[Federal Register Volume 82, Number 155 (Monday, August 14, 2017)]
[Rules and Regulations]
[Pages 37819-37822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17021]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2017-0150; FRL-9965-92-Region 1]


Air Plan Approval; Connecticut; Nonattainment New Source Review 
Permit Requirements for the 2008 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve the state implementation plan (SIP) revision 
submitted on March 9, 2017, by the State of Connecticut, through the 
Connecticut Department of Energy and Environmental Protection (CT 
DEEP), addressing the nonattainment new source review (NNSR) 
requirements for the 2008 8-hour ozone National Ambient Air Quality 
Standards (NAAQS). The SIP revision addresses both of Connecticut's 
ozone nonattainment areas for the 2008 ozone NAAQS; the Greater 
Connecticut area and the Connecticut portion of the New York-N. New 
Jersey-Long Island, NY-NJ-CT area. The Connecticut portion of the New 
York-N. New Jersey-Long Island, NY-NJ-CT ozone nonattainment area 
consists of Fairfield, New Haven, and Middlesex counties. The Greater 
Connecticut nonattainment area includes the rest of the State. This 
action is being taken pursuant to the Clean Air Act (CAA or Act) and 
its implementing regulations.

DATES: This direct final rule is effective October 13, 2017 without 
further notice, unless EPA receives adverse comments by September 13, 
2017. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2017-0150 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION 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; email address: 
<a href="/cdn-cgi/l/email-protection#3256535a5e1c565d5c535e56725742531c555d44"><span class="__cf_email__" data-cfemail="583c393034763c373639343c183d2839763f372e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
II. Analysis of Connecticut's Nonattainment New Source Review 
Requirements
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under 
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is 
attained when the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentrations is less 
than or equal to 0.075 ppm. Ambient air quality monitoring data for the 
3-year period must meet a data completeness requirement. The ambient 
air quality monitoring data completeness requirement is met when the 
average percent of days with valid ambient monitoring data is greater 
than 90 percent, and no single year has less than 75 percent data 
completeness as determined in Appendix I of part 50.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of ambient air quality data at the 
conclusion of the designation process. The two Connecticut areas were 
designated nonattainment for the 2008 8-hour ozone NAAQS on April 30, 
2012

[[Page 37820]]

(effective July 20, 2012) using 2009-2011 ambient air quality data. See 
77 FR 30088 (May 21, 2012). At the time of designation, both 
Connecticut areas were classified as marginal nonattainment areas. On 
March 6, 2015, EPA issued a final rule entitled, ``Implementation of 
the 2008 National Ambient Air Quality Standards for Ozone: State 
Implementation Plan Requirements'' (SIP Requirements Rule), which 
establishes the requirements that state, tribal, and local air quality 
management agencies must meet as they develop implementation plans for 
areas where air quality exceeds the 2008 8-hour ozone NAAQS.\1\ See 80 
FR 12264. Areas that were designated as marginal ozone nonattainment 
areas were required to attain the 2008 8-hour ozone NAAQS no later than 
July 20, 2015, based on 2012-2014 monitoring data. See 40 CFR 51.1103. 
The Connecticut areas did not attain the 2008 8-hour ozone NAAQS by 
July 20, 2015, and therefore on April 11, 2016, the EPA Administrator 
signed a final rule reclassifying both Connecticut areas from marginal 
nonattainment areas to moderate nonattainment areas for the 2008 8-hour 
ozone standard. See 81 FR 26697 (May 4, 2016). Moderate areas are 
required to attain the 2008 8-hour ozone NAAQS no later than July 20, 
2018, six years after the effective date of the initial nonattainment 
designations. See 40 CFR 51.1103.
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    \1\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements.
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    Based on the initial nonattainment designation for the 2008 8-hour 
ozone standard, Connecticut was required to develop a SIP revision 
addressing certain CAA requirements for both nonattainment areas. One 
component of that was a SIP addressing nonattainment new source review. 
See 40 CFR 51.1114. On March 9, 2017, Connecticut submitted a SIP 
revision addressing the NNSR requirements related to the 2008 8-hour 
ozone NAAQS for both nonattainment areas.\2\ EPA's analysis of how this 
SIP revision addresses the NNSR requirements for the 2008 8-hour ozone 
NAAQS is provided below.
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    \2\ States have three years after the effective date of 
designation for the 2008 8-hour ozone NAAQS to submit SIP revisions 
addressing NNSR for their nonattainment areas. See 40 CFR 51.1114. 
Connecticut's SIP revision certified that its SIP-approved state 
regulation addressing nonattainment new source review for all new 
stationary sources and modified existing stationary sources in the 
State exceeds the requirements of section 182(a)(2)(C) for the 2008 
8-hour ozone NAAQS. However, EPA does not believe that the two-year 
deadline contained in CAA section 182(a)(2)(C) applies to NNSR SIP 
revisions for implementing the 8-hour ozone NAAQS. See 80 FR 12264, 
12267 (March 6, 2015); 70 FR 71612, 71683 (November 29, 2005). The 
submission of NNSR SIPs due on November 15, 1992, satisfied the 
requirement for states to submit NNSR SIP revisions to meet the 
requirements of CAA sections 172(c)(5) and 173 within two years 
after the date of enactment of the 1990 CAA Amendments. Id.
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II. Analysis of Connecticut's Nonattainment New Source Review 
Requirements

    The minimum SIP requirements for NNSR permitting programs for the 
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. These NNSR 
program requirements include those promulgated in the ``Phase 2 Rule'' 
implementing the 1997 8-hour ozone NAAQS (70 FR 71612 (November 29, 
2005)) and the SIP Requirements Rule implementing the 2008 8-hour ozone 
NAAQS. Under the Phase 2 Rule, the SIP for each ozone nonattainment 
area must contain NNSR provisions that: Set major source thresholds for 
NO<INF>X</INF> and VOC pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i) 
through (iv) and (a)(1)(iv)(A)(2); classify physical changes at a major 
source if the change would constitute a major source by itself pursuant 
to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any significant net 
emissions increase of NO<INF>X</INF> as a significant net emissions 
increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); consider 
increases of VOC emissions in extreme ozone nonattainment areas as 
significant net emissions increases and major modifications for ozone 
pursuant to 40 CFR 51.165(a)(1)(v)(F); set significant emissions rates 
for VOC and NO<INF>X</INF> as ozone precursors pursuant to 40 CFR 
51.165(a)(1)(x)(A) through (C) and (E); contain provisions for 
emissions reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1) 
and (2); provide that the requirements applicable to VOC also apply to 
NO<INF>X</INF> pursuant to 40 CFR 51.165(a)(8); and set offset ratios 
for VOC and NO<INF>X</INF> pursuant to 40 CFR 51.165(a)(9)(i) through 
(iii) (renumbered as (a)(9)(ii) through (iv) under the SIP Requirements 
Rule for the 2008 8-hour ozone NAAQS). Under the SIP Requirements Rule 
for the 2008 8-hour ozone NAAQS, the SIP for each ozone nonattainment 
area designated nonattainment for the 2008 8-hour ozone NAAQS and 
designated nonattainment for the 1997 ozone NAAQS on April 6, 2015, 
must also contain NNSR provisions that include the anti-backsliding 
requirements at 40 CFR 51.1105.
    Connecticut's longstanding SIP-approved NNSR program, established 
in Regulations of Connecticut State Agencies (RCSA) Sections 22a-174-1 
(definitions), and 22a-174-3a (applicability and substantive 
requirements) applies to the construction and modification of 
stationary sources, including major stationary sources in nonattainment 
areas. In its SIP revision, Connecticut certifies that the version of 
RCSA Sections 22a-174-1 and 22a-174-3a in the current SIP meet the 
federal NNSR requirements for both ozone nonattainment areas within 
Connecticut. EPA last approved revisions to the SIP-approved version of 
Connecticut's NNSR rule in 2015 addressing, among other things, the 
NNSR requirements that apply when a major source or major modification 
causes a significant impact in an area that is violating the 
PM<INF>2.5</INF> ambient air quality standard.
    Connecticut's SIP-approved NNSR regulation retains the NNSR 
requirements applicable to serious and severe nonattainment areas, even 
though the two nonattainment areas in the State are now classified as 
moderate nonattainment under the 2008 8-hour ozone NAAQS. Connecticut's 
SIP-approved NNSR regulation defines the term ``Severe nonattainment 
area for ozone'' as including the cities and towns that were 
historically part of the severe New York-N. New Jersey-Long Island, NY-
NJ-CT ozone nonattainment area designated on November 15, 1990 for the 
1-hr ozone NAAQS. The term ``Serious nonattainment area for ozone'' is 
defined to include ``all towns within the State of Connecticut, except 
those towns located in the severe non-attainment area for ozone.'' This 
is the portion of the State that was historically part of the serious 
Greater Connecticut nonattainment area designated on November 15, 1990 
for the 1-hr ozone NAAQS. The SIP's definition of ``Major stationary 
source'' then uses these terms to define the NO<INF>X</INF> and VOC 
emission thresholds when determining if a source is major for ozone. 
The SIP's major stationary source threshold for NO<INF>X</INF> and VOC 
in the area defined as a ``Severe nonattainment area for ozone'' is 25 
tons per year. The SIP's major stationary source threshold for 
NO<INF>X</INF> and VOC in the area defined as a ``Serious nonattainment 
area for ozone'' is 50 tons per year. These thresholds for 
NO<INF>X</INF> and VOC are consistent with EPA regulations.
    Connecticut's NNSR SIP also properly addresses the thresholds for 
VOC and NO<INF>X</INF>, as precursors to ozone, in the definition of 
``Major modification'' by

[[Page 37821]]

establishing the threshold for either of these ozone precursors at 25 
tons per year. This threshold for a major modification is consistent 
with EPA regulations. Lastly, since Connecticut's NNSR SIP retains the 
definitions ``Serious nonattainment area for ozone'' and ``Severe 
nonattainment area for ozone'' that are based on how the State was 
designated nonattainment on November 15, 1990 for the 1-hr ozone 
standard, the State's SIP meets the anti-backsliding requirements.

III. Final Action

    EPA is approving Connecticut's March 9, 2017, SIP revision 
addressing the NNSR requirements for the 2008 8-hour ozone NAAQS for 
both nonattainment areas in the State. The approval encompasses both 
the original designations under the 2008 8-hour ozone NAAQS of marginal 
and the subsequent reclassification of both nonattainment areas to 
moderate. The approval also includes the applicable NNSR provisions of 
Connecticut's regulations that satisfy the CAA's anti-backsliding 
requirements. As discussed above in this notice, Connecticut's SIP 
retains the NNSR requirements applicable to serious and severe 
nonattainment areas, even though the two nonattainment areas in the 
State are now classified as moderate nonattainment areas. EPA has 
concluded that the State's submission fulfills the 40 CFR 51.1114 
revision requirement and meets the requirements of CAA section 110 and 
the minimum SIP requirements of 40 CFR 51.165.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective October 
13, 2017 without further notice unless the Agency receives relevant 
adverse comments by September 13, 2017.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on October 13, 2017 and no further action will 
be taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.
    In addition, Connecticut was issued a finding of failure to submit, 
which started an 18 month sanctions clock and a 24 month Federal 
Implementation Plan (FIP) clock. See 82 FR 9158 (February 3, 2017). The 
18 month sanctions clock was stopped when Connecticut submitted the SIP 
and we determined it complete on April 19, 2017. The 24 month FIP clock 
will stop upon the effective date of our final approval, October 13, 
2017.

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:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
    <bullet> 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 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 October 13, 2017. 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that

[[Page 37822]]

EPA can withdraw this direct final rule and address the comment in the 
proposed rulemaking. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: July 24, 2017.
Deborah A. Szaro,
Acting Regional Administrator, EPA New England.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart H--Connecticut

0
2. Section 52.377 is amended by adding paragraph (r) to read as 
follows:


Sec.  52.377  Control strategy: Ozone.

* * * * *
    (r) Approval. Submittal from the Connecticut Department of Energy 
and Environmental Protection dated March 9, 2017, to address the 
nonattainment new source review requirements for the 2008 8-hour ozone 
NAAQS for the Greater Connecticut and the New York-N. New Jersey-Long 
Island, NY-NJ-CT ozone nonattainment areas, as it meets the 
requirements for both the State's marginal and moderate 
classifications.

[FR Doc. 2017-17021 Filed 8-11-17; 8:45 am]
 BILLING CODE 6560-50-P


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