[Federal Register Volume 78, Number 16 (Thursday, January 24, 2013)]
[Proposed Rules]
[Pages 5158-5161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01417]



40 CFR Part 52

[EPA-R01-OAR-2009-0919; A-1-FRL-9773-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Connecticut; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposed rule.


SUMMARY: On March 26, 2012, the Environmental Protection Agency (EPA) 
proposed to approve a revision to the Connecticut State Implementation 
Plan (SIP) that addresses regional haze for the first planning period 
from 2008 through 2018. The SIP was submitted by the Connecticut 
Department of Environmental Protection (now known

[[Page 5159]]

as Connecticut Department of Energy and Environmental Protection or 
``CT DEEP'') on November 18, 2009, with additional submittals on 
February 24, 2012 and March 12, 2012. In the March 26, 2012 rulemaking, 
pursuant to CT DEEP's request under parallel processing, EPA proposed 
approval of Connecticut's proposed regulation establishing an intra-
state nitrogen oxides (NOX) trading program. This rule was 
designed to serve as a Clean Air Interstate Rule (CAIR) replacement 
rule and was one component of the State's alternative to Best Available 
Retrofit Technology (BART) plan. Connecticut is, however, along with 
the other eastern States, continuing to implement CAIR. On November 23, 
2012, CT DEEP submitted a letter withdrawing the State's February 24, 
2012 parallel processing request of its CAIR replacement rule. In 
today's action, EPA is supplementing our March 26, 2012 proposal to 
include the proposed approval of Connecticut's alternative to BART plan 
based in part on Connecticut's CAIR rule, as originally submitted by 
the State on November 18, 2009.

DATES: Written comments must be received on or before February 25, 

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2009-0919 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: arnold.anne@epa.gov.
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2009-0919,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Quality Planning 
Unit, 5 Post Office Square--Suite 100, (Mail Code OEP05-2), Boston, MA 
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, U.S. Environmental Protection 
Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
(Mail Code OEP05-2), Boston, MA 02109--3912. Such deliveries are only 
accepted during the Regional Office's normal hours of operation. The 
Regional Office's official hours of business are Monday through Friday, 
8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2009-0919. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov, or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov your 
email 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, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
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 4:30, excluding legal 
    In addition, copies of the State submittal are also available for 
public inspection during normal business hours, by appointment at the 
Bureau of Air Management, Department of Energy and Environmental 
Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-

FOR FURTHER INFORMATION CONTACT: Anne McWilliams, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square--Suite 100, (Mail Code OEP05-02), Boston, MA 
02109-3912, telephone number (617) 918-1697, fax number (617) 918-0697, 
email mcwilliams.anne@epa.gov.


Table of Contents

I. Background
II. The Relationship of CAIR and the Cross-State Air Pollution Rule 
(CSAPR) to the Connecticut Regional Haze SIP
III. EPA's Assessment
IV. EPA's Supplemental Proposed Action
V. Statutory and Executive Order Reviews

    Throughout this document, wherever ``we,'' ``us,'' or ``our'' is 
used, we mean the EPA.

I. Background

    In section 169A(a)(1) of the 1977 Amendments to the Clean Air Act 
(CAA), Congress created a program for protecting visibility in the 
nation's national parks and wilderness areas. This section of the CAA 
establishes as a national goal the ``prevention of any future, and the 
remedying of any existing, impairment of visibility in mandatory Class 
I Federal areas \1\ which impairment results from manmade air 
pollution.'' Congress added section 169B to the CAA in 1990 to address 
regional haze. The EPA promulgated a rule to address regional haze on 
July 1, 1999 (64 FR 35714) (``the Regional Haze Rule''). The 
requirements of the Regional Haze rule are summarized in our March 26, 
2012 proposed approval of the Connecticut Regional Haze SIP. See 77 FR 

    \1\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977 (42 U.S.C. 7472(a)). 
In accordance with section 169A of the CAA, EPA, in consultation 
with the Department of Interior, promulgated a list of 156 areas 
where visibility is identified as an important value (44 FR 69122, 
November 30, 1979). The extent of a mandatory Class I area includes 
subsequent changes in boundaries, such as park expansions (42 U.S.C. 
7472(a)). Although States and Tribes may designate as Class I 
additional areas which they consider to have visibility as an 
important value, the requirements of the visibility program set 
forth in section 169A of the CAA apply only to ``mandatory Class I 
Federal areas.'' Each mandatory Class I Federal area is the 
responsibility of a ``Federal Land Manager'' (FLM). (42 U.S.C. 
7602(i)). When we use the term ``Class I area'' in this action, we 
mean a ``mandatory Class I Federal area.''

    On November 18, 2009, the Bureau of Air Management of the CT DEEP

[[Page 5160]]

submitted revisions to the Connecticut SIP to address regional haze, 
with supplemental submittals on February 24, 2012, and March 12, 2012. 
One component of the November 18, 2009 regional haze submittal was a 
demonstration that the implementation of Regulations of Connecticut 
State Agencies (RCSA) Section 22a-174-22, ``Control of Nitrogen Oxides 
Emissions,'' including subdivision 22a-174-22(e)(3), and RCSA Section 
22a-174-22c, ``The Clean Air Interstate Rule (CAIR) Nitrogen Oxides 
(NOX) Ozone Season Trading Program,'' provided greater 
reduction in NOX emissions than would be achieved by the 
installation of source-by-source BART NOX controls.
    In the February 24, 2012 supplemental submittal, CT DEEP requested 
the parallel processing of proposed RCSA Section 22a-174-22d, ``Post-
2011 Connecticut Ozone Season NOX Budget Program'' as a 
replacement to RCSA Section 22a-174-22c. The proposed RCSA Section 22a-
174-22d limited Connecticut's intra-state ozone season NOX 
trading budget to 2,691 tons, the same budget as included in the CAIR 
Ozone Season Trading Program.\2\

    \2\ See 77 FR 17367 for a full discussion of the Connecticut's 
Alternative to BART Program.

    As part of the March 26, 2012 rulemaking, EPA proposed to approve 
proposed RCSA Section 22a-174-22d and proposed to approve Connecticut's 
alternative to BART program for NOX, of which this rule was 
one component.
    When parallel processing, EPA proposes to approve a rule before the 
State's final adoption of the regulation. In its February 24, 2012 
supplemental submittal, Connecticut indicated that they planned to have 
a final adopted regulation prior to our final action on its Regional 
Haze SIP. Under the parallel processing procedure, after a State 
submits its final adopted regulation, EPA will review the regulation to 
determine whether it differs from the proposed regulation. If the final 
regulation does differ from the proposed regulation, EPA will determine 
whether these differences are significant. (Ordinarily, changes that 
are limited to issues such as allocation methodology would not be 
deemed significant for SIP approval purposes, assuming the methodology 
does not lead to allocations in excess of the total state budget.) 
Based on EPA's determination regarding the significance of any changes 
in the final regulation, EPA would then decide whether it is 
appropriate to prepare a final rule and describe the changes in the 
final rulemaking action, re-propose action based on the State's final 
adopted regulation, or other such action as may be appropriate.
    Today's supplemental notice of proposed rulemaking only deals with 
issues associated with Connecticut's request to parallel process the 
proposed RSCA Section 22a-174-22d as a replacement of RSCA Section 22a-
174-22c. Other aspects of EPA's March 26, 2012 proposal remain 

II. The Relationship of the CAIR and the Cross-State Air Pollution Rule 
(CSAPR) to the Connecticut Regional Haze SIP

    CAIR required certain states to reduce emissions of sulfur dioxide 
(SO2) and NOX that significantly contribute to 
downwind nonattainment of the 1997 National Ambient Air Quality 
Standards (NAAQS) for fine particulate (PM2.5) and ozone. 
See 70 FR 25162 (May 12, 2005). CAIR established emissions budgets for 
SO2 and NOX. On October 13, 2006, EPA's 
``Regional Haze Revisions to Provisions Governing Alternative to 
Source-Specific Best Available Retrofit Technology (BART) 
Determinations; Final Rule'' (hereinafter known as the ``Alternative to 
BART Rule'') was published in the Federal Register. See 71 FR 60612. 
This rule established that states participating in the CAIR program or 
other control programs need not require BART for SO2 and 
NOX at BART-eligible electric generating units (EGUs). As a 
result, many States relied on CAIR as an alternative to BART for 
SO2 and NOX for their subject EGUs. The regional 
haze SIP submitted by Connecticut on November 18, 2009 relied on the 
procedure set forth in the Alternative to BART Rule to demonstrate that 
the CAIR ozone season NOX budget for Connecticut, in 
conjunction with Connecticut's previously adopted non-ozone season 
NOX limits, provided greater visibility improvement than 
would the installation of source-specific BART NOX controls.
    CAIR was later found to be inconsistent with the requirements of 
the CAA and the rule was remanded to EPA. See North Carolina v. EPA, 
550 F.3d 1176 (D.C. Cir. 2008). The court left CAIR in place until 
replaced by EPA with a rule consistent with its opinion. See North 
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
    EPA promulgated the Cross-State Air Pollution Rule (CSAPR), to 
replace CAIR in 2011. See 76 FR 48208 (August 8, 2011). EPA 
subsequently determined that the trading programs in CSAPR could also 
serve as an alternative to source-by-source BART. See 77 FR 33642 (June 
7, 2012). Connecticut, which was subject to ozone season NOX 
controls under the CAIR program, but not subject to any of the 
requirements of CSAPR, did not have the option of relying on CSAPR as 
an alternative to BART.
    On December 30, 2011, the D.C. Circuit Court issued an order 
addressing the status of CSAPR and CAIR in response to motions filed by 
numerous parties seeking a stay of CSAPR pending judicial review. In 
that order, the D.C. Circuit stayed CSAPR pending the court's 
resolutions of the petitions for review of that rule in EME Homer 
Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The court 
also indicated that EPA is expected to continue to administer CAIR in 
the interim until the court rules on the petitions for review of CSAPR.
    On August 21, 2012, the D.C. Circuit issued a decision to vacate 
CSAPR. In that decision, it also ordered EPA to continue administering 
CAIR ``pending the promulgation of a valid replacement.'' EME Homer 
Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir., August 21, 2012).\3\

    \3\ The court's judgment is not yet final as the mandate has not 
issued and on October 5, 2012, EPA filed a petition asking for 
rehearing en banc.

    In light of the vacatur and remand of CSAPR and the continuation of 
CAIR, CT DEEP has not finalized its adoption of the Connecticut CAIR 
replacement rule, RCSA Section 22a-174-22d. In a letter dated November 
23, 2012, CT DEEP withdrew its February 24, 2012 request for parallel 
processing of this regulation.

III. EPA's Assessment

    Due to the unique circumstances surrounding Connecticut's 
development of its regional haze SIP and for the reasons explained 
below, EPA is proposing to approve Connecticut's Alternative to BART 
program based on, in part, the use of CAIR ozone season NOX 
reductions. As a result of the decision of the D.C. Circuit in EME 
Homer Generation, L.P. v. EPA, CAIR remains in place and enforceable 
until substituted by a ``valid'' replacement rule. To the extent that 
Connecticut is relying on ozone season CAIR as one element of the 
Alternative to BART program, the recent directive from the D.C. Circuit 
in EME Homer ensures that the reductions associated with CAIR will be 
permanent and enforceable for the foreseeable future. EPA has been 
ordered by the Court to develop a new rule and the opinion makes clear 
that, after promulgating that new rule, EPA must provide states an 
opportunity to draft and submit SIPs to implement that rule. CAIR thus 
cannot be replaced until

[[Page 5161]]

EPA has promulgated a final rule through a notice-and-comment 
rulemaking process, States have had an opportunity to draft and submit 
SIPs, EPA has reviewed the SIPs to determine if they can be approved, 
and EPA has taken action on the SIPs, including promulgating a Federal 
Implementation Plan (FIP) if appropriate. These steps alone will take 
many years, even with EPA and the states acting expeditiously.
    For these reasons, EPA believes it is appropriate to allow 
Connecticut to rely on CAIR at this time, and the existing emissions 
reductions achieved by CAIR, as sufficiently permanent and enforceable 
for purposes such as visibility improvement for the first Regional Haze 
planning period and BART. Following promulgation of the replacement 
rule, EPA will take action to require states to revise their regional 
haze SIPs to address the BART requirements. At that time, EPA will also 
determine whether, and to what extent, the replacement rule provides 
for greater reasonable progress than case by case BART.

IV. EPA's Supplemental Proposed Action

    EPA is proposing to approve Connecticut's use of the existing 
federally enforceable RCSA Section 22a-174-22c, ``The Clean Air 
Interstate Rule (CAIR) Nitrogen Oxides (NOX) Ozone Season 
Trading Program,'' as originally submitted by the State on November 18, 
2009, as one component of its alternative to BART program. We are also 
withdrawing our previous proposed approval of RCSA Section 22a-174-22d 
as one element of Connecticut's alternative to BART plan. EPA is 
soliciting public comments on the issues discussed in this notice. EPA 
is only taking comment on the use of ozone season CAIR as part of 
Connecticut's Alternative to BART program. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: January 11, 2013.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2013-01417 Filed 1-23-13; 8:45 am]