyLong 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.
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 JerseyLong 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 preexisting 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
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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 8hour ozone standard for the Connecticut
portion of the New York-N. New JerseyLong 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
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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 MultiState 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
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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
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classified the New York-N. New JerseyLong 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 ozoneforming 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 highresolution grid covering the states in the
northeast ozone transport region,
including Connecticut.
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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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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 nonguideline 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
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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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.
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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
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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
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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 loadfollowing 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-
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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-NJCT 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
Danbury, CT ...............................................................................
Greenwich, CT ...........................................................................
Madison, CT ...............................................................................
Middletown, CT ..........................................................................
Stratford, CT ..............................................................................
Westport, CT ..............................................................................
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
2001–
2003
090011123
090010017
090093002
090070007
090013007
090019003
2002–
2004
0.096
0.100
0.102
0.098
0.102
0.097
2003–
2005
0.093
0.092
0.095
0.092
0.095
0.092
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
0.091
0.087
0.090
0.090
0.090
0.089
2004–
2006
0.092
0.087
0.088
0.089
0.088
0.087
2005–
2007
0.094
0.090
0.093
0.092
0.092
0.087
2006–
2008
0.088
0.089
0.088
0.088
0.088
0.087
Connecticut, New Jersey, and New York
for their respective portions of the New
York-N. New Jersey-Long Island, NY-NJCT 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 8hour Ozone Nonattainment Area.’’
TABLE 2—SUMMARY OF ESTIMATED EMISSIONS IN THE NEW YORK CITY NONATTAINMENT AREA FOR 2002, 2008, AND
2009
2002
Sector
VOC
(tpd)
2008
NOX
(tpd)
VOC
(tpd)
2009
%
rdxn
NOX
(tpd)
%
rdxn
VOC
(tpd)
%
rdxn
NOX
(tpd)
%
rdxn
93.4
788.9
468.1
471.1
358.9
109.9
808.9
378.2
78.0
701.6
263.9
352.3
16.5
11.1
43.6
25.2
263.5
105.9
415.9
316.6
26.6
3.6
48.6
16.3
76.6
684.0
246.0
337.0
18.0
13.3
47.4
28.5
263.6
105.4
383.9
307.7
26.6
4.1
52.5
18.6
Total ......................................
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Point .............................................
Area ..............................................
On-road ........................................
Non-road ......................................
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
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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
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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.
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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 °F or higher (an
average summer has 17 days ≥90 °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
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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
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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
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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-NJCT 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
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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
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21575
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
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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.
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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
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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
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)
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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.
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
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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-andof 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.
pwalker on PROD1PC71 with PROPOSALS
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
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17:31 May 07, 2009
Jkt 217001
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.
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21577
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 inand-of itself create any new
requirements. Accordingly, it does not
provide EPA with the discretionary
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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
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2008–0497, FRL–8901–3]
Approval and Promulgation of
Implementation Plans; New Jersey
Ozone Attainment Demonstration
pwalker on PROD1PC71 with PROPOSALS
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency (EPA) is proposing action on the
ozone attainment demonstration portion
of a comprehensive State
Implementation Plan revision submitted
by New Jersey to meet Clean Air Act
requirements for attaining the 8-hour
ozone national ambient air quality
standard. EPA is proposing to
disapprove New Jersey’s demonstration
of attainment of the 8-hour ozone
standard.
DATES: Comments must be received on
or before June 8, 2009.
ADDRESSES: Submit your comments,
identified by Docket Number EPA–R02–
OAR–2008–0497, by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• E-mail: Werner.Raymond@epa.gov.
• Fax: 212–637–3901
• Mail: Raymond Werner, Chief, Air
Programs Branch, Environmental
Protection Agency, Region 2 Office, 290
Broadway, 25th Floor, New York, New
York 10007–1866.
• Hand Delivery: Raymond Werner,
Chief, Air Programs Branch,
Environmental Protection Agency,
Region 2 Office, 290 Broadway, 25th
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17:31 May 07, 2009
Jkt 217001
Floor, New York, New York 10007–
1866. 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 Federal holidays.
Instructions: Direct your comments to
Docket No. EPA–R02–OAR–2008–0497.
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 information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. 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 email 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 or any form
of encryption, and be free of any defects
or viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region II Office, Air Programs Branch,
290 Broadway, 25th Floor, New York,
New York 10007–1866. EPA requests, if
at all possible, that you contact the
individual listed in the FOR FURTHER
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Fmt 4702
Sfmt 4702
INFORMATION CONTACT section to view
the hard copy of the docket. You may
view the hard copy of the docket
Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Robert Kelly (kelly.bob@epa.gov) Air
Programs Branch, Environmental
Protection Agency, 290 Broadway, 25th
Floor, New York, New York 10007–
1866, (212) 637–4249.
SUPPLEMENTARY INFORMATION:
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 MultiState Ozone Nonattainment Areas
III. What Was Included in New Jersey’s SIP
Submittals?
IV. EPA’s Review and Technical Information
A. Attainment Demonstration
1. What Are the Components of a Modeled
Attainment Demonstration?
2. What Were the Results of the State’s
Weight of Evidence Analysis?
a. EPA Requirements for the Weight of
Evidence Analysis
b. State’s Weight of Evidence Argument
and EPA’s Evaluation
c. Summary of Weight of Evidence
Discussion
3. What Is EPA’s Evaluation?
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. What Are EPA’s Conclusions?
VII. Statutory and Executive Order Reviews
I. What Action is EPA Proposing?
The Environmental Protection Agency
(EPA) has reviewed New Jersey’s
comprehensive State Implementation
Plan (SIP) revision for attaining the 0.08
ppm 8-hour ozone national ambient air
quality standards (NAAQS or
standard) 1 in the State of New Jersey’s
moderate nonattainment areas along
with other related Clean Air Act (Act)
requirements necessary to insure
attainment of the standard. The EPA is
proposing to disapprove New Jersey’s 8hour ozone attainment demonstration
because the EPA has determined that
the photochemical modeling does not
demonstrate attainment and the weight
of evidence analysis that New Jersey
uses to support the attainment
demonstration does not provide
1 Unless otherwise specifically noted in the
action, references to the 8-hour ozone standard are
to the 0.08 ppm ozone standard promulgated in
1997.
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]]>Agencies
[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Proposed Rules]
[Pages 21568-21578]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10660]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: arnold.anne@epa.gov.
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:
https://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 Burkhart.Richard@epa.gov.
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
[[Page 21571]]
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.
---------------------------------------------------------------------------
\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.)
---------------------------------------------------------------------------
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
[[Page 21572]]
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.
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\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)
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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 (
