Federal Register / Vol. 76, No. 90 / Tuesday, May 10, 2011 / Rules and Regulations 26933 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add a temporary § 165.T07–0143 to 

read as follows: 

§ 165.T07–0143 Safety Zone; Second 

Annual Space Coast Super Boat Grand Prix, 

Atlantic Ocean, Cocoa Beach, FL. 

(a) Regulated area. The following 

regulated area is a safety zone: all waters 

of the Atlantic Ocean located east of 

Cocoa Beach, FL and encompassed 

within an imaginary line connecting the 

following points: Starting at Point 1 in 

position 28°22′16′′ N, 80°36′04′′ W; 

thence west to Point 2 in position 

28°22′15′′ N, 80°35′39′′ W; thence south 

to Point 3 in position 28°19′47′′ N, 

80°35′55′′ W; thence east to Point 4 in 

position 28°19′47′′ N, 80°36′22′′ W; 

thence north back to origin. All 

coordinates are North American Datum 

1983. 

(b) Definition. The term ‘‘designated 

representative’’ means Coast Guard 

Patrol Commanders, including Coast 

Guard coxswains, petty officers, and 

other officers operating Coast Guard 

vessels, and Federal, state, and local 

officers designated by or assisting the 

Captain of the Port Jacksonville in the 

enforcement of the regulated area. 

(c) Regulations. (1) All persons and 

vessels are prohibited from entering, 

transiting through, anchoring in, or 

remaining within the regulated area 

unless authorized by the Captain of the 

Port Jacksonville or a designated 

representative. 

(2) Persons and vessels desiring to 

enter, transit through, anchor in, or 

remain within the regulated area may 

contact the Captain of the Port 

Jacksonville by telephone at 904–564– 

7511, or a designated representative via 

VHF radio on channel 16, to request 

authorization. If authorization to enter, 

transit through, anchor in, or remain 

within the regulated area is granted by 

the Captain of the Port Jacksonville or 

a designated representative, all persons 

and vessels receiving such authorization 

must comply with the instructions of 

the Captain of the Port Jacksonville or 

his designated representative. 

(3) The Coast Guard will provide 

notice of the regulated area through 

advanced notice via Local Notice to 

Mariners, Broadcast Notice to Mariners, 

and by on-scene designated 

representatives. 

(d) Effective date and enforcement 

period. This rule is effective from 10 

a.m. on May 21, 2011 through 5:30 p.m. 

on May 22, 2011. The regulated area 

will be enforced from 10 a.m. until 4 

p.m. on May 21, 2011, and 9 a.m. until 

5:30 p.m. on May 22, 2011. 

Dated: April 29, 2011. 

C.A. Blomme, 

Captain, U.S. Coast Guard, Captain of the 

Port Jacksonville. 

[FR Doc. 2011–11341 Filed 5–9–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2010–0996, A–1–FRL9286– 

4] 

Approval and Promulgation of 

Implementation Plans; Connecticut: 

Prevention of Significant Deterioration; 

Greenhouse Gas Permitting Authority 

and Tailoring Rule Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the State 

Implementation Plan (SIP), submitted 

by Connecticut Department of 

Environmental Protection (DEP) to EPA 

on December 9, 2010, for parallel 

processing. DEP submitted the final 

version of this SIP revision on February 

9, 2011. The SIP revision, which 

incorporates updates to DEP’s air 

quality regulations, includes two 

significant changes impacting the 

regulation of greenhouse gases (GHG) 

under Connecticut’s New Source 

Review (NSR) Prevention of Significant 

Deterioration (PSD) program. First, the 

revision provides Connecticut with 

authority to issue PSD permits 

governing GHG. Second, the SIP 

revision establishes appropriate 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

Connecticut’s PSD permitting 

requirements for their GHG emissions. 

The first change is necessary because 

Connecticut is required to apply its PSD 

program to GHG-emitting sources, and 

unless it does so (or unless EPA 

promulgates a federal implementation 

plan (FIP) to do so), such sources will 

be unable to receive preconstruction 

permits and therefore may not be able 

to construct or modify. The second 

change is necessary, because without it, 

PSD requirements would apply at the 

100 or 250 ton per year (tpy) levels 

otherwise provided under the Clean Air 

Act (CAA or Act), which would 

overwhelm Connecticut’s permitting 

resources. EPA is approving 

Connecticut’s February 9, 2011, SIP 

revision because the Agency has made 

the determination that this SIP revision 

is in accordance with the CAA and EPA 

regulations, including regulations 

pertaining to PSD permitting for GHG. 

Additionally, EPA is responding to 

adverse comments received on EPA’s 

January 6, 2011, proposed approval of 

Connecticut’s December 9, 2010, SIP 

revision. 

DATES: Effective Date: This rule will be 

effective May 10, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OAR– 

2010–0996. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information 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 through http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, EPA New England Regional 

Office, Office of Ecosystem Protection, 

Air Permits, Toxics, and Indoor Air 

Programs Unit, 5 Post Office Square— 

Suite 100, Boston, MA. EPA requests 

that if at all possible, you contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section for further 

information. The Regional Office’s 

official hours of business are Monday 

through Friday, 8:30 to 4:30, excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Connecticut 

SIP, contact Donald Dahl, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Permits, 

Toxics, and Indoor Programs Unit, 5 

Post Office Square—Suite 100, (mail 

code OEP05–2), Boston, MA 02109– 

3912. Mr. Dahl’s telephone number is 

(617) 918–1657; e-mail address: 

dahl.donald@epa.gov. 


emcdonald on DSK2BSOYB1PROD with RULES
26934 Federal Register / Vol. 76, No. 90 / Tuesday, May 10, 2011 / Rules and Regulations 

1 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

2 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

3 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

4Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

5 ‘‘Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call: 

Final Rule.’’ 75 FR 77698 (December 13, 2010). 

6 ‘‘Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan: Proposed Rule.’’ 75 

FR 53883 (September 2, 2010). 

7Connecticut’s submittal also revises Section 

22a–174–33; however, this section relates to the 

state’s title V operating permit program and it is not 

the state’s intention to incorporate any provision of 

this program into the SIP. As such, EPA is not 

taking final action to approve Connecticut’s changes 

to Section 22a–174–33 in this rulemaking. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. Analysis of Connecticut’s SIP Revision 

III. What is EPA’s response to comments 

received on this action? 

IV. What is the effect of this final action? 

V. When is this action effective? 

VI. Final Action 

VII. Statutory and Executive Order Reviews 

I. What is the background for this final 

action? 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHG that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action for the Connecticut SIP. The first 

four of these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,1 the ‘‘Johnson Memo 

Reconsideration,’’ 2 the ‘‘Light-Duty 

Vehicle Rule,’’ 3 and the ‘‘Tailoring 

Rule.’’ 4 Taken together, these actions 

established regulatory requirements for 

GHG emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they took effect on January 2, 2011, will 

subject GHG emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. In a separate action, 

EPA called on the State of Connecticut 

and 12 other states with SIPs that do not 

provide authority to issue PSD permits 

governing GHG to revise their SIPs to 

provide such authority (the ‘‘GHG PSD 

SIP Call’’).5 EPA established a deadline 

of March 1, 2011, for Connecticut to 

submit its GHG PSD SIP. Finally, in the 

most recent action, EPA proposed to 

implement a FIP authorizing PSD 

permitting for GHG for those states that 

are unable to revise their SIPs to provide 

that authority by the applicable 

deadline (the ‘‘GHG PSD FIP’’).6 By a 

notice signed December 23, 2010, EPA 

finalized the FIP for seven states: 

Arizona, Arkansas, Florida, Idaho, 

Kansas, Oregon, and Wyoming. 

On December 9, 2010, in response to 

the Tailoring Rule and earlier GHGrelated EPA rules, and in anticipation of 

the GHG PSD SIP Call rulemaking, DEP 

submitted a draft revision to EPA for 

approval into the Connecticut SIP to: (1) 

Provide the State with the authority to 

regulate GHG under its PSD program; 

and (2) establish appropriate emission 

thresholds for determining which new 

or modified stationary sources become 

subject to Connecticut’s PSD permitting 

requirements for GHG emissions. 

Subsequently, on January 6, 2011, EPA 

published a proposed rulemaking to 

approve Connecticut’s December 9, 

2010, draft SIP revision under parallel 

processing. 76 FR 752. Specifically, 

Connecticut’s December 9, 2010 draft 

SIP revision includes changes to 

Sections 22a–174–1 and 22a–174–3a of 

the Regulations of Connecticut State 

Agencies.7 The changes include 

adopting definitions of greenhouse gases 

and carbon dioxide equivalent and 

applying the Tailoring Rule’s thresholds 

for GHG permitting applicability. 

Detailed background information and 

EPA’s rationale for the proposed 

approval are provided in EPA’s January 

6, 2011, Federal Register notice. 

EPA’s January 6, 2011, proposed 

approval was contingent upon the State 

of Connecticut providing a final SIP 

revision that was substantively the same 

as the revision proposed for approval by 

EPA in the January 6, 2011, proposed 

rulemaking. 76 FR 752. Connecticut 

provided its final SIP revision on 

February 9, 2011. While there are minor 

differences between the draft and final 

regulations, mainly to the format of 

internal references, EPA has determined 

that these differences do not warrant reproposal of this action. The changes are 

mostly edits to the format for internal 

references within the regulation, e.g. 

changing ‘‘Table 3a(k)(1)’’ to ‘‘Table 

3a(k)(1) of this subsection,’’ plus one 

minor edit designed to clarify the 

original intent of the formula for 

calculating ‘‘carbon dioxide equivalent 

emissions.’’ See Memorandum from the 

Connecticut Commissioners’ Office to 

the Connecticut Legislative Regulation 

Review Committee at 2 (Jan. 25, 2011). 

II. Analysis of Connecticut’s SIP 

Revision 

Section 110(k)(3) of the CAA provides 

that EPA shall approve a SIP revision as 

a whole if it meets all of the applicable 

requirements of the CAA. Connecticut 

received a SIP call because its PSD 

program does not apply to GHG. As a 

result, Connecticut is required to submit 

a SIP revision that applies PSD to GHG 

and do so either at the Tailoring Rule 

thresholds or at lower thresholds. 

Connecticut is required to demonstrate 

that it has adequate resources for 

implementation if the state establishes 

lower thresholds. 

Connecticut has submitted a SIP 

revision that provides this authority. 

Connecticut’s SIP revision adopts new 

definitions for ‘‘carbon dioxide 

equivalent emissions’’ and ‘‘greenhouse 

gases’’ into section 22a–174–1. These 

new definitions were necessary because 

the state’s definition of air pollutant 

excluded carbon dioxide except for 

certain state rules. Connecticut’s PSD 

regulation, found in section 22a–174– 

3a, is not one of the excepted rules. 

To fully implement EPA’s Tailoring 

Rule, Connecticut amended several 

subsections in section 22a–174–3a. 

Section 22a–174–3a contains the state’s 

permitting requirements for minor new 

source review, PSD, and nonattainment 

new source review. Subsections 

amended were subsection (1) which 

adds GHG emission thresholds to the 

general applicability section, subsection 

(d)(3)(H) which requires the applicant to 

incorporate best available control 

technology (BACT) for GHG emissions, 

subsection (j) which establishes the 

thresholds for GHG emissions for 

applying BACT, and subsection (k) 

which establishes GHG emission 

thresholds for PSD permitting. 

Connecticut has adopted the thresholds 

contained in EPA’s Tailoring Rule for all 

of the thresholds established in the 

individual subsections. Connecticut did 

not choose to establish a lower 

threshold than required by the Tailoring 

Rule. 

EPA has determined these changes to 

Connecticut’s regulations meet the 

requirements of the SIP call. Thus these 

changes are consistent with the CAA 

and its implementing regulations 

regarding PSD permit requirements for 

GHG emissions. The thresholds for 

permitting GHG emissions established 

in this submittal are the same as EPA’s 

Tailoring Rule, and therefore comply 

with the requirements of the SIP call. 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 90 / Tuesday, May 10, 2011 / Rules and Regulations 26935 

8EPA is likewise also not reopening this issue in 

this rulemaking. 

9The Commenter recited that it had attached 

those previously submitted comments to its 

comments on the proposed rulemaking related to 

this action, although it appears they were neither 

attached nor forwarded to the docket for this action. 

Nevertheless, EPA is aware of the Commenter’s 

prior comments and, as explained below, does not 

find them persuasive. 

III. What is EPA’s response to 

comments received on this action? 

EPA received two sets of comments 

on the January 6, 2011, proposed 

rulemaking to approve revisions to 

Connecticut’s SIP. One set of comments, 

provided by the Sierra Club, was in 

favor of EPA’s January 6, 2011 proposed 

action. The other set of comments, 

provided by the Air Permitting Forum, 

raised concerns with final action on 

EPA’s January 6, 2011 proposed action. 

A full set of the comments provided by 

both the Sierra Club and Air Permitting 

Forum (hereinafter referred to as ‘‘the 

Commenter’’) is provided in the docket 

for today’s final action. A summary of 

the adverse comments and EPA’s 

responses are provided below. 

Generally, the adverse comments fall 

into five categories. First, the 

Commenter asserts that EPA’s SIP Call 

was unauthorized and imposed too 

short a deadline for Connecticut to act 

to revise its SIP. Second, the Commenter 

asserts that PSD requirements cannot be 

triggered by GHG. Third, the 

Commenter expresses concerns 

regarding EPA’s previously announced 

intention to narrow its prior approval of 

some SIPs to ensure that sources with 

GHG emissions that are less than the 

Tailoring Rule’s thresholds will not be 

obligated under federal law to obtain 

PSD permits prior to a SIP revision 

incorporating those thresholds. The 

Commenter explains that the planned 

SIP approval narrowing action is 

inapplicable to this action and, if 

applicable, is illegal. Fourth, the 

Commenter states that EPA has failed to 

meet applicable statutory and executive 

order review requirements. Lastly, the 

Commenter states: ‘‘EPA should 

explicitly state in any final rule that the 

continued enforceability of these 

provisions in the Connecticut SIP is 

limited to the extent to which the 

federal requirements remain 

enforceable.’’ EPA’s response to these 

five categories of comments is provided 

below. 

Comment 1: The first comment asserts 

that EPA’s SIP Call was unauthorized 

and imposed too short a deadline for 

Connecticut to act to revise its SIP. This 

is because, according to the Commenter, 

the recent Cinergy decision allows 

sources in the State to rely on the 

provisions of the currently approved 

PSD SIP to obtain permits for 

construction or modification. United 

States v. Cinergy Corp., 623 F.3d 455 

(7th Cir. 2010). 

Response 1: EPA established the 

requirement that Connecticut submit a 

corrective SIP revision to provide for the 

authority to issue PSD permits for GHG 

emissions in the GHG PSD SIP call 

rulemaking. As part of that rulemaking, 

EPA allowed states to choose not to 

object to a short timeframe for amending 

their SIPs, and the deadline established 

for submitting Connecticut’s PSD SIP 

revision is the date requested by the 

State. EPA has not reopened either of 

these issues in the current rulemaking. 

The only issues relevant to this 

rulemaking concern whether 

Connecticut’s SIP submission meets the 

requirements of the SIP call and 

therefore should be approved. Issues 

concerning the validity of the SIP call 

and the deadlines it established, 

including the comments raised by the 

commenter, may have been relevant for 

the SIP call rulemaking but are not 

relevant for this rulemaking. 

Accordingly, these comments are not 

relevant for this rulemaking. 

In any event, EPA disagrees with the 

comment and the Commenter’s 

interpretation of the Cinergy decision. 

EPA specifically discussed the Cinergy 

decision in the SIP call itself, 75 FR 

77705–06 n.16. As we stated in the SIP 

call, EPA has long interpreted the PSD 

applicability provisions in the CAA to 

be self-executing,8 that is, they apply by 

their terms so that a source that emits 

any air pollutant subject to regulation 

becomes subject to PSD—and, therefore, 

cannot construct or modify without 

obtaining a PSD permit—and these 

provisions apply by their terms in this 

manner regardless of whether the state 

has an approved SIP PSD program. 

What’s more, until an applicable 

implementation plan is in place—either 

an approved SIP or a FIP—no permitting 

authority is authorized to issue a permit 

to the source. In the recent Cinergy 

decision, the 7th Circuit confronted a 

case that, at the district court level, 

involved both nonattainment NSR and 

PSD claims, with the appeal involving 

substantive nonattainment NSR issues 

and evidentiary PSD issues. However, in 

its opinion, the 7th Circuit described the 

substantive nonattainment NSR issue as 

if it applied to both nonattainment NSR 

and PSD. On that issue, the Court held 

that sources could continue to abide by 

permitting requirements in an existing 

SIP until amended, even if that SIP does 

not comport with the law. Again, 

notwithstanding the Court’s broader 

description of the case, that holding 

applied only to the nonattainment NSR 

claims because, again, only those claims 

were before it on that issue. United 

States v. Cinergy Corp., 623 F.3d 455 

(7th Cir. 2010). In stark contrast to the 

nonattainment provisions actually at 

issue in Cinergy—which are not selfexecuting and must therefore be 

enforced through a SIP—PSD is selfexecuting; it is the statute (CAA section 

165), not just the SIP, that prohibits a 

source from constructing a project 

without a permit issued in accordance 

with the Clean Air Act. Because the PSD 

provisions were simply not before the 

Cinergy Court in the appeal on this 

issue, the commenter’s reading of that 

portion of the opinion to apply to PSD 

is in error. As the commenter noted, in 

a petition for rehearing that was 

primarily devoted to other issues, EPA 

asked the Court to revise its opinion to 

make clear that its holding on the 

relevant issue was limited to the 

nonattainment provisions in play on 

that issue. The Court denied the petition 

for rehearing and, accordingly, did not 

revise its opinion. However, the Court 

did not explain its reasons for denying 

the petition for rehearing, and therefore 

did not address why it would not revise 

its opinion. We note that Cinergy, in its 

response to EPA’s petition for 

reconsideration, did not contest that the 

relevant issue concerned only the 

nonattainment provisions, and not the 

PSD provisions. Accordingly, we do not 

read the Court’s denial of the petition 

for rehearing as any kind of affirmation 

that in the Court’s view, its decision on 

the relevant issue extends beyond the 

nonattainment provisions in play on 

that issue. Further, we believe that the 

fact that all of the parties to the case 

recognized that only the nonattainment 

provisions were in play on the relevant 

issue could explain the Court’s denial of 

EPA’s request to revise the opinion. 

Comment 2: The Commenter asserts 

that PSD requirements cannot be 

triggered by GHG. In its letter, the 

Commenter states: ‘‘[n]o area in the State 

of Connecticut has been designated 

attainment or unclassifiable for 

greenhouse gases (GHGs), as there is no 

national ambient air quality standard 

(NAAQS) for GHGs. Therefore, GHGs 

cannot trigger PSD permitting 

requirements.’’ The Commenter notes 

that it made this argument in detail in 

comments submitted to EPA on the 

Tailoring Rule and other related GHG 

rulemakings.9 Finally, the Commenter 

states that ‘‘EPA should immediately 

provide notice that it is now 

interpreting the Act not to require that 

GHGs trigger PSD and allow 


emcdonald on DSK2BSOYB1PROD with RULES
26936 Federal Register / Vol. 76, No. 90 / Tuesday, May 10, 2011 / Rules and Regulations 

Connecticut to rescind that portion of its 

rules and implement the program 

consistent with the proper 

interpretation such that GHGs do not 

trigger PSD permitting * * *’’ 

Response 2: EPA established the 

requirement that PSD applies to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants, in 

earlier national rulemakings concerning 

the PSD program, and EPA has not reopened that issue in this rulemaking. 

Accordingly, these comments are not 

relevant to this rulemaking and are 

time-barred as to the earlier national 

rulemakings. In addition, EPA has 

explained in detail, in recent 

rulemakings concerning GHG PSD 

requirements, its reasons for disagreeing 

with these comments. 

In an August 7, 1980, rulemaking at 

45 FR 52676, 45 FR 52710–52712, and 

45 FR 52735, EPA stated that a ‘‘major 

stationary source’’ was one that emitted 

‘‘any air pollutant subject to regulation 

under the Act’’ at or above the specified 

numerical thresholds, and defined a 

‘‘major modification,’’ in general, as a 

physical or operational change that 

increased emissions of ‘‘any pollutant 

subject to regulation under the Act’’ by 

more than an amount that EPA 

variously termed as de minimis or 

significant. In addition, in EPA’s NSR 

Reform rule at 67 FR 80186 and 67 FR 

80240 (December 31, 2002), EPA added 

to the PSD regulations the new 

definition of ‘‘regulated NSR pollutant’’ 

(currently codified at 40 CFR 

52.21(b)(50) and 40 CFR 51.166(a)(49)), 

noted that EPA added this term based 

on a request from a commenter to 

‘‘clarify which pollutants are covered 

under the PSD program,’’ and explained 

that in addition to criteria pollutants for 

which a NAAQS has been established, 

‘‘[t]he PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS [new source 

performance standard] applicable to a 

previously unregulated pollutant.’’ Id. at 

67 FR 80240 and 67 FR 80264. Among 

other things, the definition of ‘‘regulated 

NSR pollutant’’ includes ‘‘[a]ny 

pollutant that otherwise is subject to 

regulation under the Act.’’ See 40 CFR 

52.21(b)(50)(d)(iv); see also 40 CFR 

51.166(a)(49)(iv). 

In any event, EPA disagrees with the 

Commenter’s underlying premise that 

PSD requirements are not triggered for 

GHG when GHG became subject to 

regulation as of January 2, 2011. As just 

noted, this has been well-established 

and discussed in connection with prior 

EPA actions, including, most recently, 

the Johnson Memo Reconsideration and 

the Tailoring Rule. In addition, EPA’s 

November 18, 2010, proposed 

rulemaking notice provides the general 

basis for the Agency’s rationale that 

GHG, while not a NAAQS pollutant, can 

trigger PSD permitting requirements. 

The November 18, 2010, notice also 

refers the reader to the preamble to the 

Tailoring Rule for further information 

on this rationale. In that rulemaking, 

EPA addressed at length the comment 

that PSD can be triggered only by 

pollutants subject to the NAAQS and 

concluded that such an interpretation of 

the Act would contravene Congress’s 

unambiguous intent. See 75 FR 31560– 

31562. Further discussion of EPA’s 

rationale for concluding that PSD 

requirements are triggered by nonNAAQS pollutants such as GHG appears 

in the Tailoring Rule Response to 

Comments document (‘‘Prevention of 

Significant Deterioration and Title V 

GHG Tailoring Rule: EPA’s Response to 

Public Comments’’), pp. 34–41; and in 

EPA’s response to motions for a stay 

filed in the litigation concerning those 

rules (‘‘EPA’s Response to Motions for 

Stay,’’ Coalition for Responsible 

Regulation v. EPA, DC Cir. No. 09–1322 

(and consolidated cases)), at pp. 47–59, 

and are incorporated by reference here. 

These documents have been placed in 

the docket for today’s action. 

Comment 3: The Commenter 

expresses concerns regarding the 

legality of narrowing prior SIP 

approvals if states cannot interpret their 

regulations to include the Tailoring Rule 

thresholds within the phrase ‘‘subject to 

regulation.’’ 

Response 3: While EPA does not agree 

with the Commenter’s assertion that the 

narrowing approach discussed in EPA’s 

Tailoring Rule is illegal, the validity of 

the narrowing approach is irrelevant to 

the action that EPA is today taking for 

Connecticut’s February 9, 2011, SIP 

revision. EPA did not propose to narrow 

its approval of Connecticut’s SIP as part 

of this action, and in today’s final 

action, EPA is acting to approve a SIP 

revision submitted by Connecticut and 

is not otherwise narrowing its approval 

of prior submitted and approved 

provisions in the Connecticut SIP. 

Accordingly, the legality of the 

narrowing approach is not at issue in 

this rulemaking. 

Comment 4: The Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Specifically, the 

Commenter refers to the statutory 

requirements and executive orders for 

the Paperwork Reduction Act, the 

Regulatory Flexibility Act (RFA), the 

Unfunded Mandates Reform Act, and 

Executive Orders 12866 (OMB review of 

significant regulatory actions), 13175 

(tribal implications), 13211 

(economically significant regulatory 

action), and 13132 (Federalism). 

Additionally, the Commenter mentions 

that EPA has never analyzed the costs 

and benefits associated with triggering 

PSD for stationary sources in 

Connecticut, much less nationwide. 

Response 4: EPA disagrees with the 

Commenter’s statement that EPA has 

failed to meet applicable statutory and 

executive order review requirements. As 

stated in EPA’s proposed approval of 

Connecticut’s December 9, 2010 

proposed SIP revision, this action 

merely approves state law as meeting 

federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. 

Accordingly, EPA approval, in and of 

itself, does not impose any new 

information collection burden, as 

defined in 5 CFR 1320.3(b) and (c), that 

would require additional review under 

the Paperwork Reduction Act. In 

addition, this SIP approval will not have 

a significant economic impact on a 

substantial number of small entities, 

beyond that which would be required 

by the state law requirements, so a 

regulatory flexibility analysis is not 

required under the RFA. Accordingly, 

this rule is appropriately certified under 

section 605(b) of the RFA. Moreover, as 

this action 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 

mandates or significantly or uniquely 

affect small governments, such that it 

would be subject to the Unfunded 

Mandates Reform Act. 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. 

Finally, this action does not have 

federalism implications that would 

make Executive Order 13132 applicable, 

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 CAA. 

Today’s rule is a routine approval of 

a SIP revision, approving state law, and 

does not impose any requirements 

beyond those imposed by state law. To 

the extent these comments are directed 

more generally to the application of the 

statutory and executive order reviews to 

the required regulation of GHG under 

PSD programs, these comments are 

irrelevant to the approval of state law in 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 90 / Tuesday, May 10, 2011 / Rules and Regulations 26937 

today’s action. However, EPA provided 

an extensive response to similar 

comments in promulgating the Tailoring 

Rule. EPA refers the Commenter to the 

sections in the Tailoring Rule entitled 

‘‘VII. Comments on Statutory and 

Executive Order Reviews,’’ 75 FR 31601– 

31603, and ‘‘VI. What are the economic 

impacts of the final rule?,’’ 75 FR 

31595–31601. EPA also notes that 

today’s action does not in and of itself 

trigger the regulation of GHG. To the 

contrary, GHG are already being 

regulated nationally, and sources in 

Connecticut that are subject to the PSD 

program are required to obtain a permit 

from a PSD program that addresses GHG 

emissions consistent with the Act’s 

requirements. Today’s action simply 

approves existing state laws that 

provide such a PSD program. 

Comment 5: The Commenter states 

that ‘‘EPA should explicitly state in any 

final rule that the continued 

enforceability of these provisions in the 

Connecticut SIP is limited to the extent 

to which the federal requirements 

remain enforceable.’’ Further, the 

Commenter remarks on the ongoing 

litigation in the U.S. Court of Appeals 

for the DC Circuit. Specifically, 

regarding EPA’s determination that PSD 

can be triggered by GHG or is applicable 

to GHG, the Commenter mentions that 

‘‘if the DC Circuit and/or Supreme Court 

determine that EPA’s approach to 

regulating GHGs under the PSD program 

is invalid, the Connecticut rules should 

be approved in a manner that they 

would automatically sunset.’’ 

Response 5: EPA believes that it is 

most appropriate to take actions that are 

consistent with the federal regulations 

that are in place at the time the action 

is being taken. To the extent that any 

changes to federal regulations related to 

today’s action result from pending legal 

challenges or other actions, EPA will 

process appropriate SIP revisions in 

accordance with the procedures 

provided in the Act and EPA’s 

regulations. EPA notes that in an order 

dated December 10, 2010, the United 

States Court of Appeals for the DC 

Circuit denied motions to stay EPA’s 

regulatory actions related to GHG. 

Coalition for Responsible Regulation, 

Inc. v. EPA, Nos. 09–1322, 10–1073, 10– 

1092 (and consolidated cases), Slip Op. 

at 3 (D.C. Cir. December 10, 2010) (order 

denying stay motions). 

IV. What is the effect of this final 

action? 

Final approval of Connecticut’s 

February 9, 2011 SIP revision will make 

Connecticut’s SIP adequate with respect 

to PSD requirements for GHG-emitting 

sources, thereby negating the need for a 

GHG PSD FIP. Furthermore, final 

approval of Connecticut’s SIP revision 

will put in place the GHG emission 

thresholds for PSD applicability set 

forth in EPA’s Tailoring Rule (75 FR 

31514, June 3, 2010), ensuring that 

smaller GHG sources emitting less than 

these thresholds will not be subject to 

permitting requirements. Pursuant to 

section 110 of the CAA, EPA is 

approving changes made in 

Connecticut’s February 9, 2011, 

proposed SIP revision into the State’s 

SIP. 

The changes to Connecticut’s SIPapproved PSD program that EPA is 

approving today are to Connecticut’s 

rules which have been formatted to 

conform to Connecticut’s rule drafting 

standards for Sections 22a–174–1 and 

3a, but in substantive content the rules 

that address the Tailoring Rule 

provisions are the same as the federal 

rules. As part of its review of the 

Connecticut submittal, EPA performed a 

line-by-line review of Connecticut’s 

proposed SIP changes and has 

determined that the provisions that EPA 

is approving today are consistent with 

the Tailoring Rule. Furthermore, EPA 

has determined that the February 9, 

2011, revision to Connecticut’s SIP is 

consistent with section 110 of the CAA. 

See, e.g., Tailoring Rule, at 75 FR 31561. 

V. When is this action effective? 

The effective date of today’s final 

action is the date that this notice is 

published in the Federal Register. In 

accordance with 5 U.S.C. 553(d), EPA 

finds there is good cause for this action 

to become effective on the date of 

publication. The effective date upon 

publication of this notice for this action 

is authorized under 5 U.S.C. 553(d)(3), 

which allows an effective date less than 

30 days after publication ‘‘as otherwise 

provided by the agency for good cause 

found and published with the rule.’’ The 

purpose of the 30-day waiting period 

prescribed in section 553(d) is to give 

affected parties a reasonable time to 

adjust their behavior and prepare before 

the final rule takes effect. Today’s rule, 

however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule provides sources 

emitting GHG at or above the higher 

emissions thresholds with a permitting 

authority from which it can seek the 

permits which, prior to this rule, federal 

law already required them to seek, and 

relieves the sources within the State 

from considering the lower emissions 

thresholds for GHG permitting 

purposes. For these reasons, EPA finds 

good cause under 5 U.S.C. 553(d)(3) for 

this action to become effective 

immediately upon publication. 

VI. Final Action 

EPA is taking final action to approve 

the State of Connecticut’s February 9, 

2011 SIP revision, which includes 

updates to Connecticut’s air quality 

regulations, sections 22a–174–1 and 

22a–174–3a relating to PSD 

requirements for GHG-emitting sources. 

Significantly, Connecticut’s February 9, 

2011, SIP revision: (1) Provides the State 

with the authority to regulate GHG 

under its PSD program, and (2) 

establishes appropriate emissions 

thresholds for determining PSD 

applicability with respect to new or 

modified GHG-emitting sources in 

accordance with EPA’s Tailoring Rule. 

EPA has made the determination that 

the February 9, 2011 SIP revision is 

approvable because it is in accordance 

with the CAA and EPA regulations, 

including regulations pertaining to PSD 

permitting for GHG. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, 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 CAA. Accordingly, this 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 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 (Public Law 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 


emcdonald on DSK2BSOYB1PROD with RULES
26938 Federal Register / Vol. 76, No. 90 / Tuesday, May 10, 2011 / Rules and Regulations 

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 CAA; 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. 

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 action 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 CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by July 11, 2011. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action 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, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: March 15, 2011. 

For H. Curtis Spalding, 

Ira W. Leighton, 

Acting Regional Administrator, EPA New 

England. 

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 H—Connecticut 

■ 2. Section 52.370 is amended by 

adding paragraph (c)(99) to read as 

follows: 

§ 52.370 Identification of plan. 

* * * * * 

(c) * * * 

(99) Revisions to the State 

Implementation Plan submitted by the 

Connecticut Department of 

Environmental Protection on February 

9, 2011. 

(i) Incorporation by reference. (A) The 

additions of subsections (21) and (49) to 

Section 22a–174–1, effective January 28, 

2011. 

(B) The revisions to Sections 22a– 

174–3a(a)(1)(H) through (J), Sections 

22a–174–3a(d)(3)(H), Sections 22a–174– 

3a(j)(1)(E) through (I), Sections 22a– 

174–3a(k)(1) through (k)(2), and 

Sections 22a–174–3a(k)(4), effective 

January 28, 2011. 

[FR Doc. 2011–11218 Filed 5–9–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2011–0002; Internal 

Agency Docket No. FEMA–8179] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities, where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP), that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. 

DATES: Effective Dates: The effective 

date of each community’s scheduled 

suspension is the third date (‘‘Susp.’’) 

listed in the third column of the 

following tables. 

FOR FURTHER INFORMATION CONTACT: If 

you want to determine whether a 

particular community was suspended 

on the suspension date or for further 

information, contact David Stearrett, 

Mitigation Directorate, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–2953. 

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

flood insurance which is generally not 

otherwise available. In return, 

communities agree to adopt and 

administer local floodplain management 

aimed at protecting lives and new 

construction from future flooding. 

Section 1315 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4022, prohibits flood insurance 

coverage as authorized under the NFIP, 

42 U.S.C. 4001 et seq.; unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed in 

this document no longer meet that 

statutory requirement for compliance 

with program regulations, 44 CFR part 

59. Accordingly, the communities will 

be suspended on the effective date in 

the third column. As of that date, flood 

insurance will no longer be available in 

the community. However, some of these 

communities may adopt and submit the 

required documentation of legally 

enforceable floodplain management 

measures after this rule is published but 

prior to the actual suspension date. 

These communities will not be 

suspended and will continue their 

eligibility for the sale of insurance. A 

notice withdrawing the suspension of 

the communities will be published in 

the Federal Register. 

In addition, FEMA has identified the 

Special Flood Hazard Areas (SFHAs) in 

these communities by publishing a 

Flood Insurance Rate Map (FIRM). The 

date of the FIRM, if one has been 

published, is indicated in the fourth 

column of the table. No direct Federal 


emcdonald on DSK2BSOYB1PROD with RULES