39322 Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 

1See Docket No. EPA–R01–OAR–2009–0919– 

0006 and associated attachments. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2009–0919 ; A–1–FRL– 

9810–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Connecticut; Regional Haze 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a 

Connecticut State Implementation Plan 

(SIP) submittal addressing regional haze 

for the first planning period from 2008 

through 2018 that was submitted by the 

Connecticut Department of 

Environmental Protection (now known 

as Connecticut Department of Energy 

and Environmental Protection or CT 

DEEP) on November 18, 2009, and 

March 12, 2012. These submittals 

address the requirements of the Clean 

Air Act (CAA) and EPA’s rules that 

require States to prevent any future, and 

remedy any existing, manmade 

impairment of visibility in mandatory 

Class I areas caused by emissions of air 

pollutants from numerous sources 

located over a wide geographic area 

(also referred to as the regional haze 

program). States are required to assure 

reasonable progress toward the national 

goal of achieving natural visibility 

conditions in Class I areas. 

DATES: This rule is effective on August 

11, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OAR– 

2009–0919. All documents in the docket 

are listed on the www.regulations.gov 

Web site. 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 through 

www.regulations.gov or in hard copy at 

the 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 a.m. to 

4:30 p.m., excluding legal holidays. 

Copies of the documents relevant to 

this action 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 06106–1630. 

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. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

The following outline is provided to 

aid in locating information in this 

preamble. 

I. Background and Purpose 

II. Response to Comments on the March 26, 

2012 Proposed Rulemaking 

III. Response to Comments on the January 11, 

2013 Supplemental Proposed 

Rulemaking 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background and Purpose 

On March 26, 2012, (77 FR 17367), 

EPA published a Notice of Proposed 

Rulemaking for the State of Connecticut 

in which we proposed to approve a 

Connecticut State Implementation Plan 

(SIP) submittal as meeting the 

applicable requirements of the Regional 

Haze Rule found at 40 CFR 51.308 for 

the first planning period from 2008 

through 2018. The SIP had been 

submitted by CT DEEP on November 18, 

2009, with additional submittals on 

February 24, 2012 and March 12, 2012. 

In the SIP addressing regional haze 

submitted on November 18, 2009 

(‘‘Connecticut Regional Haze SIP 

Revision, Final, November 2009’’) (CT 

RH SIP),1 Connecticut chose to 

demonstrate that programs already 

developed by the State would provide 

greater reasonable progress in visibility 

improvement than source-by-source 

Best Available Retrofit Technology 

(BART). The State’s demonstration was 

made in accordance with specific 

criteria for determining if an alternative 

measure achieves greater reasonable 

progress than BART as set out in the 

Regional Haze Rule at 40 CFR 

51.308(e)(2) and (3). Connecticut’s 

Alternative to BART demonstration 

relied on three components: (1) 

Connecticut’s Regulations of 

Connecticut State Agencies (RCSA) 

Section 22a–174–19a (‘‘Control of sulfur 

dioxide emissions from power plants 

and other large stationary sources of air 

pollution’’) (Section 19a); (2) revisions 

to RCSA Section 22a–174–22 (‘‘Control 

of nitrogen oxides emissions’’) (Section 

22), including subparagraph 22a–174– 

22(e)(3); and (3) RCSA Section 22a–174– 

22c (‘‘The Clean Air Interstate Rule 

(CAIR) Nitrogen Oxides (NOX) Ozone 

Season Trading Program’’) (Section 22c). 

Section 22c implemented the NOX

trading program of the Clean Air 

Interstate Rule. At the time that 

Connecticut submitted its initial 

submission, reliance on the annual 

CAIR program in lieu of BART for 

electrical generating units (EGUs) had 

been demonstrated by EPA to achieve 

greater reasonable progress towards the 

national visibility goal than BART and 

the regional haze regulations have been 

revised to give the States the option of 

relying on CAIR to meet BART 

requirements. (70 FR 39104 (July 6, 

2005)). In its Regional Haze SIP, 

however, Connecticut did not rely on 

this demonstration by EPA but rather on 

its own State-specific demonstration. 

As discussed in greater detail in our 

March 26, 2012 proposal notice and 

later in this notice, CAIR subsequently 

was found to be inconsistent with the 

requirements of the CAA. See North 

Carolina v. EPA, 550 F.3d 1176 (D.C. 

Cir. 2008). To replace CAIR, EPA 

subsequently adopted the Cross-State 

Air Pollution Rule (CSAPR), which did 

not impose any ozone season NOX

emission limits for EGUs in 

Connecticut. To address this deficiency 

in their alternative to BART, CT DEEP 

proposed to adopt RCSA 22a–174–22d 

(Section 22d) as a replacement for 

Section 22c. Section 22d, once adopted, 

would have maintained the ozone 

season NOX emission reductions that 

were required under the CAIR program. 

On February 24, 2012, CT DEEP 

submitted a request for parallel 

processing of Section 22d. Under the 

parallel processing procedure, EPA 

proposed to take action on Section 22d 

before the State’s final adoption of the 

regulation. At that time, the EPA was 

under a consent decree to take final 

action on the Connecticut Regional Haze 

SIP by July 13, 2012. Connecticut 

indicated that they planned to have a 

final adopted regulation by June 2012, 

prior to the deadline for EPA’s final 

action. Based on the substance and the 

intended timeline for adoption of the 

proposed regulation, EPA proposed 

approval of Connecticut’s proposed 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 39323 

regulation Section 22d establishing an 

intrastate NOX trading program as a 

CAIR replacement rule as one 

component of the State’s Alternative to 

BART demonstration. Following a 

decision by the D.C. Circuit Court 

vacating the CSAPR trading programs 

that EPA had developed to replace 

CAIR, and ordering EPA to continue to 

implement CAIR, see EME Homer City 

Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 

Cir. 2012), Connecticut concluded that 

it was unable to adopt Section 22d and 

withdrew its request for parallel 

processing of the state regulation. 

On January 24, 2013 (78 FR 5158), 

EPA published a supplemental notice 

proposing approval of the Connecticut 

Alternative to BART demonstration 

based, in part, on Connecticut’s CAIR 

rule (Section 22c), as originally 

submitted by CT DEEP on November 18, 

2009. EPA proposed to approve 

Connecticut’s reliance on Section 22c as 

one component (along with Sections 19a 

and 22) of the State’s Alternative to 

BART demonstration and solicited 

comment on the State’s reliance on this 

rule in its Regional Haze SIP. 

In addition, as part of the March 26, 

2012 rulemaking, EPA proposed the 

approval of Connecticut General Statute 

(CGS) 16a–21a, ‘‘Sulfur content of home 

heating oil and off-road diesel fuel. 

Suspension of requirements for 

emergency.’’ 

II. Response to Comments on the March 

26, 2012 Proposed Rulemaking 

EPA received comments on the March 

26, 2012 proposed approval of the 

Connecticut Regional Haze SIP from the 

U.S. Forest Service and the Sierra Club. 

As Connecticut has not finalized 

Section 22d, EPA is not responding to 

comments relevant only to Section 22d. 

The following discussion summarizes 

and responds to relevant comments 

submitted by the Sierra Club. The Sierra 

Club raised concerns regarding the 

legality of BART alternatives generally 

and the means by which greater 

reasonable progress must be 

demonstrated before a BART alternative 

can be approved. The commenter also 

addressed two aspects of Connecticut’s 

BART alternative, the intrastate trading 

programs for SO2 and non-ozone-season 

NOX, upon which the current 

Connecticut Regional Haze SIP still 

relies. 

Comment 1: The Sierra Club 

commented that section 169A of the 

CAA does not allow States to adopt 

alternative programs that operate in lieu 

of source-specific BART. The Sierra 

Club acknowledged that the D.C. 

Circuit’s decisions in Center for Energy 

& Economic Development v. EPA, 298 

F.3d 653 (D.C. Cir. 2005) (‘‘CEED’’) and 

Utility Air Regulatory Group v. EPA, 471 

F.3d 1333 (D.C. Cir. 2006) (‘‘UARG’’) 

expressly upheld EPA’s allowance of 

such alternatives, but argued that these 

cases cannot be reconciled with the 

plain language of the Act. 

Response 1: EPA disagrees with the 

commenter that BART alternatives are 

impermissible under the CAA. As the 

commenter notes, EPA’s interpretation 

that the CAA allows States to devise 

alternative programs in lieu of sourcespecific BART was upheld in both the 

CEED and UARG decisions. Because the 

conclusions in these cases have not 

been upset or overturned by any 

subsequent decision of the D.C. Circuit, 

as explained in more detail in our 

response to a similar comment on EPA’s 

January 24, 2013 supplemental 

proposed rulemaking, we disagree with 

the commenter’s contention that CEED 

and UARG were decided erroneously or 

no longer have force. 

Comment 2: The Sierra Club 

commented that EPA’s regulations 

require a State seeking to rely on a 

BART alternative to include sourcespecific BART analyses in its SIP for 

each subject-to-BART source in the 

State and each source that is included 

in its BART alternative. Accordingly, 

because Connecticut did not include 

any source-specific BART analyses in its 

Regional Haze SIP, the Sierra Club 

contends that Connecticut’s BART 

alternative is not approvable. 

Response 2: EPA disagrees. The 

Regional Haze Rule requires States 

opting to implement an alternative 

program in lieu of BART to make a 

demonstration that the alternative will 

result in greater reasonable progress 

than would have resulted under sourcespecific BART. 40 CFR 51.308(e)(2)(i). 

To make such a demonstration, the State 

must compare the emission reductions 

that will likely be achieved by the BART 

alternative against a BART benchmark. 

The BART benchmark may be derived 

by conducting a five-factor BART 

analysis ‘‘for each source subject to 

BART and covered by the alternative 

program.’’ 40 CFR 51.308(e)(2)(i)(C) 

(emphasis added). Contrary to the 

commenter’s suggestion, however, this 

language does not require a State to 

conduct a BART analysis for each 

source that is subject to BART within 

the State and for each source that is 

included in the BART alternative. Such 

a disjunctive reading would lead to a 

situation in which the BART benchmark 

would include emissions reductions 

from sources not subject to the BART 

requirements, which was clearly not 

EPA’s intent. See, e.g.,71 FR 60612, 

60619 (October 13, 2006). Rather, 40 

CFR 51.308(e)(2)(i)(C) requires the State 

to conduct BART analyses only for 

those sources that are both subject to 

BART and included in the BART 

alternative. Under this natural 

(conjunctive) reading of the provision, 

the BART benchmark includes only 

those sources that would have required 

BART controls but for the creation of 

the alternative program. 

We also note that Connecticut was not 

required to undertake any sourcespecific BART determinations in 

establishing a BART benchmark. As we 

noted in the preamble to the Regional 

Haze Rule, ‘‘[t]he States . . . have 

flexibility in developing a method to 

determine the emission reductions that 

could be achieved through the 

application of BART.’’ 64 FR 35714, 

35742. Thus, in situations where the 

BART alternative ‘‘has been designed 

primarily to meet a Federal or State 

requirement other than BART, a State 

can use a more simplified approach to 

demonstrating that the alternative 

program will make greater reasonable 

progress than BART.’’ 71 FR 60612, 

60615; see also 40 CFR 51.308(e)(2)(i)(C) 

(if a State’s ‘‘alternative measure has 

been designed to meet a requirement 

other than BART,’’ then a State need not 

conduct source-by-source BART 

analyses to establish the BART 

benchmark). One such simplified 

approach specifically recommended by 

EPA in past rulemakings is for States to 

establish a BART benchmark based on 

the presumptive emission limits for 

EGUs contained in the BART 

Guidelines. See 71 FR 60612, 60619. 

Here, Connecticut’s BART alternative 

consists of Section 19a (control of SO2

emissions from power plants and other 

large stationary sources), Section 22 

(control of NOX emissions from similar 

sources, including intrastate emission 

trading applicable outside the ozone 

season), and Section 22c (CAIR NOX

Ozone Season Program), all three of 

which were developed to satisfy other 

air quality requirements. Therefore, 

consistent with EPA’s regulations, 

Connecticut was not required to perform 

a five-factor BART analysis for any of its 

sources when setting its BART 

benchmark, but could opt instead for a 

simplified approach, such as one that 

relied upon presumptive emission 

limits. 

Comment 3: The Sierra Club 

commented that Connecticut 

impermissibly compared the SO2

reductions that would be achieved by its 

BART alternative to the reductions 

associated with presumptive BART 

limits developed by the Mid-Atlantic/

Northeast Visibility Union (MANE–VU). 

The Sierra Club argued that the MANE– 


tkelley on DSK3SPTVN1PROD with RULES
39324 Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 

VU presumptive limits underestimated 

the reductions that sources would 

achieve if they were subject to limits 

derived from a thorough five-factor 

analysis. Therefore, the Sierra Club 

concluded that Connecticut did not 

conclusively show that its BART 

alternative would provide greater 

reasonable progress than source-specific 

BART. 

Response 3: As explained above, EPA 

has specifically endorsed the use of 

presumptive limits in setting a BART 

benchmark in situations such as this 

one. In referring to the presumptive 

limits for EGUs contained in the BART 

Guidelines, EPA previously stated that 

‘‘the presumptions represent a 

reasonable estimate of a stringent case 

BART, particularly because in 

developing a BART benchmark they 

would be applied across the board to a 

wide variety of units with varying 

impacts on visibility, at power plants of 

varying size and distance from Class I 

areas.’’ 71 FR 60612, 60619. In other 

words, while in some instances 

conducting a case-by-case BART 

analysis based on the five factors could 

result in limits more stringent than the 

presumptive limits, in others instances 

a five-factor analysis could result in 

limits less stringent than the 

presumptive limits (including no 

additional controls at all). Because these 

differences are likely to balance out, it 

is reasonable for a State that is entitled 

to follow a simplified approach, such as 

Connecticut, to use presumptive limits 

in setting its BART benchmark. Here, 

Connecticut chose to use MANE–VU’s 

presumptive limits, which are more 

stringent than those contained in the 

BART Guidelines. Consequently, EPA is 

satisfied that Connecticut’s Regional 

Haze SIP adequately demonstrated that 

the State’s BART alternative will 

provide for greater reasonable progress 

than source-specific BART. 

Comment 4: The Sierra Club 

commented that, even when using the 

MANE–VU presumptive limits as the 

point of comparison, Connecticut failed 

to demonstrate that its BART alternative 

would result in greater reasonable 

progress than source-specific BART. For 

both SO2 and NOX, the Sierra Club 

argued that Connecticut impermissibly 

compared the emission reductions from 

all 59 sources covered by its BART 

alternative against the reductions that 

would be achieved by the much smaller 

set of seven subject-to-BART sources. In 

the case of NOX, the Sierra Club further 

contended that, even under the State’s 

flawed comparison, the evidence still 

showed that the reductions associated 

with requiring source-specific BART at 

the seven subject-to-BART sources 

would exceed the reductions at all 59 

sources covered by the BART 

alternative. The Sierra Club also argued 

that three additional factors cited by 

Connecticut in its weight-of-evidence 

analysis—mandatory retirement of 

emission reduction credits, the addition 

of Exeter Energy to the State’s CAIR 

budget, and the State’s CAIR allowance 

allocation methodology—were 

insufficient to prove that the State’s 

BART alternative would achieve greater 

reasonable progress. Finally, the Sierra 

Club reiterated that it would not be 

onerous for Connecticut to determine 

the appropriate level of BART control 

for each subject-to-BART source in 

setting its BART benchmark. 

Response 4: EPA again disagrees with 

the commenter’s strained reading of the 

Regional Haze Rule. As we stated in our 

response to comment 2, 40 CFR 

51.308(e)(2)(i)(C) does not require States 

to undertake the task of conducting 

BART analyses for sources that could 

never be subject to BART controls in the 

first place. Rather, the BART benchmark 

should consist only of the emissions 

from those sources that are both subject 

to BART and included in the alternative 

program. This ensures that the 

benchmark does not include reductions 

from any subject-to-BART sources in the 

State that will not participate in the 

alternative program and therefore will 

still be required to install BART. Thus, 

Connecticut was correct to include in its 

BART benchmark only the emissions 

from the seven sources that were both 

subject to BART and included within 

the scope of its BART alternative. 

Moreover, States are permitted to 

include sources in an alternative 

program that are not otherwise BARTeligible in order to ensure that the 

program results in enough emission 

reductions to result in greater 

reasonable progress than source-specific 

BART. Consequently, EPA disagrees 

with the notion that Connecticut 

impermissibly conducted an ‘‘apples-tooranges’’ comparison by including more 

sources in its BART alternative than 

would have been subject to control 

under source-specific BART. 

EPA also disagrees with the Sierra 

Club’s arguments regarding the weightof-evidence analysis. It is important to 

note that EPA’s weight-of-evidence 

analysis for NOX draws upon, but is not 

identical to, Connecticut’s analysis. 

Compare 77 FR at 17,377 with id. at 

17,378–79. 

The uncertainty in Connecticut’s NOX

analysis derives from the fact that, for 

the BART benchmark, Connecticut 

estimated a range of NOX emissions 

reductions between 3,120 tpy and 

17,853 tpy. See 77 FR at 17,378 (Table 

7); CT RH SIP at 9–34 (Table 9–16). The 

lower end of this range (3,120 tpy) 

resulted from imposition of the least 

stringent emission limits in the MANE– 

VU recommended range at every single 

BART-eligible source. Conversely, the 

upper end of the range (17,853 tpy) 

resulted from imposition of the most 

stringent emission limits in the MANE– 

VU recommended range at every single 

BART-eligible source. 

EPA’s weight-of- evidence approach 

acknowledges that it is not realistic to 

expect that source-specific BART 

determinations would result in 

imposition of the most stringent 

controls recommended by MANE–VU at 

each one of Connecticut’s BART-eligible 

sources. See 77 FR at 17,378–79 for 

detailed discussion. Given the 

unlikelihood of this scenario, EPA 

considers it reasonable to conclude that 

the appropriate BART benchmark is 

considerably less than 17,853 tpy of 

reductions, and, in fact, less than 11,355 

tpy of reductions (i.e., the amount 

attributable to Connecticut’s BART 

alternative). 

Furthermore, Connecticut’s BART 

alternative can reasonably be expected 

to result in additional emissions 

reductions (if difficult to precisely 

quantify) that will occur as a 

consequence of the required reductions. 

First, the firm cap during ozone season 

impedes emissions growth during nonozone season, while the restriction to 

intrastate trading during non-ozone 

season impedes emissions growth 

during ozone season. See id. at 17,379 

and further discussion in Response 10. 

Second, Connecticut’s CAIR allowance 

methodology (which allocates 

allowances based on electricity output, 

rather than heat input) can also 

reasonably be expected to result in 

actual reductions, not just a change in 

distribution. In a region like New 

England with a restructured electricity 

market, the least efficient generators are 

dispatched the least often, and under 

Connecticut’s allocation scheme, units 

that run less often receive fewer CAIR 

allowances. Thus, the least efficient 

generators tend to generate less 

electricity in the first place and 

therefore receive fewer CAIR 

allowances, yet require more CAIR 

allowances for a given quantity of 

electric output. This tends to result in 

the least efficient sources operating less 

often, investing in controls, or 

repowering, and/or the more efficient 

sources over-controlling for the purpose 

of generating marketable allowances. 

While Connecticut has not modeled 

either of these effects quantitatively, 

they are likely to account for some 

additional reductions. Moreover, as 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 39325 

2EPA and other parties filed petitions for a writ 

of certiorari of the decision in EME Homer City with 

the Supreme Court on March 29, 2013. 

further discussed in Response 10, actual 

NOX emissions are well below even the 

low end of the BART benchmark. 

Comment 5: The Sierra Club 

commented that Connecticut has not 

demonstrated that the SO2 and NOX

emission reductions relied upon in its 

BART alternative are surplus as 

required by the Regional Haze Rule. The 

Sierra Club contended that only the 

portion of the emission reductions that 

are surplus to what would otherwise be 

required to comply with the Clean Air 

Act may be credited to Connecticut’s 

BART alternative. 

Response 5: EPA disagrees that 

Connecticut has failed to show that the 

reductions it relied upon are surplus. To 

show that a BART alternative will 

achieve greater reasonable progress, the 

State must include in its SIP a 

‘‘demonstration that the emission 

reductions resulting from the [BART 

alternative] will be surplus to those 

reductions resulting from measures 

adopted to meet requirements of the 

CAA as of the baseline date of the SIP.’’ 

40 CFR 51.308(e)(2)(iv) (emphasis 

added). In promulgating the Regional 

Haze Rule in 1999, we explained that 

the ‘‘baseline date of the SIP’’ in this 

context means ‘‘the date of the 

emissions inventories on which the SIP 

relies,’’ 64 FR 35714, 35742, which is 

‘‘defined as 2002 for regional haze 

purposes,’’ 70 FR 39104, 39143. Any 

measure adopted after 2002 is 

accordingly ‘‘surplus’’ under 40 CFR 

51.308(e)(2)(iv). Therefore, we believe 

that Connecticut’s Regional Haze SIP 

adequately demonstrates that the 

reductions from the State’s BART 

alternative, which consists entirely of 

regulations enacted after 2002, are 

properly considered surplus emission 

reductions for this purpose. 

Comment 6: The Sierra Club 

commented that Connecticut must 

carefully scrutinize wet- and dryscrubber technology and selective and 

non-selective catalytic reduction for 

Bridgeport Harbor Station Unit 3. The 

Sierra Club provided cost data and 

stated that the cost-effectiveness of such 

controls is reasonable. 

Response 6: EPA disagrees that 

Connecticut was required to conduct a 

source-specific BART determination for 

Bridgeport Harbor Station Unit 3, 

regardless of the cost-effectiveness of 

additional controls. As discussed above 

in the response to comment 3, 

Connecticut was entitled to rely upon 

the presumptive BART limits 

established by MANE–VU in setting its 

BART benchmark. Therefore, no fivefactor analysis, including an exploration 

of the costs of specific control 

technologies, was required for 

Bridgeport Harbor Station Unit 3 or any 

other BART-eligible unit. 

III. Response to Comments on the 

January 11, 2013 Supplemental 

Proposed Rulemaking 

In regard to the January 11, 2013 

supplemental proposed rulemaking, 

EPA received comments from the Utility 

Air Regulatory Group (UARG) and a 

joint letter from Sierra Club, Earth 

Justice, and National Parks Conservation 

Association (for brevity referred to in 

the singular as, ‘‘Sierra Club’’). The 

UARG comments encouraged States to 

take into account CAIR-related emission 

reductions when developing and 

submitting Regional Haze SIPs, 

including the BART provisions. UARG 

stated that EPA should finalize the 

supplemental proposal and approve 

Connecticut’s Regional Haze SIP in full. 

The following discussion summarizes 

and responds to the relevant adverse 

comments submitted by the Sierra Club 

on EPA’s supplemental proposed 

approval of Connecticut’s Regional Haze 

SIP. 

Comment 7: The Sierra Club 

commented that because all elements of 

any SIP approved by EPA must be 

enforceable, EPA cannot approve the 

Connecticut SIP to the extent it relies on 

CAIR. The commenter argued that in 

light of the remand of the rule by the 

D.C. Circuit in North Carolina, CAIR is 

neither permanent nor enforceable. 

Sierra Club also stated that EPA has 

recognized that CAIR is temporary on a 

number of occasions and noted that 

most of EPA’s actions to date 

implicating CAIR reflect that EPA can 

only rely on CAIR in a limited fashion, 

namely ‘‘to temporarily preserve the 

environmental values covered by CAIR 

pending EPA’s development and 

promulgation of a replacement rule that 

remedies CAIR’s flaws.’’ The commenter 

also noted that in the ‘‘Cross-State Air 

Pollution Rule (CSAPR) is Better than 

BART’’ rulemaking, which was issued 

after the EME Homer City court stayed 

CSAPR pending review, EPA found that 

CAIR was in place only temporarily and 

that the Agency could not fully approve 

Regional Haze SIPs that relied on the 

now-temporary reductions from CAIR. 

The commenter further argues that even 

if the emission reductions from CAIR 

were sufficiently permanent to be used 

in the 10-year initial planning period of 

the Connecticut SIP, there is no 

guarantee that any replacement rule for 

CAIR will require the same emission 

reductions for Connecticut. 

Response 7: EPA agrees that all 

control measures in a SIP must be 

enforceable. See CAA 110(a)(2)(A). EPA 

disagrees, however, that CAIR is not 

enforceable at this time, given the scope 

of the court’s order in EME Homer City 

and the issuance of the mandate in that 

case. 

On May 12, 2005, EPA published 

CAIR, which requires significant 

reductions in emissions of SO2 and NOX

from EGUs to limit the interstate 

transport of these pollutants and the 

ozone and fine particulate matter they 

form secondarily in the atmosphere. See 

76 FR 70093. The D.C. Circuit initially 

vacated CAIR, North Carolina v. EPA, 

531 F.3d 896 (D.C. Cir. 2008), but 

ultimately remanded the rule to EPA 

without vacatur to preserve the 

environmental benefits provided by 

CAIR, North Carolina v. EPA, 550 F.3d 

1176, 1178 (D.C. Cir. 2008). In response 

to the court’s decision, EPA issued 

CSAPR to address the interstate 

transport of NOX and SO2 in the eastern 

United States. See 76 FR 48208 (August 

8, 2011). 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 . . . development of a valid 

replacement.’’ EME Homer City 

Generation, 696 F.3d at 38.2

This directive from the D.C. Circuit in 

EME Homer City ensures that the 

reductions associated with CAIR will be 

enforceable and in place for a number 

of years. 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 removed from a 

SIP as an enforceable measure until 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. 

In the meantime, neither the State nor 

EPA has taken any final action to 

remove CAIR from the Connecticut SIP. 

These SIP provisions remain in place 

and are federally enforceable. 

Further, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the D.C. Circuit emphasized that 

the consequences of vacating CAIR 

‘‘might be more severe now in light of 

the reliance interests accumulated over 

the intervening four years.’’ EME Homer 


tkelley on DSK3SPTVN1PROD with RULES
39326 Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 

3On August 21, 2012, the D.C. Circuit issued an 

opinion to vacate CSAPR and keep CAIR in place 

pending promulgation of a valid replacement rule. 

However, the court also ordered the Clerk to 

withhold issuance of the mandate until seven days 

after disposition of any timely petition for rehearing 

or rehearing en banc. All petitions for rehearing 

were denied on January 24, 2013 and the mandate 

was issued by the D.C. Circuit on February 4, 2013. 

As noted above EPA and other parties subsequently 

filed petitions seeking Supreme Court review of the 

D.C. Circuit decision. 

4Furthermore, in the regulation at issue in NRDC, 

states could rely on NOX SIP Call or CAIR 

reductions without providing any analysis 

demonstrating how compliance with those 

programs would result in required reductions 

within each nonattainment area, and EPA had not 

provided any technical analysis to that effect either. 

See NRDC, 571 F.3d at 1256–57. That distinguishes 

NRDC from the issues here. As noted above, we are 

approving Connecticut’s Regional Haze SIP under 

40 CFR 51.308(e)(2), not section 51.308(e)(4). 

City, 696 F.3d at 38. The accumulated 

reliance interests include the interests of 

States who reasonably assumed they 

could rely on reductions associated with 

CAIR to meet the requirements of the 

Regional Haze Rule. 

The proposed and final EPA actions 

cited by the commenter as support for 

its argument that EPA has considered 

CAIR to be temporary all pre-date the 

vacatur of CSAPR and were based on 

EPA’s expectation that CSAPR was the 

replacement for CAIR, and thus CAIR 

would end soon.3 At the time of those 

actions, CAIR was reasonably expected 

to sunset by operation of law in a fairly 

short timeframe. That background 

assumption no longer applies. Based on 

the vacatur of CSAPR and the court’s 

related decision to keep CAIR in force, 

EPA believes that it is appropriate at 

this time to rely on CAIR emission 

reductions as one component of the 

Connecticut Alternative to BART 

demonstration while a valid 

replacement rule is developed and until 

implementation plans complying with 

any such new rule are submitted by the 

States and acted upon by EPA or until 

the EME Homer City case is resolved in 

a way that provides different direction 

regarding CAIR and CSAPR. 

As noted above, the commenter also 

argues that even if the emission 

reductions from CAIR were sufficiently 

permanent to be used in the first 

planning period of the Connecticut 

Regional Haze SIP, it is unclear what 

emissions reductions would be required 

in a future replacement rule for CAIR. 

The commenter is correct in that we do 

not know at this time what will be 

required of Connecticut in any 

replacement rule for CAIR. The 

uncertainty surrounding the 

requirements of a future replacement 

rule, however, does not mandate that 

source-by-source BART determinations 

be required today. For now, the 

Connecticut Regional Haze SIP 

addressed in today’s action ensures that 

while CAIR is in place, the BART 

requirements will be met. The adequacy 

of the Connecticut Regional Haze SIP to 

address the BART requirements in the 

future will be better addressed when a 

replacement rule for CAIR has been 

promulgated and the Connecticut SIP 

revised to comply with that rule. This 

does not mean that the BART 

requirements will be later ignored. 

When Connecticut submits a SIP 

revision to remove Section 22c, either in 

response to an EPA replacement rule or 

for other purposes, the State will be 

required to demonstrate that such a SIP 

revision ensures that the BART 

requirements are met. See CAA § 110(l). 

EPA would then review the State action, 

submit its initial determination for 

public comment, and take final action 

after responding to significant public 

comments. This multi-step sequence of 

events will afford adequate opportunity 

to review the adequacy of Connecticut’s 

approved Regional Haze SIP under the 

applicable legal framework at the time 

of removal of Section 22c. In sum, we 

do not agree with the commenter that 

the uncertainty surrounding the timing 

and contours of a replacement rule 

mandate that Connecticut undertake a 

source specific NOX BART 

determination for its EGUs now rather at 

a later date when the current regulatory 

uncertainties have been resolved. 

Comment 8: The commenter argues 

that EPA cannot approve Connecticut’s 

proposal to rely on CAIR to satisfy its 

obligation to control NOX at BART 

sources. The Sierra Club states that EPA 

must require BART determinations at all 

subject-to-BART sources. The 

commenter states that there is no 

statutory authority for EPA to allow a 

State to rely on CAIR as a better-thanBART alternative and that the force of 

the holdings in Center for Energy & 

Economic Dev. v. EPA, 398 F.3d 653 

(D.C. Cir. 2005) and Utility Air 

Regulatory Group v. EPA, 471 F.3d 

1333, 1340 (D.C. Cir. 2006) allowing 

EPA to do just that have been 

undermined by subsequent decisions of 

the D.C. Circuit. The commenter cite to 

several cases to support the argument 

that the CAA does not allow EPA to 

waive the statutory mandate for BART 

at ‘‘each’’ BART-eligible source. 

Response 8: It is important to 

emphasize that Connecticut’s Regional 

Haze SIP submission does not rely on 40 

CFR 51.308(e)(4), sometimes known as 

the ‘‘CAIR equals BART’’ provision, 

which was at issue in UARG and which 

permits States to rely on CAIR in lieu 

of BART without any further analysis. 

Rather, Connecticut’s submission relies 

on 40 CFR 51.308(e)(2), the ‘‘Alternative 

to BART’’ or ‘‘Better than BART’’ 

provision, which was at issue in CEED 

and which does require an analysis that 

the alternative measures will achieve 

greater reductions than source-by-source 

BART. See id. § 51.308(e)(2)(i). CT DEEP 

has submitted a combination of 

regulations (Sections 19a, 22, and 22c), 

and an appropriate analysis 

demonstrating that reductions will be 

superior to those from source-by-source 

BART, as part of its Alternative to BART 

package. See CT RH SIP, at 9–28 to 9– 

35; see also 77 FR at 17,373–17,380. 

Because of the complex history of this 

action, and to avoid any confusion, we 

emphasize that we are approving 

Connecticut’s Regional Haze SIP under 

40 CFR 51.308(e)(2), not section 

51.308(e)(4). 

The commenter’s arguments that the 

plain language of the CAA precludes 

use of alternative programs (including 

but not limited to CAIR) to satisfy the 

BART requirements were raised and 

rejected in CEED and UARG. CEED and 

UARG remain good law and have not 

been questioned by subsequent D.C. 

Circuit decisions. The decisions cited by 

the commenter, North Carolina v. EPA, 

531 F.3d 896, 906–08 (D.C. Cir. 2008) 

and NRDC v. EPA, 571 F.3d 1245, 1255– 

58 (D.C. Cir. 2009) address the 

requirements of sections 

110(a)(2)(D)(i)(I) and 172(c)(1), 

respectively. Given the differences 

between the language of these statutory 

provisions and that of section 

169A(b)(2), the courts’ interpretation of 

these other provisions of the CAA do 

not undermine the two previous rulings 

of the same court interpreting the 

visibility provisions of the Act.4

Similarly, the Supreme Court’s 

conclusions in Massachusetts v. EPA, 

549 U.S. 497, 528–29 (2007) regarding 

the meanings of ‘‘each’’ and ‘‘any’’ do 

not conflict with or impact the EPA’s 

reading of section 169A(b)(2) of the 

CAA or the D.C. Circuit’s conclusion 

that the agency’s interpretation of the 

statute is a reasonable one. As the CEED 

court explained, EPA interprets this 

provision to mean that ‘‘each SIP’s 

‘emission limits, schedules of 

compliance, and other measures’ must 

‘include’ BART only ‘as may be 

necessary to make reasonable progress 

toward’ national visibility goals.’’ 398 

F.3d 653, quoting 42 U.S.C. 7491(b)(2); 

see also Central Arizona Water 

Conservation District v. EPA, 990 F.2d 

1531, 1543 (9th Cir. 1993) (upholding 

the same interpretation of section 

169A(b)(2)). We do not agree, therefore, 

that 40 CFR 51.308(e)(2), EPA’s 

regulation allowing for the use of 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 39327 

5 2011 NOX emission data from the Connecticut 

BART-identified EGUs is from the EPA Air Markets 

Program (http://ampd.epa.gov/ampd/). 

alternative regulatory programs instead 

of source-specific BART determinations, 

is inconsistent with the CAA. 

Comment 9: The Sierra Club 

commented that CAIR cannot be used as 

a substitute for BART because it 

provides inadequate visibility 

improvement. The commenter states 

that the visibility impacts at the Class I 

areas occur on a much shorter time 

frame than the annual or seasonal CAIR 

allocations. The commenter finds that 

the shorter averaging times for BART 

provides a more stringent, more 

protective limit than CAIR’s allocations. 

The commenter states that appropriately 

averaged limits should be required even 

if new controls are not required. 

Response 9: For a State which opts to 

pursue an Alternative to BART 

demonstration, the State must develop 

an analysis of the best system of 

continuous emission control technology 

available and associated emission 

reductions achievable for BART-eligible 

sources within the State subject to the 

alternative plan. The expected emission 

reductions must be compared to an 

analysis of the projected emission 

reductions achievable through the 

alternative measure. When crafting the 

alternative measures, States are not 

required to revise the emission limit to 

meet each unit’s emission capability. In 

addition, the Regional Haze Rule does 

not limit the averaging period of the 

alternative measure. As the commenter 

suggested, visibility impairment can 

happen on a much shorter period (24- 

hour time period) than a seasonal limit, 

and thus the commenter suggests that a 

shorter averaging time would result in 

better visibility improvement. We 

disagree that a difference in averaging 

time would affect our conclusions that 

CAIR, in combination with the other 

emission limits in the Connecticut 

Regional Haze SIP, provides for greater 

reasonable progress than BART. The 

visibility evaluation required by the 

Regional Haze Rule requires States to 

evaluate visibility for the 20-percent 

best and 20-percent worst days. While 

EPA collects samples at the IMPROVE 

monitoring sites over a 24-hour time 

period, none of the visibility program 

requirements are based on these 24-hour 

peaks. Both the 20-percent best days 

and 20-percent worst days represent a 

relatively long time period, that is an 

average over one-fifth of the year, or 73 

days. Because this is a relatively long 

time period, and even though it may be 

discontinuous, it tends to ‘‘smooth out’’ 

any variations that would occur over a 

shorter time period. Similarly, even a 

shorter 30-day rolling average BART 

limit represents a relatively long time 

period that would also tend to smooth 

out any spikes that may occur over a 

day. Thus, while a seasonal (in this case 

5-month) emission limit may also 

smooth out the occasional high 

emission day, the longer averaging 

period will still provide visibility 

protection for the Class I area. 

In addition, as allowed under 40 CFR 

51.308(e)(2)(i)(C), the components of the 

Connecticut Alternative to BART were 

developed to meet other regulatory 

requirements. For example, the ozone 

season NOX limits in Sections 22 and 

22c were designed to meet the ozone 

National Ambient Air Quality Standard 

(NAAQS), an 8-hour average standard, 

which ensures that the emission limit 

will be consistently met. 

Comment 10: The Sierra Club 

commented that the averaging time for 

the non-ozone season limitations consist 

entirely of a 0.15 lb/MMBtu NOX

emission limit applicable as averaged 

over the entire non-ozone season. Again, 

the Sierra Club contends that this limit 

does not provide the same averaging 

time protections as would a BART limit. 

Furthermore, the commenter continued, 

although it is not evident from EPA’s 

discussion, most of the BART-eligible 

units regularly emit well above this nonozone season limit, presumably taking 

advantage of Connecticut’s application 

of emission credits. As EPA’s original 

proposal acknowledges, there is no firm 

year-round cap on EGUs emissions 

which would be required of the BARTeligible units. 

Response 10: While Connecticut’s 

non-ozone season limits do not provide 

a firm year-round emission cap on each 

unit, a facility which exceeds the 0.15 

lb/MMBtu limit can only use intrastate 

trading to meet its NOX emission 

obligation. As a result, the emission 

reductions come from within the State, 

a similar geographic area. Moreover, as 

we noted in the NPR, ‘‘the firm cap 

during ozone season acts as an 

impediment to emissions growth during 

nonozone season.’’ 77 FR at 17379. This 

relationship works in both directions: 

The fact that Connecticut imposes a 0.15 

lb/MMBtu NOX limit during October 

through April, and allows only 

intrastate trading for facilities that 

exceed that limit, limits facilities’ ability 

to emit above their CAIR allocations and 

comply with Section 22c simply by 

purchasing out-of-state allowances. 

Data regarding actual emissions 

supports the argument that 

Connecticut’s alternative program 

allows for facility flexibility while 

achieving emission reductions. The 

actual 2002 baseline NOX emissions 

from the BART-identified sources were 

4,054 tons of NOX. The 2011 actual NOX

emissions from these sources under the 

Connecticut Alternative to BART are 

557 tons.5 These 2011 actual NOX

emissions are an order of magnitude 

lower than even the low-end projected 

2006 BART benchmark emissions (9,701 

tons) for these same sources. 

Comment 11: The commenter suggests 

that the visibility impacts from several 

of the BART-eligible units are not, as 

EPA has described them, minimal. First, 

it is not clear that the submitted 

modeling actually reflects the 24-hour 

maximum emission input required by 

the BART Guidelines; therefore, the 

modeling may underestimate the 

visibility impacts. The commenter notes 

that Mid-Atlantic/Northeast Visibility 

Union (‘‘MANE–VU’’) has determined 

that 98 percent of visibility deterioration 

at Class I areas in its region came from 

sources with impacts between 0.2 and 

0.3 deciviews (dv), based on the existing 

modeling, and at least one of 

Connecticut’s BART-eligible units has 

that level of impact from its NOX

emissions. The Sierra Club emphasized 

that the exact purpose of the regional 

haze program is to reduce the 

cumulative impacts from multiple 

sources. For this reason, the Sierra Club 

commented that source-by-source 

analysis of the costs and benefits of 

additional retrofit technology and yearround lower limits with appropriate 

averaging time is required. 

Response 11: We disagree with the 

conclusions the commenter draws from 

the MANE–VU report entitled ‘‘FiveFactor Analysis of BART-Eligible 

Sources,’’ Attachment W to 

Connecticut’s SIP submission. 

The purpose of the modeling 

discussed in Attachment W, as the title 

suggests, is to support a five-factor 

analysis for MANE–VU’s recommended 

BART controls. EPA agrees that MANE– 

VU’s modeling does not adhere to the 

requirements of the BART Guidelines 

for determining an appropriate 

threshold for exempting BART-eligible 

sources from further analysis for BART; 

however, this modeling was not done 

for exemption purposes, but rather to 

inform the decision making process for 

developing MANE–VU’s recommended 

BART controls. In this context, EPA is 

not considering MANE–VU’s modeling 

under 40 CFR part 51 Appendix Y (the 

BART Guidelines), but rather under 40 

CFR 51.308(e)(2)(i)(C)’s requirement to 

establish a BART benchmark for 

comparison to an alternative program. 

While it is true that the purpose of the 

regional haze program as a whole is to 

reduce the cumulative impacts from 


tkelley on DSK3SPTVN1PROD with RULES
39328 Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 

6The highest visibility impacts due to NOX were 

modeled to be: 0.31 dv from Bridgeport Harbor Unit 

3, 0.14 dv from New Haven Harbor Unit 1, 0.06 dv 

from Middletown Unit 3, 0.04 dv from Montville 

Unit 6, 0.03 dv from Middletown Unit 4, 0.03 dv 

from Cascade Boxboard, and 0.01 dv from Norwalk 

Unit 2. 

multiple sources, even a source-specific 

BART determination includes 

consideration of ‘‘the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology.’’ 40 CFR 

51.308(e)(1)(ii)(A). EPA’s BART 

Guidelines allow States conducting 

source-by-source BART determinations 

to exempt sources with visibility 

impacts as high as 0.5 dv. See 40 CFR 

part 51 Appendix Y § III.A.1. 

As part of its analysis, MANE–VU 

attempted to assess which sources had 

the greatest impact on visibility, in 

accordance with 40 CFR 

51.308(e)(1)(ii)(A). However, MANE–VU 

decided to take a more stringent 

approach than the BART Guidelines’ 0.5 

dv threshold. See Attachment W at 14. 

The report states that ‘‘the cumulative 

frequency visibility impact from all 

MANE–VU BART-eligible sources 

corresponds to a maximum 24-hr impact 

of 0.22 dv from the NWS [National 

Weather Service]-driven data and 0.29 

dv from the MM5 [PSU/NCAR 

mesoscale model] data.’’ Attachment W 

at 13–14. Based on these results, 

MANE–VU concluded that a range of 

0.2 to 0.3 dv would represent a 

‘‘‘significant’ impact at MANE–VU Class 

I areas on an average basis.’’ Id. at 14. 

However, as the report stipulates, the 

analysis only included BART-eligible 

units within the MANE–VU area, 

excluding all other BART sources 

outside of the MANE–VU area, a 

limitation noted by the report. See id. at 

13. Therefore, for purposes of 

developing its recommended BART 

controls, MANE–VU ‘‘decided to place 

increased weight on sources with an 

individual visibility impact greater than 

0.1 dv for this 1st order regional 5-factor 

analysis.’’ Id. at 14. As MANE–VU 

noted, ‘‘[t]his threshold is overly 

inclusive relative to exemption 

processes being conducted by other 

[Regional Planning Organizations] 

RPOs, but still provides MANE–VU 

states flexibility in choosing the weight 

to be given to the first of the five factors 

considered (i.e., the degree of visibility 

improvement that could result from 

BART).’’ Id. 

Only two of the BART-eligible sources 

in Connecticut have more than a 0.1 dv 

impact from NOX, and only one source 

exceeds a 0.2 dv impact; the rest show 

impacts far less than these levels.6 It is, 

of course, possible that a source-specific 

BART analysis at one or both of these 

units exceeding 0.1 dv impact would 

result in a more stringent BART limit at 

those particular units than apply under 

Connecticut’s alternative program. 

However, it is also possible that full 

consideration of the other four factors 

would lead to less stringent limits than 

apply under Connecticut’s alternative 

program. Moreover, it is also quite 

possibly (indeed, likely) that full 

consideration of the five factors would 

result in less stringent limits at the other 

five BART-eligible units (with impacts 

well below 0.1 dv) than apply under 

Connecticut’s alternative program. Most 

importantly, and central to both 

Connecticut’s and EPA’s analyses, it is 

also very likely that source-by-source 

BART would result in fewer total 

emissions reductions (and therefore 

visibility improvements) than apply 

under Connecticut’s alternative 

program. Thus, while any one particular 

source might have higher or lower 

emissions limits under source-by-source 

BART (as opposed to Connecticut’s 

alternative program), as a whole, EPA 

does not agree that source-by-source 

BART would necessarily result in more 

stringent controls on the BART-eligible 

sources (let alone the non-BART-eligible 

sources) as a group. 

VI. Final Action 

EPA is approving Connecticut’s 

November 18, 2009, Regional Haze SIP 

submittal and March 12, 2012, 

supplemental submittal as meeting the 

applicable requirements of the Regional 

Haze Rule found in 40 CFR 51.308. In 

addition, EPA is approving 

Connecticut’s RCSA Section 22a–174– 

19a, ‘‘Control of sulfur dioxide 

emissions from power plants and other 

large stationary sources of air 

pollution’’; revisions to RCSA Section 

22a–174–22, ‘‘Control of nitrogen oxides 

emissions,’’ in particular subparagraph 

22a–174–22(e)(3); and CGS 16a–21a, 

‘‘Sulfur content of home heating oil and 

off-road diesel fuel. Suspension of 

requirements for emergency.’’ 

IV. 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 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 (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 

it does not include measurement 

standards; 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 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 39329 

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 September 8, 

2014. 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, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: April 26, 2013. 

Ira W. Leighton, 

Acting Regional Administrator, EPA Region 

1. 

Original signature affirmed by: 

Dated: May 27, 2014. 

H. Curtis Spalding, 

Regional Administrator, Region 1. 

Editor’s note: This document was received 

by the Office of the Federal Register on July 

3, 2014. 

Part 52 of chapter I, title 40 of the 

Code of Federal Regulations is amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 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)(103) to read as 

follows: 

§ 52.370 Identification of plan. 

* * * * * 

(c) * * * 

(103) Revisions to the State 

Implementation Plan submitted by the 

Connecticut Department of 

Environmental Protection on November 

18, 2009, and Connecticut Department 

of Energy and Environmental Protection 

on March 12, 2012. 

(i) Incorporation by reference. 

(A) Regulations of Connecticut State 

Department of Environmental Protection 

Section 22a–174, effective December 28, 

2000; as published in the Connecticut 

Law Journal on January 23, 2001. 

(1) Section 22a–174–19a, ‘‘Control of 

sulfur dioxide emissions from power 

plants and other large stationary sources 

of air pollution,’’ with the following 

exceptions which Connecticut did not 

submit as part of the SIP revision 

because they are not applicable to the 

Connecticut Alternative to Best 

Available Retrofit Technology (BART) 

program: 

(i) Section 22a–174–19a(a)(5); 

(ii) Section 22a–174–19a(a)(8); 

(iii) Section 22a–174–19a(a)(11); 

(iv) In Section 22a–174–19a(a)(13); the 

sentence ‘‘Early reduction credits shall 

qualify as SO2 DERCs.’’; 

(v) Section 22a–174–19a(d); 

(vi) Section 22a–174–19a(e)(4); 

(vii) Section 22a–174–19a(f) through 

19a(h); and 

(viii) In Section 22a–174–19a(i)(2), the 

reference to ‘‘or (e)(4).’’ 

(2) Section 22a–174–22, ‘‘Control of 

nitrogen oxide emissions,’’ subsection 

(e)(3). 

(B) Connecticut General Statute, Title 

16a ‘‘Planning and Energy Policy,’’ 

Chapter 296 ‘‘Operation of Fuel Supply 

Business,’’ Section 16a–21a, ‘‘Sulfur 

content of home heating oil and off-road 

diesel fuel. Suspension of requirements 

for emergency,’’ effective June 2, 2008, 

as published in the State of Connecticut 

General Statutes, Revision of 1958, 

Revised to 2009. 

(ii) Additional materials. 

(A) The Connecticut Department of 

Environmental Protection document, 

‘‘Connecticut Regional Haze SIP 

Revision, Final, November 2009.’’ 

(B) The Connecticut Department of 

Energy and Environmental Protection 

letter ‘‘Clarification of Connecticut’s 

2008 PM2.5 Attainment Demonstration,’’ 

dated March 12, 2012, signed by Anne 

Gobin. 

(C) The Connecticut Department of 

Energy and Environmental Protection 

letter ‘‘Regional Haze State 

Implementation Plan,’’ dated February 

24, 2012, signed by Anne Gobin. 

(D) The Connecticut Department of 

Energy and Environmental Protection 

letter ‘‘Withdrawal of Request for 

Parallel Processing,’’ dated November 

23, 2012, signed by Anne R. Gobin. 

■ 3. In § 52.385, Table 52.385 is 

amended by: 

■ a. Adding a state citation ‘‘22a–174– 

19a’’ in order of ‘‘Date adopted by 

State’’; and 

■ b. Adding an entry for existing state 

citation ‘‘22a–174–22’’ in order of ‘‘Date 

adopted by State’’; and 

■ c. Adding a state citation ‘‘Sec. 16a– 

21a’’ at the end of the table. 

The additions read as follows: 

§ 52.385 EPA-approved Connecticut 

regulations. 

* * * * * 


tkelley on DSK3SPTVN1PROD with RULES
39330 Federal Register / Vol. 79, No. 132 / Thursday, July 10, 2014 / Rules and Regulations 

TABLE 52.385—EPA-APPROVED REGULATIONS

Connecticut 

State citation Title/subject 

Dates 

Federal 

Register 

citation 

Section 52.370 Comments/ 

description Date 

adopted by 

State 

Date 

approved 

by EPA 

* * * * * * * 

22a–174–19a Control of sulfur dioxide emissions from power plants 

and other large stationary 

sources of air pollution.

12/28/00 7/10/14 [Insert Federal 

Register 

page number where 

the document begins].

[Insert next 

available 

paragraph 

number in 

sequence].

Approves the sulfur dioxide 

emission standards and fuel 

sulfur limits for units subject 

to the CT NOX Budget program. The following sections were not submitted as 

part of the SIP: Sections 

(a)(5); (a)(8); (a)(11); (d); 

(e)(4); (f); (g); (h); and in 

(i)(2) reference to (e)(4). 

* * * * * * * 

22a–174–22 ... Control of nitrogen oxides 

emissions.

12/28/00 7/10/14 [Insert Federal 

Register 

page number where 

the document begins].

[Insert next 

available 

paragraph 

number in 

sequence].

Approves the Oct–April NOX

emission limits for units 

subject to the CT NOX

Budget program. Only section (e)(3) was submitted as 

part of the SIP revision. 

* * * * * * * 

Sec. 16a–21a Sulfur content of home heating oil and off-road diesel 

fuel. Suspension of requirements for emergency.

6/2/08 7/10/14 [Insert Federal 

Register 

page number where 

the document begins].

[Insert next 

available 

paragraph 

number in 

sequence].

Approves the sulfur content of 

number two home heating 

oil and off road diesel at 

such time that New York, 

Massachusetts, and Rhode 

Island adopt similar limits. 

[FR Doc. 2014–16071 Filed 7–9–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0241; FRL–9913–26- 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Control of Commercial 

Fuel Oil Sulfur Limits for Combustion 

Units 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania. This revision will 

implement low-sulfur fuel oil 

provisions that will reduce the amount 

of sulfur in fuel oils used in combustion 

units, which will aid in reducing sulfur 

dioxide (SO2) emissions and the 

formation of sulfates that cause 

decreased visibility. This action is being 

taken under the Clean Air Act (CAA). 

DATES: This final rule is effective on July 

10, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2013–0241. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the electronic 

docket, some information is not publicly 

available, i.e., confidential business 

information (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 through 

http://www.regulations.gov or in hard 

copy for public inspection during 

normal business hours at the Air 

Protection Division, Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Becoat, (215) 814–2036, or by 

email at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 20, 2014 (79 FR 9701), 

EPA published a notice of proposed 

rulemaking (NPR) seeking comment on 

EPA’s proposed approval of 

Pennsylvania’s SIP revision that 

incorporates the Commonwealth’s lowsulfur fuel oil provisions into the SIP. 

The SIP revision was submitted by the 

Commonwealth of Pennsylvania on 

February 25, 2013, adopting revisions to 

25 Pennsylvania Code (Pa. Code) 

Chapters 121, 123, and 139. In response 

to the NPR, EPA received one comment, 

dated March 24, 2014, from Ms. Jane 

Kozinski, Assistant Commissioner for 

the State of New Jersey Department of 

Environmental Protection (NJDEP). A 

summary of the NJDEP comment and 

EPA’s response is provided in Unit III. 

(Summary of Public Comment and EPA 

Response) of this final rulemaking 

action. 

II. Summary of SIP Revision 

The SIP revision incorporates 

Pennsylvania’s low-sulfur fuel oil 

provisions which apply to the owners 

and/or operators of the following: (1) 

Refineries; (2) pipelines; (3) terminals; 

(4) retail outlet fuel storage facilities and 

ultimate consumers; (5) commercial and 

industrial facilities; and (6) facilities 

with a unit burning regulated fuel oil to 

produce electricity and domestic home 

heaters. The SIP revision implements 

low-sulfur fuel oil provisions that will 

reduce the amount of sulfur in fuel oils 

used in combustion units and amends 


tkelley on DSK3SPTVN1PROD with RULES