02-9066. Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Post-1996 Rate of Progress Plans

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. This revision establishes post-1996 rate of progress (ROP) emission reduction plans for the Portsmouth-Dover-Rochester serious ozone nonattainment area, and the New Hampshire portion of the Boston-Lawrence-Worcester serious area. 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 June 17, 2002 without further notice, unless EPA receives adverse comment by May 16, 2002. If EPA receives adverse comment, 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 Air Resources Division, New Hampshire Department of Environmental Services, 6 Hazen Drive, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT:

Robert McConnell, [phone].

SUPPLEMENTARY INFORMATION:

On September 27, 1996, the State of New Hampshire submitted a formal revision to its SIP. The SIP revision consisted of post-1996 rate-of-progress (ROP) plans for the Portsmouth-Dover-Rochester and the New Hampshire portion of the Boston-Lawrence-Worcester serious areas.

This Supplementary Information section is organized as follows:

A. What action is EPA taking today?

B. Why was New Hampshire 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 New Hampshire's plan reduce emissions?

H. How will New Hampshire achieve these emission reductions?

I. Have these emission reductions improved air quality in New Hampshire?

J. Has New Hampshire met its contingency measure obligation?

K. Are conformity budgets contained in the plan?

A. What action Is EPA Taking Today?

EPA is approving post-1996 ROP emission reduction plans submitted by the State of New Hampshire for the Portsmouth-Dover-Rochester area, and the state's portion of the Boston-Lawrence-Worcester (Boston area) as a revision to the state's SIP. New Hampshire did not enter into an agreement with Massachusetts to do a multi-state ROP plan, and therefore submitted a plan to reduce emissions only in the New Hampshire portion of the Boston area. EPA is taking action today only on the New Hampshire portion of the Boston area post-1996 plan.

The post-1996 ROP plans document how New Hampshire complied with the provisions of section 182 (c)(2)(B) of the Federal Clean Air Act (the Act). 42 U.S.C. 7511a(c)(2)(B). This section of the Act requires states containing certain ozone nonattainment areas to develop strategies that reduce emissions of the pollutants that react to form ground level ozone.

B. Why Was New Hampshire Required To Reduce Emissions of Ozone Forming Pollutants?

New Hampshire was required to develop plans to reduce ozone precursor emissions because it contains ozone nonattainment areas. A final rule published by EPA on November 6, 1991 (56 FR 56694) designated portions of the state as nonattainment for ozone, and classified two of these areas as serious.

Section 182 (c)(2)(B) of the Act requires that serious 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. Although these areas attained the one hour ozone national ambient air quality standard for the period from 1998 through 2000, monitoring data for the summer of 2001 indicate that the Boston area once again has violated the standard. Therefore, the Act continues to require a ROP plan for this area.

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

The state's post-1996 plans are 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 harmful to health. 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 Services (NH-DES). 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 NH-DES makes permit applications and permits readily available to the public for review. You can contact the NH-DES for more information about air pollution emitted by industrial facilities in your neighborhood.

G. To What Degree Does New Hampshire's Plan Reduce Emissions?

By 1999, New Hampshire's ROP plans will reduce VOC emissions by 31 percent and NO_X emissions by 28 percent compared to 1990 emission levels. This reduction is attributable to the control strategy outlined in the state's post-1996 plans, and in New Hampshire's ROP plans 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 New Hampshire's ROP plans accurately account for this. EPA approved New Hampshire's 15 percent ROP plans on December 7, 1998 (63 FR 67405).

New Hampshire 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. Under section 182(c)(2)(C) of the Act, NO_X reductions can be used to meet this emission reduction obligation in some circumstances. Available modeling indicates that NO_X emission reductions are clearly beneficial in New Hampshire, and so as outlined in EPA's NO_X substitution guidance dated December 15, 1993, use of NO_X emission reductions to meet post-96 emission reduction obligations is appropriate in the state.

The manner in which states are to determine the required level of emission reductions is described in an EPA guidance document entitled, “Guidance on the Post-1996 Rate-of-Progress Plan and the Attainment Demonstration” (EPA 452-93-015.) The calculation procedure is similar to the one used to determine the 15 percent emission reduction obligation. Table 1 below illustrates the steps New Hampshire used 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 state's two serious nonattainment areas. The analysis presented in Table 1 for the Boston-Lawrence-Worcester area includes substitution of NO_X emissions from outside of that nonattainment area, and is further discussed later in this document. Additionally, Table 1 contains an evaluation of the effect that removal of acetone would have on the state's ROP demonstration, which is also discussed further in this document. Emissions in parenthesis reflect subtraction of acetone from the base year VOC inventory, and are the values we are approving today.

Table 1

[Units are tons per summer day]

Description	Por-Dov-Roc VOC	Por-Dov-Roc NOX	Bos-Law-Wor VOC	Bos-Law-Wor NOX
Step 1—Calculate 1990 Base Year Inventory	76.0	46.5	91.9	59.7 (includes 26.3 from a source outside the area)
Step 2—Develop Rate-of Progress Inventory (by subtracting biogenics and non-reactives).	Bio: −35.0 Acet: −0.3 = 41.0 (40.7)	46.5	Bio: −36.1 Acet: −0.5 = 55.9 (55.4)	59.7
Step 3—Develop Adjusted Base Year Inventory by subtracting non-creditable FMVCP/RVP rdxns. between 1990-1999	−6.5 =34.5 (34.2)	−4.0 =42.5	−9.4 =46.5 (46.0)	−5.5 =54.2
Step 4—Calculate Required Reduction {state added the 3% contingency obligation to the ROP reductions calculation, so total required is 12% reduction}	3.0% =1.0 (1.0)	9.0% =3.8	0.9% =0.4 (0.4)	11.1% =6.0
Step 5—Calculate total expected reduction: For VOC, sum of steps 3 and 4, +15% VOC reduction from 1990 to 1996, which was 5.3 tpsd for Por-Dov-Roc area, and 7.2 tpsd for Bos-Law-Wor area.	6.5+ 1.0+ 5.3= 12.8	4.0+ 3.8=   7.8	9.4+ 0.4+ 7.2= 17.0	5.5+ 6.0   11.5
Step 6—Set Target Level for 1999: Step 2—Step 5	28.2 (27.9)	38.7	38.9 (38.4)	48.2
Step 7—Project Emissions to 1999	37.7 (37.4)	45.4	53.3 (52.8)	58.9
Step 8—Projected, Controlled 1999 Emissions	28.1 (27.9)	36.1	38.7 (38.4)	40.0

New Hampshire projected its base year stationary and non-road mobile source emissions to 1999 by using the Economic Growth and Analysis System, which contains growth assumptions for specific geographic areas in the U.S. that are based on forecasts of economic activity. Estimates of growth in VMT were obtained from the New Hampshire Department of Transportation.

On June 16, 1995, EPA published a final rule in the Federal Register that added acetone to the federal list of compounds with negligible photochemical reactivity (60 FR 31633). As a result of that action, states could no longer consider acetone a VOC, and so emission reductions of acetone are not creditable towards ROP plan reductions. The state's post-96 ROP plan does not indicate that acetone was removed from the New Hampshire 1990 base year inventory prior to calculation of the emission target levels. Therefore, we performed an analysis to remove acetone from the base year emission estimates of two area source categories whose emissions contained significant amounts of acetone: the surface coatings category and the graphic arts category. The details of our analysis are available in the technical support document included in the docket supporting this action; the results of that analysis are shown in parenthesis in Table 1.

Table 1 indicates that sufficient VOC and NO_X emission reductions exist in the Portsmouth-Dover-Rochester area to meet that area's ROP obligation through 1999. Information presented in the state's ROP submittal indicates that this is not the case for the New Hampshire portion of the Boston-Lawrence-Worcester area. Therefore, as shown in Table I, baseline and projected, controlled NO_X emissions from a source outside of the Boston-Lawrence-Worcester area were added to that area's ROP analysis so that the substantial emission reductions achieved by the source could be credited towards the area's ROP emission reduction obligation.

EPA believes this substitution is appropriate. The state's ROP plan documents that the emissions from the substituted source, the Public Service Company of New Hampshire's Merrimack Station electric generating plant in Bow, impacts the New Hampshire portion of the Boston-Lawrence-Worcester area, and therefore emission reductions from this facility should help improve air quality in New Hampshire's portion of the Boston-Lawrence-Worcester area. A December 1997 memorandum from Richard D. Wilson, Acting Assistant Administrator for Air and Radiation to the Regional Administrators contains a policy recommendation that substitution of emission reduction credits from outside of a nonattainment area for ROP purposes be allowed if certain criteria are met. Two central components of that policy are that a source lending NO_X emission reductions be no more than 200 kilometers from the recipient nonattainment area, and the lending source's emissions must be included in the recipient area's baseline and ROP emission calculations. New Hampshire's proposed emission reduction substitution meets the criteria outlined in the December 1997 memorandum.

H. How Will New Hampshire Achieve These Emission Reductions?

New Hampshire's post-1996 control strategy matches the control strategy described in the EPA's December 7, 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 described below.

NO_X RACT

The Act requires that states develop Reasonably Available Control Technology (RACT) regulations for all major stationary sources of NO_X in areas which have been classified as “moderate,” “serious,” “severe,” and “extreme” ozone nonattainment areas, and in all areas of the Ozone Transport Region (OTR). EPA has defined RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. New Hampshire submitted its NO_X RACT regulation in various pieces between 1992 and 1995 as a revision to the state's SIP. On April 9, 1997, EPA approved the state's NO_X RACT rule through a direct final action in the Federal Register (62 FR 17087.)

Ozone Transport Commission (OTC) Phase II NO_X Requirements

On July 27, 1998, New Hampshire submitted a request to revise its SIP by adding Chapter Env-A 3200, “NO_X Budget Trading Program” and Final RACT Order, ARD-98-001. The state's submittal contains emission limits consistent with both Phase II and Phase III requirements of the OTC NO_X MOU. Facilities covered by the rule needed to comply by the 1999 ozone season. Additionally, Final RACT Order ARD-98-001 contains emission limits for unit # 2 at Merrimack Station, with a May 31, 1999 effective date. EPA approved both of these submittals in a direct final action published in the Federal Register on November 14, 2000 (65 FR 68078).

New Hampshire projects that in 1999 NO_X emissions from point sources in the two serious nonattainment areas, combined with the emissions added from Merrimack Station, will be 25 tons per day lower than 1990 emission levels due to the above two NO_X control measures.

The New Hampshire 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 New Hampshire?

Ozone levels have decreased in New Hampshire during the 1990's, due in part to emission reductions achieved by the state's plans. Pollution control measures implemented by states upwind of New Hampshire have also helped ozone levels decline in the state.

J. Has New Hampshire Met Its Contingency Measure Obligation?

Ozone nonattainment areas classified as serious or above must submit to the EPA, pursuant to section 182(c)(9) of the Act, contingency measures to be implemented if an area misses an ozone SIP milestone. New Hampshire's contingency plan consists of surplus NO_X emission reductions generated by the control programs in its ROP plans. New Hampshire incorporated the 3% contingency reduction obligation in its derivation of 1999 emission target levels. Table I illustrates that the 1999 emission target levels are met for both pollutants in both areas, thereby demonstrating that the 3% contingency obligation has been met. We are approving the state's demonstration that it meets the contingency measure requirement of section 182(c)(9) of the Act.

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. New Hampshire will use such budgets to determine whether proposed projects that attract traffic will “conform” to the emissions assumptions in the SIP.

New Hampshire's post-1996 plans include motor vehicle emission budgets for 1999. However, New Hampshire submitted an ozone attainment demonstration SIP revision to EPA on June 30, 1998. The ozone attainment demonstration establishes the VOC and NO_X emission budgets for 2003 shown in Table 2.

Table 2.—2003 Emission Budgets for On-road Mobile Sources (tpsd)

Area	2003 VOC budget	2003 NOX budget
NH portion of Bos-Law-Wor area	10.72	21.37
Por-Dov-Roc area	6.97	13.68

By letter dated August 19, 1998, we informed New Hampshire that the motor vehicle budgets contained within the state's ozone attainment demonstration were adequate for conformity purposes. The 2003 VOC and NO_X budgets established by the New Hampshire ozone attainment demonstration are currently the controlling budgets for conformity determinations for 2003 and later years.

II. Final Action

EPA is approving the New Hampshire post-1996 rate-of-progress emission reduction plans and contingency 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 June 17, 2002 without further notice unless the Agency receives relevant adverse comments by May 16, 2002.

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 EPA receives no such comments, the Agency advises the public that this rule will be effective on June 17, 2002 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. 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 17, 2002. 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
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements

Dated: April 4, 2002.

Ira W. Leighton,

Acting Regional Administrator, EPA New England.

PART 52—[AMENDED]

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

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

Subpart EE—New Hampshire

2. Section 52.1534 is added to subpart EE to read as follows:

§ 52.1534

Control strategy: Ozone.

(a) Revisions to the State Implementation Plan submitted by the New Hampshire Department of Environmental Services on September 27, 1996. These revisions are for the purpose of satisfying the rate of progress requirement of section 182(c)(2)(B), and the contingency measure requirements of section 182(c)(9) of the Clean Air Act, for the Portsmouth-Dover-Rochester serious area, and the New Hampshire portion of the Boston-Lawrence-Worcester serious area.