Approval and Promulgation of Air Quality Implementation Plans; Connecticut; VOC Regulations and One-Hour Ozone Attainment Demonstration Shortfall

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Connecticut. This revision establishes requirements to reduce volatile organic compound (VOC) emissions from portable fuel containers, automotive refinishing operations, and gasoline dispensing facilities. The intended effect of this action is to approve these requirements into the Connecticut SIP. These control measures are needed to meet a portion of the shortfall in emission reduction identified in Connecticut's one-hour ozone attainment demonstration SIP. This action also approves these control measures, along with a previously approved control measure, as fulfilling the shortfall in emission reductions identified in Connecticut's one-hour ozone attainment demonstration SIP. EPA is taking this action in accordance with the Clean Air Act (CAA).

DATES:

This direct final rule will be effective October 30, 2006, unless EPA receives adverse comments by October 2, 2006. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-OAR-2005-CT-0001 by one of the following methods:

1. http://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: “EPA-R01-OAR-2005-CT-0001,” 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, excluding legal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-2005-CT-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://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” systems, 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 contact 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, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Richard P. Burkhart, Air Quality Planning, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Phone: 617-918-1664, Fax: (617) 918-0664, E-mail: burkhart.richard@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in the ADDRESSES section above, copies of the state submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Management, Department of Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106.

II. Rulemaking Information

This section is organized as follows:

A. What action is EPA taking?

B. What are the requirements of Connecticut's new regulations?

C. Why is EPA approving Connecticut's regulations?

D. What is the process for EPA to approve these SIP revisions?

III. Final Action

IV. Statutory and Executive Order Reviews

A. What action is EPA taking?

EPA is approving Connecticut's Section 22a-174-43, “Portable Fuel Container Spillage Control,” the subsections of Section 22a-174-3b, “Exemptions from Permitting for Construction and Operation of External Combustion Units, Automotive Refinishing Operations, Emergency Engines, Nonmettalic Mineral Processing Equipment and Surface Coating Operations' that apply to autobody refinishing operations and Section 22a-174-30, “Dispensing of Gasoline/Stage I and Stage II Vapor Recovery,” and incorporating these regulations into the Connecticut SIP. EPA is also approving these measures, along with Connecticut's previously approved municipal waste combuster rule, as meeting the shortfall emissions reduction identified by EPA in our previous approval of Connecticut's 1-hour ozone attainment demonstration SIP.

B. What are the requirements of Connecticut's new regulations?

Portable Fuel Containers

The Section 22a-174-43 Portable Fuel Containers rule applies to any person who sells, supplies, offers for sale, or manufactures for sale in Connecticut portable fuel containers or spouts or both for use in Connecticut. Connecticut's portable fuel container rule includes performance standards for portable fuel containers and spouts in order to ensure spill-proof systems. For example, the rule requires that portable fuel containers have an automatic shut-off that stops the fuel flow before the target fuel tank overflows. Connecticut's rule prohibits any person to sell, supply, offer for sale, or manufacture for sale in Connecticut, on or after May 1, 2004, any portable fuel container or spout that does not meet all of the specified performance standards. There is, however, a specified list of exemptions from the rule. For example, the rule does not apply to portable fuel containers with a nominal capacity less than or equal to one quart or to containers or spouts that have been granted an innovative products exemption by California Air Resources Board (CARB) or the New York Department of Environmental Conservation. The exemption for innovative products is considered reasonable, because in order to receive an innovative products exemption the CARB and New York rules require that the manufacturer demonstrate that the use of the product will result in emissions below the highest emitting container in its product category as determined from applicable testing. Connecticut's rule also includes an exemption for products that have received a variance pursuant to the variance provisions in New York's portable fuel container rule. This exemption is acceptable because few variances are expected to be granted. For example, the compliance date of New York's portable fuel container rule was January 1, 2003, and as of March 1, 2006 no variances have been granted by New York.

In addition, Connecticut's rule includes the appropriate testing and recordkeeping requirements to ensure compliance with the specified performance standards. Specifically, the rule requires the use of several test methods and procedures adopted by CARB. The portable fuel container rule is expected to achieve a creditable VOC reduction of at least 2.3 tons per summer day by 2007. The method used to calculate this reduction is shown in the Connecticut submittal and EPA agrees with the method.

More recently, EPA proposed new standards that would limit hydrocarbon emissions that evaporate from or permeate through gasoline cans (71 FR 15803, March 29, 2006). EPA's proposal starts with gasoline cans manufactured in 2009. The proposed standard would limit evaporation and permeation emissions from these cans to 0.3 grams of hydrocarbons per gallon per day. The Connecticut rule limits the permeation emissions from portable fuel containers to less than or equal to 0.4 grams of hydrocarbons per gallon per day. If, as proposed, the final EPA standard for permeation emissions from portable fuel containers is more stringent than the current state standard, the federal standard will supersede the state standard as of 2009.

Autobody Refinishing

Connecticut's Section 22a-174-3b, “Exemptions from Permitting for Construction and Operation of External Combustion Units, Automotive Refinishing Operations, Emergency Engines, Nonmettalic Mineral Processing Equipment and Surface Coating Operations,” allows owners or operators of these types of operations to construct and operate such a source without obtaining a general permit pursuant to Section 22a-174 or a permit pursuant to Section 22a-174-3a, provided that they comply with the applicable provisions of the Section 22a-174-3b regulation. Connecticut submitted to EPA as a SIP revision only those subsections of Section 22a-174-3b that apply to automotive refinishing operations.

EPA has evaluated the portion of Connecticut's Section 22a-174-3b that applies to automotive refinishing operations against applicable EPA guidance documents and the OTC model rule for this source category. An analysis of Connecticut's regulations is presented below.

EPA has issued control technique guidelines (CTGs) and, in some cases, national regulations for certain VOC source categories. A CTG is a document issued by EPA which establishes a “presumptive norm” for Reasonably Available Control Technology (RACT) for a specific VOC source category. EPA has issued a national rule for autobody refinishing. EPA has also issued an ACT for automobile refinishing. Similar to a CTG, an ACT (alternative control techniques) document contains information on emissions, control options, and costs that states can use in developing RACT rules. Unlike a CTG, however, the ACT document presents options only, and does not contain a recommendation on RACT.

In addition, the OTC (Ozone Transport Commission) has developed model rules for several VOC source categories, including mobile equipment repair and refinishing (MERR), and the OTC states, including Connecticut, have signed a memorandum of understanding (MOU) committing to adopt these model rules.

The coating limits in the OTC MERR model rule are the same as the limits included in EPA's national autobody refinishing rule. The OTC rule, however, applies to the person applying the coatings, whereas the national rule applies to manufacturers or importers that sell or distribute automobile refinish coatings. In addition, the OTC rule includes application equipment requirements, good housekeeping, pollution prevention, and training measures. These additional requirements are similar to those discussed in EPA's ACT document for automobile refinishing.

The portion of Connecticut's Section 22a-174-3b that applies to automotive refinishing operations establishes:

(a) A limit on the total amount of VOC-containing coatings or solvents of 2,000 gallons in any twelve month rolling period;

(b) Requirements that limit the type of application equipment utilized to high-volume low-pressure (HVLP) spray equipment, electrostatic application equipment, or other application methods with a guaranteed transfer efficiency of at least 65%;

(c) Cleaning standards for any application equipment; and

(d) Other work practice standards, such as record keeping, and the storing of coatings and solvents in closed containers.

VOC limits for mobile equipment repair and refinishing coatings are not included in Connecticut's revised SIP, but are in effect nationally under the Federal requirements at 40 CFR Part 59, Subpart B, National VOC Emissions Standards for Automobile Refinish Coatings, which were adopted by EPA in 1998. Connecticut's autobody regulations have similar requirements to those specified in the OTC model rule, which are also similar to those discussed in EPA's ACT document for autobody refinishing.

The new requirements for autobody refinishing in Connecticut are expected to achieve a creditable VOC reduction of at least 3.0 tons per summer day by May 2007. The method used to calculate this emission reduction is contained in the December 1, 2004 state submittal. EPA considers these emission reduction estimates, which are consistent with a report on VOC control measures, to be reasonable estimates.

Stage I/II Vapor Recovery

Connecticut revised the Section 22a-174-30, Stage I/II Vapor Recovery rule to include new requirements for PV (pressure/vacuum) vent valves and to require more frequent testing of the Stage II systems (3 years vs. 5 years). Compliance with the PV vent valve requirements is due by May 10, 2005, and the three year re-testing requirement begins November 15, 2004.

The revised Section 22a-174-30 Stage I/II Vapor Recovery Rule includes a testing requirement for the PV vent valve, but does not specify a particular test method. Instead, the regulation specifies a performance standard with a pressure range that any test method must be able to measure. See 22a-174-30(e)(1)(E). In addition, DEP submitted a fact sheet that clarifies what test method DEP expects to use to test PV vent valves. Specifically, the fact sheet includes the test procedures from the New Hampshire Department of Environmental Services “304—PV Vent Cap Test Procedure.” The fact sheet states that this test method is accepted in Connecticut, and also provides that CARB test procedures or other procedures approved by the Connecticut DEP are also acceptable.

These provisions leave DEP some discretion to approve alternative test methods without further EPA approval. Nevertheless, EPA believes the combination of testing provisions DEP has in place provide for an acceptable framework for determining an adequate test method for PV vent valves. First, any test method DEP might approve must be able to measure the performance standard required in the Stage I/II regulation. Any test method that cannot detect pressures accurately enough to measure within the ranges provided for in section 22a-174-30(e)(1)(E) would obviously not qualify under the regulation. Therefore, DEP's discretion in approving alternative test methods is circumscribed by this regulatory standard. Second, DEP has submitted a fact sheet explaining which test methods it finds acceptable. This fact sheet provides good evidence that DEP has selected reliable methods. EPA is approving this SIP with the understanding that the State will only use test methods of the quality identified in that fact sheet. Third, test methods for PV vent valves are not complicated procedures, and they do not present the multiple opportunities for technical judgment calls inherent in more involved test methods. Thus, EPA does not anticipate that DEP and EPA would find it difficult to agree on whether a test method is sufficiently accurate to measure the performance standard provided for in DEP's regulation. Finally, in the unlikely event that a facility uses a test method EPA deems unreliable, nothing in the SIP-approved regulation prevents EPA from requiring testing using an acceptable test method. The Stage I/II regulation neither specifies a test method nor specifically authorizes DEP to designate a test method that would be binding on EPA or any other party as the sole method for determining compliance with the PV vent valve requirement. The fact sheet DEP has submitted with the SIP is a statement of the test methods that DEP is prepared to accept, but it is not legally binding as a matter of state law, nor is it formally incorporated by reference into the SIP as a matter of federal law. Although EPA does not anticipate any disagreement over appropriate test methodology, the Agency can ultimately require the performance of the test method it deems appropriate to enforce this provision, because the SIP does not restrict EPA's choice of test methods.

The fact sheet also states that the PV vent testing must be conducted prior to dispensing gasoline for new stations and as part of the next regularly scheduled Stage II system test for existing facilities. In addition, the SIP submittal states that direct mailings were sent to testing companies and gasoline station owners informing them of the new requirements and the PV vent testing procedure.

The previous version of Section 22a-174-30 was approved into the Connecticut SIP. Therefore, the revised rule must meet the Section 110(l) anti-backsliding provisions of the Clean Air Act. The previous version of 22a-174-30 was approved as meeting the Section 182(b)(3) Stage II vapor recovery requirements of the Clean Air Act. The new rule includes the previous requirements approved into the SIP, along with the new PV vent valve and more frequent testing requirements discussed above. These new requirements are expected to achieve additional emissions reductions beyond those achieved by the previously approved rule. Therefore, the new Section 22a-174-30 meets the Clean Air Act anti-backsliding requirement. The new requirements for PV vent valves are expected to achieve a creditable VOC reduction of at least 1.4 tons per summer day by 2007. The method used to calculate this reduction is shown in the Connecticut submittal and EPA agrees with the method.

C. Why is EPA approving Connecticut's regulations?

EPA has evaluated Connecticut's regulations and has found that they are consistent with EPA guidance, and/or the Ozone Transport Commission model rules. These control measures are needed to meet a portion of the shortfall emissions reduction identified in Connecticut's 1-hour ozone attainment demonstration SIP (66 FR 63921, December 11, 2001). The specific requirements of Connecticut's regulations, the amount of VOC reductions expected, and EPA's evaluation of these requirements are detailed in a memo dated June 8, 2006, entitled “Technical Support Document—Connecticut—VOC Regulations and Shortfall Commitment” (TSD) and in the SIP submittal from the Connecticut DEP. The TSD and Connecticut's regulations are available in the docket supporting this action. The total emission reduction from these three VOC regulations will be at least 6.7 tons of VOC per summer day by 2007. These emission reductions, coupled with emission reductions from Connecticut's previously approved regulation on municipal waste combusters (66 FR 63311, December 6, 2001) which will result in an emission reduction of at least 1.3 tons of nitrogen oxides by 2007, fills the emission reduction shortfall identified in the 1-hour attainment plan for the 1-hour severe portion of Connecticut. This level of emission reduction, therefore, fulfills the commitment Connecticut made in its 1-hour attainment demonstration to achieve additional emission reductions within the state, to help bring about attainment for the now revoked 1-hour ozone standard. The commitment was for 0.5 tons per summer day of NO_X and 5.4 tons per summer day of VOC. These emission reductions will also help Connecticut to ultimately achieve the more stringent 8-hour ozone standard as well.

D. What is the process for EPA to approve these SIP revisions?

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This action will be effective October 30, 2006 without further notice unless the EPA receives adverse comments by October 2, 2006.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 30, 2006 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Final Action

EPA is approving Section 22a-174-43, “Portable Fuel Container Spillage Control,” the autobody refinishing requirements of Section 22a-174-3b, “Exemptions from Permitting for Construction and Operation of External Combustion Units, Automotive Refinishing Operations, Emergency Engines, Nonmettalic Mineral Processing Equipment and Surface Coating Operations,” and Connecticut's Section 22a-174-30, “Dispensing of Gasoline/Stage I and Stage II Vapor Recovery,” and incorporating these regulations into the Connecticut SIP. These three rules will achieve an emissions reduction of at least 6.7 tons of VOC per summer day by 2007. EPA is also approving these measures, along with Connecticut's previously approved municipal waste combuster rule, as fulfilling the commitment Connecticut made in its 1-hour attainment demonstration to adopt additional measures to address the emission reduction shortfall.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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 October 30, 2006. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Ozone
• Reporting and

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

PART 52—[AMENDED]

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

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

Subpart H—Connecticut

2. Section 52.370 is amended by adding paragraph (c)(95) to read as follows:

3. Section 52.377 is amended by adding paragraph (e) to read as follows:

4. In § 52.385, Table 52.385 is amended by adding three new entries: a new state citation 22a-174-3b; a new entry to existing state citation 22a-174-30; and a new state citation 22a-174-43 to read as follows: