Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Post-1996 Rate of Progress Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This revision establishes a post-1996 rate of progress (ROP) emission reduction plan for the Providence serious ozone nonattainment area in Rhode Island. The intended effect of this action is to approve this SIP revision as meeting the requirements of the Clean Air Act.

DATES:

This direct final rule is effective on August 7, 2001 without further notice, unless EPA receives adverse comment by July 9, 2001. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Comments may be mailed to David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. Environmental Protection Agency, EPA-New England, One Congress Street, Suite 1100, Boston, MA 02114-2023. Copies of the documents relevant to this action are available for public inspection during normal business hours, by appointment at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA-New England, One Congress Street, 11th floor, Boston, MA, and at the Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, RI 02908-5767.

FOR FURTHER INFORMATION CONTACT:

Robert McConnell, (617) 918-1046.

SUPPLEMENTARY INFORMATION:

On September 21, 1998, the State of Rhode Island submitted a formal revision to its SIP. The SIP revision consisted of a post-1996 rate-of-progress (ROP) plan for the Providence serious ozone nonattainment area, which encompasses the entire geographic area of the State.

This Supplementary Information section is organized as follows:

A. What action is EPA taking today?

B. Why was Rhode Island required to reduce emissions of ozone forming pollutants?

C. Which specific air pollutants are targeted by this emission reduction plan?

D. What are the sources of these pollutants?

E. What harmful effects can these pollutants produce?

F. Should I be concerned if I live near an industry that emits a significant amount of these pollutants?

G. To what degree does Rhode Island's plan reduce emissions?

H. How will Rhode Island achieve these emission reductions?

I. Have these emission reductions improved air quality in Rhode Island?

J. Has Rhode Island met its contingency measure obligation?

K. Are conformity budgets contained in the plan?

A. What action is EPA taking today?

EPA is approving a post-1996 rate-of-progress (ROP) emission reduction plan submitted by the State of Rhode Island for the Providence serious ozone nonattainment area as a revision to the State's SIP.

The post-1996 ROP plan documents how Rhode Island complied with the provisions of section 182 (c)(2)(B) of the Federal Clean Air Act (the Act). This section of the Act requires states containing certain ozone nonattainment areas develop strategies to reduce emissions of the pollutants that react to form ground level ozone.

B. Why was Rhode Island Required to Reduce Emissions of Ozone Forming Pollutants?

Rhode Island was required to develop a plan to reduce ozone precursor emissions because it contains an ozone nonattainment area. A final rule published by EPA on November 6, 1991 (56 FR 56694) designated the entire State as nonattainment for ozone, and classified the area as serious. The area was named the Providence area.

Section 182 (c)(2)(B) of the Act requires that serious, severe, and extreme ozone nonattainment areas develop ROP plans to reduce ozone forming pollutant emissions by 3 percent a year, averaged over each consecutive 3 year period beginning in 1996, until the area reaches its attainment date. The first set of emission reductions are required to occur between November 1996 and November 1999, and are referred to as post-1996 ROP plan reductions, which will yield an overall reduction of nine percent of the combined 1990 VOC and NO_X emission levels.

C. Which Specific Air Pollutants Are Targeted by This Emission Reduction Plan?

The State's post-1996 plan is geared towards reducing emissions of volatile organic compounds (VOCs) and nitrogen oxides ( NO_X). These compounds react in the presence of heat and sunlight to form ozone, which is a primary ingredient of smog.

D. What Are the Sources of These Pollutants?

VOCs are emitted from a variety of sources, including motor vehicles, a variety of consumer and commercial products such as paints and solvents, chemical plants, gasoline stations, and other industrial sources. NO_X is emitted from motor vehicles, power plants, and other sources that burn fossil fuels.

E. What Harmful Effects Can These Pollutants Produce?

VOCs and NO_X react in the atmosphere to form ozone, the prime ingredient of smog in our cities and many rural areas of the country. Though ozone occurs naturally high in our atmosphere, at ground level it is the prime ingredient of smog. When inhaled, even at very low levels, ozone can:

Cause acute respiratory problems;

Aggravate asthma;

Cause significant temporary decreases in lung capacity in some healthy adults;

Cause inflammation of lung tissue;

Lead to hospital admissions and emergency room visits; and

Impair the body's immune system defenses.

F. Should I Be Concerned If I Live Near an Industry That Emits a Significant Amount of These Pollutants?

Industrial facilities that emit large amounts of these pollutants are monitored by the State's environmental agency, the Department of Environmental Management (RI-DEM). Many facilities are required to emit air pollutants through stacks to ensure that high concentrations of pollutants do not exist at ground level. Permits issued to these facilities include information on which pollutants are being released, how much may be released, and what steps the source's owner or operator is taking to reduce pollution. The RI-DEM makes permit applications and permits readily available to the public for review. You can contact the RI-DEM for more information about air pollution emitted by industrial facilities in your neighborhood.

G. To What Degree Does Rhode Island's Plan Reduce Emissions?

By 1999, Rhode Island's plan will reduce VOC emissions by 29 percent and NO_X emissions by 17 percent compared to 1990 emission levels. This reduction is attributable to the control strategy outlined in the State's post-1996 plan, and in Rhode Island's ROP plan for the years 1990 to 1996 that achieved a 15 percent reduction in VOC emissions. The reduction is also partly attributable to the Federal Motor Vehicle Control Program (FMVCP). Not all emission reductions from the FMVCP program are creditable towards ROP emission reductions, and RI-DEM's ROP plan accurately accounts for this. EPA approved the Rhode Island 15 percent ROP plan on December 8, 1998 (63 FR 67594).

Rhode Island used the appropriate EPA guidance to calculate the 1999 VOC and NO_X emission target levels, and the amount of reductions needed to achieve its emission target levels.

Table 1 illustrates the steps used by Rhode Island to derive its 1999 emission target levels for VOC and NO_X. The ROP plan indicates that 1999 projected, controlled emissions are below the target levels for the Providence serious nonattainment area.

Rhode Island projected its base year emissions to 1999 using growth factors from a variety of sources, including the U.S. Department of Commerce's Bureau of Economic Analysis, and Bureau of Census data to derive population based growth factors.

H. How Will Rhode Island Achieve These Emission Reductions?

Rhode Island's post-1996 control strategy matches the control strategy described in the EPA's December 8, 1998 approval of the State's 15 percent plan, and also includes additional emission reductions from regulations limiting NO_X emissions from stationary point sources, VOC and NO_X emission reductions from federal measures limiting emissions from non-road engines promulgated between 1996 and 1999, and VOC and NO_X reductions from the on-road mobile sector attributable to the State's Low Emission Vehicle program. These additional control programs are further described below.

Rhode Island's post-1996 plan also reflects credit from the State's enhanced automobile inspection and maintenance (I&M) program, which was supposed to start by mid-1999. The post-1996 plan estimated that 2.2 tpsd in VOC emission reduction credit and 1.8 tpsd in NO_X emission reduction credit were expected to accrue by the end of 1999 from this program. However, Rhode Island did not actually begin its program until January of 2000, so emission reductions from this program did not occur in the 1996 to 1999 time-frame. This does not create a shortfall in the State's post-1996 ROP plan because Rhode Island's plan contained enough surplus emission reductions to cover its emission reduction obligation after subtraction of the I/M reductions.

NO _X RACT

Rhode Island has adopted a NO_X RACT regulation, the citation for which is Air Pollution Control regulation No. 27, “Control of Nitrogen Oxide Emissions.” Facilities covered by the rule needed to comply by May 31, 1995. Rhode Island submitted the rule to EPA as a revision to the State's SIP, and EPA approved it via a direct final rulemaking published on September 2, 1997 (62 FR 46202). Rhode Island determined, and EPA agrees, that this program will reduce NO_X emissions in the State by 6.55 tons per summer day (tpsd) by 1999.

Federal Non-Road Standards

In the June 17, 1994 Federal Register (59 FR 31306), EPA established a regulation setting final emission standards for new heavy duty compression ignition (diesel) engines. These rules adopt NO_X and smoke standards for large (>50 HP) non-road diesel engines. Additionally, in the July 3, 1995 Federal Register (60 FR 34581), EPA promulgated the first phase of the regulations to control emissions from new non-road spark-ignition engines. The regulation is found at 40 CFR part 90, and is titled, “Control of Emissions From Non-road Spark-Ignition Engines.” Rhode Island correctly applied guidance contained in a November 28, 1994 EPA memorandum pertaining to the federal non-road engine control program to determine the VOC and NO_X emission reductions that will occur in the State.

The sale of reformulated gasoline in Rhode Island also reduces VOC non-road emissions in the State. The combined effect of reformulated gasoline and the new non-road standards will lower VOC emissions by 4.0 tpsd in the State, and lower NO_X emissions by 1.3 tpsd.

Rhode Island National Low Emission Vehicle Program

Rhode Island submitted a National Low Emission Vehicle (NLEV) program to EPA as a revision to the State's SIP, and EPA approved the program via a direct final rule published in the Federal Register on March 9, 2000 (65 FR 12476). The NLEV program allows auto manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that are more stringent than EPA can mandate. The program will reduce VOC emissions by 0.08 tpsd, and NO_X emissions by 0.12 tpsd.

The Rhode Island post-1996 ROP plan demonstrates that the VOC and NO_X emission reductions from the control strategy will achieve sufficient emission reductions to lower 1999 emission levels below the target levels calculated for each pollutant.

I. Have These Emission Reductions Improved Air Quality in Rhode Island?

Ozone levels have decreased in Rhode Island during the 1990's, due in part to emission reductions achieved by the State's plans. Pollution control measures implemented by States upwind of Rhode Island have also helped ozone levels decline in the State.

J. Has Rhode Island Met its Contingency Measure Obligation?

Ozone nonattainment areas classified as serious or above must submit to the EPA, pursuant to sections 172(c)(9) and 182(c)(9) of the Act, contingency measures to be implemented if an area misses an ozone SIP milestone or does not attain the national ambient air quality standard by the applicable date.

Table 1 indicates that Rhode Island's post-1996 ROP plan achieves surplus emission reductions. The State's post-1996 ROP plan does not address contingency measures. However, on April 2, 2001, the Rhode Island DEM submitted a letter to EPA indicating the State's intention that surplus emission reductions achieved by the measures in the ROP plan be used to cover the State's contingency measure obligation. This request resulted in a change to the VOC and NO_X emission reduction percentages; the revised percentages are shown in Table 1.

Table 1 indicates a VOC surplus of 7.2 tpsd and a NO_X surplus of 1.8 tpsd. However, as noted in the I&M program discussion in this document, Rhode Island did not begin its I&M program until January 1, 2000. Table 2 illustrates how the surplus emission reductions, adjusted to subtract reductions from the I/M program, can cover the 3% contingency obligation.

As can be seen from the above table, the surplus VOC emission reduction would cover the area's 3% contingency obligation, leaving no additional reductions to spare. Therefore, EPA concludes that the Rhode Island post-1996 ROP plan adequately demonstrates that the required 9% post-1996 ROP and 3% contingency reductions have been achieved.

K. Are Conformity Budgets Contained in the Plan?

Section 176(c) of the Act, and 40 CFR 51.452(b) of the Federal transportation conformity rule require states to establish motor vehicle emissions budgets in any control strategy SIP that is submitted for attainment and maintenance of the NAAQS. Rhode Island will use such budgets to determine whether proposed projects that attract traffic will “conform” to the emissions assumptions in the SIP.

The Rhode Island post-1996 rate of progress plan contained 1999 on-road motor vehicle emission budgets for VOCs and for NO_X for the Providence serious nonattainment area. The 1999 VOC budget stated in the plan is 41.57 tpsd, and the NO_X budget is 46.40 tpsd. Rhode Island used the EPA's MOBILE 5b emission factor model to determine these budgets. These budgets should be used for making transportation conformity determinations in the State.

II. Final Action

EPA is approving the Rhode Island post-1996 rate-of-progress emission reduction plan as a revision to the State's SIP.

The EPA is publishing this action 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 relevant adverse comments be filed. This rule will be effective August 7, 2001 without further notice unless the Agency receives relevant adverse comments by July 9, 2001.

If the EPA receives such comments, then EPA will publish a notice 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 on the proposed rule. Only parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on August 7, 2001 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. 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. 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 (Public Law 104-4). This rule also does 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), nor will it 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 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 August 7, 2001. 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
• Hydrocarbons
• Nitrogen dioxide
• Ozone

40 CFR part 52 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 OO—Rhode Island

2. Section 52.2088 is added to subpart OO to read as follows: