Air quality implementation plans; approval and promulgation; various States: Rhode Island,

[Federal Register: April 7, 2003 (Volume 68, Number 66)]

[Rules and Regulations]

[Page 16721-16724]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr07ap03-6]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[A-1-FRL-7476-7]

Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; One-Hour Ozone Attainment Demonstration for the Rhode Island Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This action approves Rhode Island's one-hour ozone attainment demonstration for the Rhode Island serious ozone nonattainment area, submitted by the Rhode Island Department of Environmental Management (DEM) on March 24, 2003. This action is based on the requirements of the Clean Air Act as amended in 1990, related to one-hour ozone attainment demonstrations. In addition, EPA is establishing an attainment date of November 15, 2007, for the area, and is approving the contingency measures SIP, the 2007 motor vehicle emissions

[[Page 16722]]

budgets, and the reasonably available control measures analysis also submitted by Rhode Island on March 24, 2003. A notice of proposed rulemaking was published for this action on February 14, 2003. EPA received no comments on that proposal.

EFFECTIVE DATE: This rule will become effective on May 7, 2003.

ADDRESSES: Copies of the documents relevant to this action are available for public inspection by appointment weekdays from 9 a.m. to 4 p.m., at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA-New England, One Congress Street, 11th floor, Boston, MA; and the Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, Rhode Island 02908-5767. Please telephone in advance before visiting.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, (617) 918-1664.

SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows:

1. What Rhode Island SIP revision Is the topic of this action? II. What previous action have we taken on this SIP revision? III. What motor vehicle emissions budgets are we approving? IV. EPA Action V. Administrative Requirements

1. What Rhode Island SIP Revision Is the Topic of This Action?

   The Rhode Island DEM submitted a one-hour ozone attainment demonstration SIP on March 24, 2003, for the Rhode Island serious ozone nonattainment area. The SIP revision was subject to public notice and comment by the State, and a public hearing was held on February 27, 2003. The attainment demonstration included a reasonably available control measures (RACM) analysis, contingency measures, and 2007 motor vehicle emissions budgets for the Rhode Island serious ozone nonattainment area. Rhode Island requested an attainment date for this area of November 15, 2007, and included a demonstration of how its plan will reach attainment as expeditiously as practicable by that date. The final plan adopted by Rhode Island is not substantially different than the proposed submission provided to EPA on January 27, 2003.

2. What Previous Action Have We Taken on This SIP Revision?

   EPA published a notice of proposed rulemaking for the Rhode Island attainment demonstration SIP on February 14, 2003 (68 FR 7476). In that action, EPA reviewed the proposed Rhode Island attainment plan which includes a RACM analysis, contingency measures, and 2007 motor vehicle emissions budgets with an attainment date of November 15, 2007, and proposed to approve it if Rhode Island did not make substantial revisions during the state review process. If Rhode Island did make substantial revisions, EPA indicated it would issue a new proposed rule. The notice of proposed rulemaking states EPA's conclusions regarding the approvability of the various portions of the SIP, which will not be repeated here. Readers are directed to the proposal for further information.

3. What Motor Vehicle Emissions Budgets Are We Approving?

   On January 27, 2003, Rhode Island submitted proposed motor vehicle emissions budgets for volatile organic compounds (VOC's) and nitrogen oxides (NOX) for the 2007 attainment year for the Rhode Island serious ozone nonattainment area. Under EPA's policy \1\ for reviewing the adequacy of motor vehicle emissions budget submissions, these budgets were posted on the EPA adequacy Web site for public comment on February 19, 2003, at www.epa.gov/otaq/transp/conform/currsips.htm , and a public comment period was open until March 17, 2003. The SIP was also made available electronically on the Rhode Island DEM Web site at www.state.ri.us/dem/programs/benviron/air/attainpn.htm. EPA received no comments on these budgets during the adequacy comment period, and EPA also received no comments on our February 14, 2003, proposed approval of these budgets.

   \1\ Memorandum from G. MacGregor, dated May 14, 1999, ``Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.''

   The Rhode Island DEM did, however, receive comment during their State comment period on the proposed motor vehicle emissions budgets. As part of their attainment demonstration, Rhode Island calculated on- road mobile source emissions for 1999, 2002 and 2007. When apportioning vehicle miles traveled (VMT) for 1999 among the light-duty gasoline vehicle and light-duty gasoline truck categories, Rhode Island utilized vehicle registration data for such vehicles from the Federal Highway Administration's Highway Statistics Series.\2\ When apportioning VMT for 2002 and 2007, Rhode Island made further adjustments based on MOBILE6 default information to reflect the change in VMT mix that occurs over time due to increased sales of vehicles (e.g., minivans and sport utility vehicles) in the light-duty gasoline truck category.

   \2\ Data obtained from the Federal Highway Administration's ``Highway Statistics 2000;'' tables MV-1 and MV-9; see http://www.fhwa.dot.gov/ohim/hs00/mv.htm .

   However, a commenter to the Rhode Island DEM noted an error in the methodology related to the vehicle registration data that were used. Some of the light-duty trucks reflected in the vehicle registration data were omitted in the reapportionment calculation and thus the percent of VMT attributed to light-duty gasoline vehicles and light- duty gasoline trucks were slightly off for each of the three years analyzed. Rhode Island DEM agreed that this technical error should be corrected and revised the on-road mobile source emission estimates for 1999, 2002 and 2007. In their submission dated March 24, 2003, Rhode Island includes revised mobile source budgets for 2007. These budgets properly reflect the percentage of light-duty gasoline trucks expected in the vehicle fleet mix in 2007. The attainment year motor vehicle emissions budgets established by this plan that we are approving are contained in Table 1 below.

   Table 1.--2007 Emissions Budgets for On-Road Mobile Sources in Tons Per Summer Day (tpsd)

   2007 VOC 2007 NOX Area

   budget budget

   Rhode Island..................................

   30.68

   33.97

   These revised budgets represent an increase of only approximately one percent as compared with the budgets that were proposed for approval on February 14, 2003. This minimal change in the motor vehicle emissions budgets does not affect the reasoning behind our February 14, 2003, proposed approval of Rhode Island's proposed attainment demonstration submitted on January 27, 2003, and EPA does not consider it to be a substantial change. Further, EPA finds that there is good cause pursuant to 5 U.S.C. 553(b)(3)(B) that publishing an additional notice of proposed rulemaking to take comment on this change would be impracticable, unnecessary, and contrary to the public interest. EPA is under court order to promulgate a Federal implementation plan if it cannot approve Rhode Island's attainment demonstration and its attendant motor vehicle emissions budgets by March 31, 2003. The recent submission of this change, less than a week before that deadline, makes it impossible to take comment on the change in an orderly process prior to the

   [[Page 16723]]

   court's deadline for our action. Further opportunity for comment is also unnecessary because the substance of the issue concerning the corrected budgets was thoroughly aired in the State's public participation process in a time frame virtually contemporaneous with EPA's rulemaking on this attainment demonstration. It appears that any members of the public who were interested in this issue had ample opportunity to address it in the State's process, and it would be simply redundant for EPA to offer an essentially identical opportunity to ventilate the same question a few weeks after the State had done so. Finally, it is contrary to the public interest to delay EPA's approval of these 2007 budgets, which substantially reduce the level of motor vehicle emissions allowed under Rhode Island's SIP when compared with the currently approved motor vehicle emissions budgets. While the adjustment described above increased the size of the 2007 budgets very slightly compared with Rhode Island's proposal, the overall rate of decrease in the budgets over time remains essentially unchanged and, most importantly, remains consistent with Rhode Island's attainment demonstration. For these combined reasons, EPA finds good cause to dispense with further notice and public procedure concerning this minor change in the 2007 budgets.

   Therefore, today EPA is approving these motor vehicle emissions budgets for the State of Rhode Island for 2007 into the SIP. EPA is approving these 2007 motor vehicle emissions budgets because they are consistent with the control measures in the SIP, and the SIP as a whole demonstrates attainment of the 1-hour ozone standard. The approved 2007 motor vehicle emissions budgets would apply in all future conformity determinations for an analysis year of 2007 and later. Note that a conformity determination with an analysis year between the present and 2006 would use the year 1999 motor vehicle emissions budgets of 41.57 tons per summer day of VOC and 46.40 tons per summer day of NOXestablished in the approved post-1996 rate-of-progress plan for the Rhode Island serious ozone nonattainment area. 66 FR 30811 (June 8, 2001). However, at this time there is no analysis year required prior to 2007.

4. EPA Action

   EPA is approving the ground-level one-hour ozone attainment demonstration SIP for the Rhode Island serious ozone nonattainment area. EPA is also approving the attainment date for this area as November 15, 2007. EPA also approves the contingency measures, the RACM analysis, and the 2007 volatile organic compound and nitrogen oxide motor vehicle emissions budgets for the Rhode Island serious ozone nonattainment area for use in transportation conformity.

5. Administrative Requirements

   Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

   This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it is not economically significant.

   In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

   The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 6, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

   List of Subjects in 40 CFR Part 52

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

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   Dated: March 27, 2003. Robert W. Varney, Regional Administrator, EPA--New England.

   0 Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

   PART 52--[AMENDED]

   0 1. The authority citation for part 52 continues to read as follows:

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

   Subpart OO--Rhode Island

   0 2. Section 52.2076 is amended by revising the table to read as follows:

   Sec. 52.2076 Attainment of dates for national standards.

   * * * * *

   Pollutant

   Air quality control region

   SO

   PM10NO2CO

   O3 Primary Secondary

   Rhode Island portion of AQCR 120 (Entire

   (a)

   (b)

   (a)

   (a)

   (a)

   (c) State of Rhode Island).................

   aAir quality levels presently better than primary standards or area is unclassifiable. bAir quality levels presently better than secondary standards or area is unclassifiable. cNovember 15, 2007.

   0 3. Section 52.2088 is amended by designating the existing text as paragraph (a) and by adding paragraph (b) to read as follows:

   Sec. 52.2088 Control strategy: Ozone.

   * * * * *

   (b) Approval--Revisions to the state implementation plan submitted by the Rhode Island Department of Environmental Management on March 24, 2003. The revisions are for the purpose of satisfying the one-hour ozone attainment demonstration requirements of section 182(c)(2)(A) of the Clean Air Act, for the Rhode Island serious ozone nonattainment area. The revision establishes a one-hour attainment date of November 15, 2007 for the Rhode Island serious ozone nonattainment area, and approves the contingency measures for purposes of attainment. This revision establishes motor vehicle emissions budgets for 2007 of 30.68 tons per day of volatile organic compounds and 33.97 tons per day of nitrogen oxides to be used in transportation conformity in the Rhode Island serious ozone nonattainment area. Rhode Island also commits to conduct a mid-course review to assess modeling and monitoring progress achieved towards the goal of attainment by 2007, and to submit the results to EPA by December 31, 2004.

   [FR Doc. 03-8254 Filed 4-4-03; 8:45 am]

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