
[Federal Register: May 8, 2009 (Volume 74, Number 88)]
[Proposed Rules]               
[Page 21568-21578]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my09-15]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2008-0117, FRL-8901-2]

 
Disapproval of Air Quality Implementation Plans; Connecticut; 
Attainment Demonstration for the Connecticut Portion of the New York-N. 
New Jersey-Long Island, NY-NJ-CT 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing action on the 
ozone attainment demonstration portion of a comprehensive State 
Implementation Plan (SIP) revision submitted by Connecticut to meet 
Clean Air Act (CAA or Act) requirements for attaining the 8-hour ozone 
national ambient air quality standard. EPA is proposing to disapprove 
Connecticut's demonstration of attainment of the 1997 8-hour ozone 
standard for the Connecticut portion of the New York-N. New Jersey-Long 
Island, NY-NJ-CT 8-hour ozone nonattainment area (New York City ozone 
nonattainment area).

DATES: Written comments must be received on or before June 8, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2008-0117, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: 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: 
http://www.ct.gov/dep/cwp/view.asp?a=2684&q=385886&depNav_GID=1619.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality 
Planning Unit, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 
02114-2023, telephone number (617) 918-1664, fax number (617) 918-0664, 
e-mail 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.
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    \1\ In 2008, EPA promulgated a more stringent 8-hour standard of 
0.075 ppm. (See 73 FR 16435 (March 27, 2008).) All references to the 
8-hour ozone standard in this rulemaking refer to the 8-hour 
standard promulgated in 1997.
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    EPA's analysis and findings are discussed in this proposed 
rulemaking. Additional technical support memoranda for this proposal 
are available on line at www.regulations.gov, Docket No. EPA-R01-OAR-
2008-0117. Specifically, the docket contains the following:
    1. The February 1, 2008 State Implementation Plan Revision 
Regarding Attainment of the 8-Hour Ozone Standard in Connecticut.
    2. An EPA memorandum, dated December 23, 2008, from Bob McConnell, 
entitled, ``Emissions Trends in the New York-N. New Jersey-Long Island, 
NY-NJ-CT 8-hour Ozone Nonattainment Area.''
    3. An EPA memorandum, dated January 7, 2009, from Anne McWilliams, 
entitled, ``Air Quality Trends in the New York-N. New Jersey-Long 
Island, NY-NJ-CT 8-hour Ozone Nonattainment Area.''

II. Background Information

A. History and Time Frame for the State's Attainment Demonstration SIP

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 ppm averaged over an 8-hour time frame. EPA set the 8-hour 
ozone standard based on scientific evidence demonstrating that ozone 
causes adverse health effects at lower ozone concentrations and over 
longer periods of time than was understood when the pre-existing 1-hour 
ozone standard was set. EPA determined that the 8-hour standard would 
be more protective of human health, especially with regard to children 
and adults who are active outdoors, and individuals with a pre-existing 
respiratory disease, such as asthma.
    On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 8-hour ozone standard. These designations became effective on June 
15, 2004. In addition, EPA promulgated its Phase 1 Rule for 
implementation of the 8-hour standard, which provided how areas 
designated nonattainment for the 8-hour ozone standard would be 
classified. (See April 30, 2004 (69 FR 23951).) The entire state of 
Connecticut is designated nonattainment, divided between two moderate 
ozone nonattainment areas, the New York-N. New Jersey-Long Island, NY-
NJ-CT nonattainment area, and the Greater Connecticut nonattainment 
area. The Connecticut portion of the New York City ozone nonattainment 
area consists of the following Connecticut counties: Fairfield; New 
Haven; and Middlesex. The Greater Connecticut area covers the rest of 
the state. Today's proposed disapproval is only for the Connecticut 
portion of the New York City ozone nonattainment area. We will propose 
action on the ozone attainment demonstration for the Greater 
Connecticut nonattainment area in a separate rulemaking.
    The designations referenced above triggered the Act's requirements 
under section 182(b) for moderate nonattainment areas, including a 
requirement to submit an attainment demonstration. EPA's Phase 2 8-hour 
ozone implementation rule (Phase 2 Rule), published on Nov. 29, 2005 
(70 FR 71612), specifies that states must submit attainment 
demonstrations for their nonattainment areas to the EPA by no later 
than three years from the effective date of designation, that is, by 
June 15, 2007. (See 40 CFR 51.908(a).)

B. Moderate Area Requirements

    On November 29, 2005, EPA published the Phase 2 Implementation rule 
which addresses the control obligations that apply to areas designated 
nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and 
Phase 2 Rules outline the SIP requirements and deadlines for various 
requirements in areas designated as moderate nonattainment. For such 
areas, modeling and attainment demonstrations were due by June 15, 
2007, along with reasonable further progress plans, reasonably 
available control measures, motor vehicle emissions budgets (MVEBs) and 
contingency measures (40 CFR 51.908(a), and (c), 51.910, and 51.912). 
Today's action addresses Connecticut's demonstration of attainment of 
the 8-hour ozone standard for the Connecticut portion of the New York-
N. New Jersey-Long Island, NY-NJ-CT nonattainment area, which for 
moderate areas is to be attained by June 2010. In order to demonstrate 
attainment by June 2010, the area must adopt and implement all controls 
necessary for attainment by the

[[Page 21570]]

beginning of the 2009 ozone season and demonstrate that the level of 
the standard will be met during the 2009 ozone season.

C. Clean Air Act Requirement for Multi-State Ozone Nonattainment Areas

    Section 182(j) of the Clean Air Act requires each state within a 
multi-state ozone nonattainment area to specifically use photochemical 
grid modeling and take all reasonable steps to coordinate, 
substantively and procedurally, the revisions and implementation of 
State implementation plans applicable to the nonattainment area 
concerned. Under this subsection of the Clean Air Act, EPA may not 
approve any SIP revision for a State that fails to comply with these 
requirements.

III. What is included in Connecticut's SIP submittal?

    After completing the appropriate public notice and comment 
procedures, Connecticut made a submittal to address the Act's 8-hour 
ozone moderate nonattainment area requirements identified in Section 
II.B. On February 1, 2008, Connecticut submitted a comprehensive 8-hour 
ozone SIP for the Connecticut portion of the New York City ozone 
nonattainment area. It included an attainment demonstration, a 
reasonable further progress (RFP) plan, a reasonably available control 
measures (RACM) analysis, contingency measures, and on-road MVEBs for 
2008, 2009, and 2012.
    Only the attainment demonstration portion of the SIP submittal is 
evaluated in this proposal. EPA will take action on the other portions 
of Connecticut's February 1, 2008 SIP submittal in a separate, 
forthcoming Federal Register.

IV. EPA's Review and Technical Information

A. What Are the Components of an Attainment Demonstration?

    Section 110(a)(2)(k) of the Clean Air Act requires states to 
prepare air quality modeling to show how they will meet ambient air 
quality standards. EPA determined that states must use photochemical 
grid modeling, or any other analytical method determined by the 
Administrator to be at least as effective, to demonstrate attainment of 
the ozone health-based standard in areas classified as `moderate' or 
above, and to do so by the required attainment date. (See 40 CFR 
51.908(c); and Section 182(j) of the CAA.) In 40 CFR 51.903, EPA 
specified how areas would be classified with regard to the eight-hour 
ozone standard set by EPA in 1997. EPA followed these procedures and 
classified the New York-N. New Jersey-Long Island, NY-NJ-CT ozone 
nonattainment area as moderate (69 FR 23858). Since the attainment date 
is June 2010 for moderate areas, these areas must achieve emission 
reductions by the beginning of the ozone season of 2009 in order for 
ozone concentrations to be reduced, and meet the level of the standard 
during the last complete ozone season before the 2010 deadline. (See 40 
CFR 51.908(d).)
    EPA's photochemical modeling guidance is found at Guidance on the 
Use of Models and Other Analyses for Demonstrating Attainment of Air 
Quality Goals for Ozone, PM2.5, and Regional Haze, EPA-454/B-07-002, 
April 2007. The photochemical modeling guidance is divided into two 
parts. One part describes how to use a photochemical grid model for 
ozone to assess whether an area will come into attainment of the air 
quality standard. A second part describes how the user should perform 
supplemental analyses, using various analytical methods, to determine 
if the model over predicts, under predicts, or accurately predicts the 
air quality improvement projected to occur by the attainment date. The 
guidance indicates that states should review these supplemental 
analyses, in combination with the modeling analysis, in a ``weight of 
evidence'' assessment to determine whether each area is likely to 
achieve timely attainment.
    Connecticut's SIP submittal addresses each of the elements of a 
modeling attainment demonstration. The plan explains how on warm, sunny 
days, winds at the surface and aloft move emissions from sources of 
ozone-forming chemicals within and outside Connecticut to create high 
ozone concentrations in Connecticut. In addition, emissions from large 
out of state combustion sources are transported by upper-level winds to 
Connecticut, adding to the ozone formed locally.
    The Ozone Transport Commission's (OTC's) Modeling Committee 
developed a protocol for modeling the ozone problem in the northeastern 
United States. The OTC Modeling Committee coordinated preparing and 
running the photochemical grid model. It chose the Community Multi-
scale Air Quality Model (CMAQ) as the photochemical grid model of 
choice. EPA concurs that this model is appropriate for modeling the 
formation and distribution of ozone. The model domain covered almost 
all of the eastern United States, with a high-resolution grid covering 
the states in the northeast ozone transport region, including 
Connecticut.
    The OTC Modeling Committee used weather data for the entire 2002 
ozone season in the CMAQ. The year 2002 was the base year for the 
attainment plans and the year of the emission inventory used in the 
base year modeling. Using a full ozone season covered many different 
weather conditions when ozone episodes occur and exceeds EPA's 
recommendations for episode selection. The OTC Modeling Committee used 
MM5, a weather forecast model, to provide weather conditions for the 
photochemical grid model. Details about how the states used the MM5 
model is in Appendix 8 of Connecticut's SIP.
    States across the eastern United States provided emissions 
information from their sources to be used in the model. The Mid 
Atlantic Regional Air Management Association (MARAMA) collected and 
quality assured the states' emissions data and processed these data for 
use by the photochemical grid model. The states also included the 
control measures that were already adopted, as well as the control 
measures that the states are committing to adopt from a list of 
``Beyond On the Way'' (BOTW) control measures. The lists of control 
measures provided by the states to be included in the modeling are 
summarized in Connecticut's submittal in Appendix 4.
    The performance of the CMAQ photochemical grid model in predicting 
ozone, and the chemicals that form ozone, met EPA's guidelines for 
model performance. The model outputs are generally consistent with the 
day-to-day patterns of observed data, with low bias and error. The OTC 
Modeling Committee noted that the modeling system tends to over predict 
low concentrations and slightly under predict peak concentrations.
    For the attainment test, the state used the results from the 
photochemical grid model in a relative sense, as recommended by EPA's 
photochemical modeling guidance, by calculating the difference from 
ozone predicted in 2002 to ozone predicted with the emission controls 
Connecticut and other states planned to have in place in 2009. Details 
can be found in the state's submittal in Section 8.

B. What Are the Results of the Connecticut's Attainment Demonstration 
and Weight of Evidence Analysis?

    According to Table 8.4.4.1 in the Connecticut SIP submittal 
entitled ``CMAQ Modeling Results for Connecticut for 2009 and 2012,'' 
the basic photochemical grid modeling used by Connecticut predicts that 
the

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maximum 2009 design value \2\ in the New York City ozone nonattainment 
area will be 87 parts per billion (ppb). Thus, the photochemical model 
predicts Connecticut will not reach the 84 ppb concentration level that 
marks attainment of the ozone standard, by the 2009 ozone season. Table 
8.4.4.1 does, however, show that attainment is predicted by 2012, with 
a maximum predicted design value of 83 ppb.
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    \2\ Under EPA regulations at 40 CFR Part 50, the 8-hour ozone 
standard is attained when the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentrations at an 
ozone monitor is less than or equal to 0.08 parts per million (ppm) 
(i.e., 0.084 ppm, based on the rounding convention in 40 CFR Part 
50, Appendix I). This 3-year average is referred to as the design 
value. When the design value is less than or equal to 0.084 ppm (84 
parts per billion (ppb)) at each monitor within the area, then the 
area is meeting the 1997 ozone NAAQS. (See 69 FR 23857 (April 30, 
2004) for further information.)
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1. EPA's Requirements
    EPA's photochemical modeling guidance strongly recommends states 
complement the photochemical air quality modeling in situations where 
modeling predicts the area to be close to (within several parts ppb of) 
the 84 ppb ozone standard. Connecticut did perform additional analyses 
to bolster their attainment analysis. EPA can accept results of a 
weight of evidence determination to supplement the attainment 
demonstration; however, the greater the difference between the ozone 
standard and the photochemical modeling predictions, the more 
compelling the additional evidence produced by these additional 
analyses needs to be. In its photochemical modeling guidance, EPA notes 
that, if the concentration predicted by the photochemical model is 88 
ppb or higher, it is far less likely that the more qualitative 
arguments made in a weight of evidence determination can be 
sufficiently convincing to conclude that the ozone standard will be 
attained. In Connecticut's case, the submitted photochemical model 
prediction of 87 ppb in the New York City ozone nonattainment area does 
not exceed 88 ppb. Connecticut, however, used non-guideline methods in 
its analysis. As shown below, if EPA guidance is followed, the design 
value for the Connecticut portion of the New York City ozone 
nonattainment area is predicted to be 90 ppb at the Stratford, 
Connecticut monitor at the end of the 2009 ozone season. This value is 
greater than 88 ppb, the upper range for a normal weight of evidence 
analysis. Thus, if 90 ppb is the appropriate level based on the 
modeling, the additional evidence needed to show that this area will 
actually attain the ozone standard, must be very compelling for EPA to 
approve the attainment demonstration.
2. EPA's Analysis
    The photochemical modeling results, used according to EPA's 
guidelines, predict the New York City ozone nonattainment area will not 
attain by 2009. Connecticut's SIP deviates from the EPA guideline 
methods to adjust for perceived flaws in the photochemical grid model 
and to account for ozone reductions that may be produced by additional 
measures not included in the model. Connecticut supports their 
alternative analyses using data and other research to make the case 
that the New York City ozone nonattainment area may attain the ozone 
standard by the 2009 ozone season.
    EPA has carefully reviewed Connecticut's attainment demonstration 
including their supplementary data and research. EPA attempted to 
determine if the additional information provided by Connecticut is an 
acceptable supplement to the photochemical grid modeling and can be 
approved by EPA to meet the Clean Air Act requirement as ``* * * any 
other analytical method determined * * * to be at least as effective'' 
to supplement the photochemical grid modeling (40 CFR 51.908). EPA has 
evaluated the information provided by the State and other information 
relevant to whether or not this ozone nonattainment area will attain 
the ozone standard by 2009 and concludes that this information does not 
demonstrate that Connecticut will attain the ozone standard by 2009.
    EPA's review shows that Connecticut's attainment demonstration uses 
a method for determining the baseline 2002 ozone design value that is 
not consistent with EPA's modeling guidance. Connecticut uses a linear 
average of five fourth highest ozone values for each monitor in the 
nonattainment area for the years 2000-2004. This results in a baseline 
design value at the Stratford, Connecticut ozone monitor of 95.4 ppb. 
EPA's modeling guidance recommends using an average of the three years 
of design value centered on 2002, which creates a weighted five-year 
average. While Connecticut's SIP notes that EPA's method of providing a 
weighted average baseline value weights the base year of 2002 more 
heavily than other years, EPA intended this, so that the resulting 
value was influenced the most by the ozone data from the base year of 
the emission inventory. Using the EPA's modeling guidance method yields 
a baseline design value of 98.3 ppb at that same monitor.
    The straight five-year average method used by Connecticut, while 
centered on 2002, is skewed by giving 2004 as much influence as other 
years. The ozone data from 2004 includes the effects of reductions made 
between the base year 2002 and the attainment year of 2009, when a 
major reduction in nitrogen oxides (NOX) occurred. Since 
these emission reductions are accounted for in the photochemical grid 
modeling, we believe it is inappropriate to also consider them in 
determining the baseline design value. Specifically, EPA's 
NOX SIP Call and NOX Budget Trading Program 
produced significant reductions before the 2004 ozone season. The 
summer of 2004 was also a cooler than normal summer, possibly biasing 
the baseline design value further downward toward attainment. In an 
unweighted five-year average, 2004 has as much influence on the result 
as each of the other four years, so it provides a significant bias 
toward attainment. Selecting only a method that is lower than the 
recommended method is not a balanced use of the weight of evidence 
analysis. EPA does not find Connecticut's selected method of adjusting 
the baseline design value to be sufficiently justified and cannot 
accept it as a supplemental method of demonstrating attainment.
    Using the baseline design value for the Stratford site of 98.3 ppb 
(derived using EPA's recommended method), and the 0.919 relative 
reduction factor calculated for this monitoring location yields a 2009 
design value of 90 ppb. This is outside the upper bound of 88 ppb for a 
simple weight of evidence analysis, and significantly above the 84 ppb 
concentration used as the benchmark for attaining the ozone air quality 
standard. EPA does not rule out the use of alternative methods even 
when the photochemical grid modeling results are far from attaining the 
standard, but EPA's modeling guidance notes that more qualitative 
results are less likely to support a conclusion differing from the 
outcome of the modeled attainment test. The guidance notes that, in 
most cases, considerable amounts of precursor control (e.g., 20-25 
percent or more, which are huge reductions) would be needed to lower 
projected ozone design values even by 3 ppb.
    In Connecticut's weight of evidence analysis, they include a 
variety of analyses to support their conclusion ``that there is a 
credible case for attainment throughout all of Southwest Connecticut by 
the end of the 2009 ozone season.'' Connecticut's weight of evidence 
analysis (Section 8.5 of their

[[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.
---------------------------------------------------------------------------

    \4\ Additional information on the implementation of the lapse 
grace period can be found in the final transportation conformity 
rule published on January 24, 2008. (73 FR 4423-4425)
---------------------------------------------------------------------------

VI. Proposed Action

    EPA is proposing to disapprove Connecticut's attainment 
demonstration for the New York-N. New Jersey-Long Island, NY-NJ-CT 8-
hour ozone moderate nonattainment area submitted to EPA on February 1, 
2008. Connecticut's demonstration does not provide the level of 
compelling evidence needed/required for EPA to have confidence that 
this nonattainment area will attain the ozone standard by the June 2010 
deadline. EPA is soliciting public comments on the issues discussed in 
this proposal. These comments will be considered before taking final 
action.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental

[[Page 21577]]

jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 ``for State, local, or tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the State, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997).This proposed SIP disapproval under section 110 and subchapter I, 
part D of the Clean Air Act will not in-and-of itself create any new 
regulations but simply disapproves certain State requirements for 
inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
disapprove certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary

[[Page 21578]]

authority to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: April 28, 2009.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. E9-10660 Filed 5-7-09; 8:45 am]

BILLING CODE 6560-50-P
