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. Connecticut's Reasonably Available Control Technology Certification

III. VOC RACT Orders

IV. Final Action

V. Statutory and Executive Order Reviews

I. Background and Purpose

On January 23, 2013 (78 FR 4800), EPA published a Notice of Proposed Rulemaking (NPR) for the State of Connecticut. That action proposed approval of a State Implementation Plan (SIP) revision request submitted by the Connecticut Department of Environmental Protection on December 8, 2006, consisting of information documenting how Connecticut complied with the reasonably available control technology requirements for the 1997 8-hour ozone standard.^[1] Additionally, our January 23, 2013 NPR proposed approval of three single source orders establishing reasonably available control technology for controlling volatile organic compound emissions that Connecticut submitted to EPA on July 20, 2007.

II. Connecticut's Reasonably Available Control Technology Certification

On December 8, 2006, the Connecticut Department of Environmental Protection, which was subsequently reorganized and is currently known as the Connecticut Department of Energy and Environmental Protection (CT DEEP), submitted a demonstration that its regulatory framework for stationary sources meets the criteria for RACT as defined in EPA's Phase 2 Implementation rule.^[2] The state held a public hearing on the RACT program on October 18, 2006.

The state's submittal identifies the specific control measures that have been previously adopted to control emissions from major sources of VOC emissions, reaffirms negative declarations for some control technique guideline (CTG) categories, and describes updates made to two existing rules to strengthen them so that they will continue to represent VOC RACT. Connecticut notes that sections 22a-174-20 and 22a-174-32 of the Regulations of Connecticut State Agencies (RSA) are the principal regulations that apply to stationary sources of VOC emissions. Connecticut's submittal makes negative declarations for the following CTG sectors:

1. Automobile coating;

2. Large petroleum dry cleaners;

3. Large appliance coating;

4. Natural gas and gas processing plants;

5. Flat wood paneling coating; and

6. Control of VOC leaks from petroleum refineries.

Connecticut's submittal addresses NO_X emissions as well as VOC emissions. In particular, Connecticut identified Regulations of Connecticut State Agencies (RCSA) section 22a-174-22, “Control of Nitrogen Oxide Emissions,” as its primary NO_X RACT regulation. In addition, RCSA section 22a-174-38 regulates NO_X emissions from Connecticut's six municipal waste combustors (MWCs), which constitute roughly thirty percent of the state's annual NO_X emissions from major NO_X sources. Connecticut indicates that section 22a-174-38 is as stringent as the maximum achievable control technology (MACT) requirements EPA promulgated in 2006, and that this rule thus represents RACT for MWCs in Connecticut.

EPA has reviewed Connecticut's determination that it has adopted VOC and NO_X control regulations for stationary sources that constitute RACT, and determined that the Connecticut regulations cited above constitute RACT for purposes of the 1997 8-hour ozone standard.

Additionally, EPA has determined that Connecticut's two ozone nonattainment areas attained the 1997 8-hour ozone standard by their attainment date, based on quality assured air monitoring data. These determinations were published on August 31, 2010 (75 FR 53219) for the Greater Connecticut area, and on June 18, 2012 (77 FR 36163) for the New York City area. The improvements in air quality represented by these clean data determinations were brought about, in part, by the RACT program implemented by Connecticut.

Other specific requirements of Connecticut's RACT certification and ( printed page 38588) the rationale for our action are explained in the NPR and will not be restated here.

EPA received one comment, from the Sierra Club, on our proposal to approve Connecticut's RACT certification. The Sierra Club argues that it is “impermissible for EPA to allow [CT DEEP] to rely in any part on the Clean Air Interstate Rule (`CAIR') to meet Reasonably Available Control Technology (`RACT') requirements for nitrogen oxides (`NO_X ').”

In response to the Sierra Club's comment, we are clarifying the basis for our determination that Connecticut has adopted regulations that satisfactorily address the NO_X RACT requirement for a moderate nonattainment area under the 1997 8-hour ozone standard. As set forth in detail below, EPA did not propose to do, and is not now taking final action to do, what the Sierra Club argues would be impermissible. EPA is not allowing CT DEEP to “rely in any part on CAIR” to meet NO_X RACT requirements. However, we are supplying this clarification for two reasons. First, the basis for our determination (which has not changed from the proposal to this final action) differs slightly from the explanation that CT DEEP itself set forth in the narrative portion of its SIP submission. Second, we now recognize that the explanation of the basis for that determination that we provided in the proposal was potentially subject to a misreading, which we now dispel.

EPA agrees with the commenter that RACT is a mandatory requirement. EPA also acknowledges that in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), the court held that “the RACT requirement calls for reductions in emissions from sources in the area” and that, therefore, “participation in the NO_X SIP Call could constitute RACT only if participation entailed at least RACT-level reductions in emissions from sources within the nonattainment area.” Id. at 1256. In other words, compliance with an unrestricted interstate emissions trading program, such as the NO_X SIP Call, could not be said to satisfy a RACT requirement absent an analysis demonstrating that any such program achieves “greater emissions reduction in a nonattainment area than would be achieved if RACT-level controls were installed in that area.” Id. at 1258.

In this action, EPA is finalizing our approval of Connecticut's RACT SIP. This action is based on EPA's determination that CT DEEP has adopted regulations that satisfactorily address the applicable NO_X RACT requirement. Specifically, EPA's determination that the SIP satisfies the applicable RACT requirement for electric generating units (EGUs) and other major sources of NO_X emissions, is based on our determination that the two sections of the Regulations of Connecticut State Agencies—sections 22a-174-22 (Control of Nitrogen Oxides Emissions), and 22a-174-38 (Municipal Waste Combustors)—require all major sources of NO_X in the state, including EGUs, to have RACT level controls. These regulations are independent of Connecticut's current and past regulations that allow interstate trading, namely Connecticut's CAIR regulation (section 22a-174-22c), and two now-repealed interstate trading programs, sections 22a-174-22b (Post-2002 Nitrogen Oxides (NO_X) Budget Program) and 22a-174-22a (NO_X Budget Program).

EPA approved sections 22a-174-22 and 22a-174-38 into Connecticut's SIP in 1997 and 2001 respectively. See 62 FR 52016; 66 FR 63311. Moreover, EPA's “Phase 2” implementation rule for the 1997 8-hour ozone standard specifically provided that states could meet the RACT requirement “through a certification that previously required RACT controls represent RACT for 8-hour implementation purposes.” 70 FR 71617. Connecticut's December 8, 2006 submittal did just this, and certified that previously required RACT controls represent RACT for 8-hour implementation purposes:

Connecticut and other states previously designated non-attainment under the 1-hour ozone NAAQS, already have rules in place to reduce emissions of VOC and NO_X for attainment purposes. Recognizing that additional controls may only achieve small incremental emission reductions that are not cost effective, the Implementation Rule allows states to review and certify that RACT controls implemented under the 1-hour ozone NAAQS continue to represent RACT under the 8-hour NAAQS. Such a review and certification follows.^[3]

Connecticut's analysis then proceeds to enumerate, over the course of five pages, the specific requirements applicable to various categories of sources. In particular, Connecticut's analysis explains that its six municipal waste combustors are regulated by Section 22a-174-38, and that “[a]ny facility in Connecticut that has the potential to emit at least fifty tons per year of NO_X ” is regulated by Section 22a-174-22. Id. at 11.

It is important to clarify that EPA is not approving any reliance by CT DEEP on the CAIR emission trading programs. In addition, EPA's own determination that CT DEEP has adopted regulations that satisfactorily address the applicable NO_X RACT requirement is not based on the CAIR emission trading programs, the Connecticut state regulation (section 22a-174-22c) that requires participation by certain Connecticut sources in those programs, or compliance by sources in Connecticut with those programs. In short, the CAIR programs are irrelevant to EPA's approval of these CT SIP submissions. EPA acknowledges that the SIP submission from Connecticut could be read to suggest that its participation in CAIR satisfies NO_X RACT for EGUs. However, we do not interpret Connecticut's submission to rely on this theory, given both Connecticut's introductory statement that its RACT analysis is based on review and submission of previously-adopted RACT controls, and its discussions of those controls (e.g., section 22a-174-22). Moreover, EPA's proposal explained that “EPA has reviewed Connecticut's determination that it has adopted VOC and NO_X control regulations for stationary sources that constitute RACT, and determined that the set of regulations cited by the state constitute RACT for purposes of the 1997 8-hour ozone standard. Additionally, we are proposing to approve the three VOC RACT orders submitted by the state on July 20, 2007.” 78 FR 4802. Our proposal then enumerated the specific Connecticut control requirements upon which EPA relied for our proposal to find that Connecticut has satisfied the RACT requirement.^[4] Neither the CAIR trading programs, nor the Connecticut regulation requiring participation by certain Connecticut sources in those programs was identified in this list. Our proposal did mention Connecticut's own references to its CAIR regulation, but only as explanatory notes regarding additional state NO_X regulations. See id.

In general, EPA approval of a state SIP submission does not imply endorsement of every single statement contained in the narrative portion of that submission. However, in the interest of clarity, we specifically note here that EPA is not ( printed page 38589) approving the portions of Connecticut's SIP submission that cite the presumption or determination in the Phase 2 ozone implementation rule that compliance with CAIR could, in certain circumstances, satisfy NO_X RACT for EGUs.

Rather, we are approving Connecticut's RACT analysis because we agree with Connecticut's determination that sections 22a-174-22 and 22a-174-38, which were developed under the 1-hour ozone NAAQS to control NO_X emissions from major sources, continue to represent RACT for major NO_X sources in Connecticut for purposes of the 1997 8-hour ozone standard. In particular, section 22a-174-22 is Connecticut's primary NO_X RACT regulation, and it contains requirements applicable to EGUs and other major sources of NO_X. A brief summary of this rule is provided below, and additional information can be found within our October 6, 1997 final rule approving the rule into the Connecticut SIP. See 62 FR 52016.

RCSA 22a-174-22, Control of Nitrogen Oxide Emissions

Connecticut's NO_X RACT regulation ^[5] contains a combination of NO_X emission limitations, performance standards, and compliance options, including provisions for sources to meet emission limitations through intra-state emissions trading (i.e., trading limited exclusively to trading among sources within Connecticut), known in Connecticut as “emissions reduction trading” and generally implemented through source-specific orders.

Subsection (d) of the rule lists compliance options available to sources. These options are compliance with emission limitations, fuel switching, a 40% emission reduction, source reconstruction, schedule modification, or intra-state emission reduction trading. Requirements for each method of compliance are detailed in subsections (f) through (j).

Subsection (e) establishes emission limits with specific limits for: Turbines; cyclone furnaces; fast-response double-furnace Naval boilers; fluidized-bed combustors; reciprocating engines; waste combustors; fuel burning equipment firing fuels other than gas, oil, or coal; glass melting furnaces; and other sources providing direct heat. Subsection (e) also contains an emission limit for “all other sources” not having a specifically defined emission limitation. The specific RACT limits for all major NO_X sources, including EGUs, is shown in Table 1 below. Connecticut's EGUs are required to comply with, at a minimum, the emission limit that corresponds to their particular fuel and unit type shown in Table 1, although for most EGUs Connecticut has mandated via permit condition stricter limits than those found within section 22a-174-22. Table 2 below summarizes the NO_X control equipment in place at Connecticut's largest EGUs, along with the emission rates for these units.

Subsection (j) (“Emissions reduction trading”) establishes the requirements for sources complying with subsection (e) emission limitations through intra-state emissions trading. Under subsection (d)(4), CT DEEP must submit any permit or order implementing an intra-state emissions trade under subsection (j) to EPA for approval. See also CAA § 110(i). Therefore, any use of intra-state emissions trading under subsection (j) for compliance with subsection (e) limits would have to be presented to EPA as a new SIP revision, which would be reviewed and processed in a separate regulatory action. See, e.g., 77 FR 71140.

Subsection (k) covers requirements for emission testing and monitoring. Subsection (l) covers recordkeeping and reporting requirements concerning operating hours, fuel usage, NO_X emissions, equipment maintenance, continuous emissions monitoring (CEMS) records, and emissions testing information. Sources must retain these records for five years. Subsection (m) contains provisions requiring the submittal of compliance plans for sources subject to the provisions of section 22a-174-22.

Table 1 below summarizes the NO_X emission limits within section (e) of section 22a-174-22. The following abbreviations are used in the table: gm/bk hp-hr = grams per brake horsepower-hour; lb/mmBTU = pounds per million British Thermal Units; NA = not applicable; and ppmvd = parts per million volume, dry.

Table 2 below provides the NO_X control equipment and related information for Connecticut's 10 largest emitting EGUs in 2009. This data is from EPA's Air Markets Program database. Within Table 2, the following abbreviations are used: LNB = Low NO_X burners; FGR = Flue gas recirculation; OFA = Over-fired air; SCR = Selective catalytic reduction; and SNCR = Selective non-catalytic reduction. ( printed page 38590)

EPA defined RACT as being the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. See 44 FR 53762, September 17, 1979. The NO_X controls noted within Table 2 have all been demonstrated to be effective at reducing NO_X emissions from EGUs, and this is demonstrated by the low NO_X emission rates shown within the table. Based on EPA's experience interpreting and applying the RACT standard, we find reasonable Connecticut's determination that the requirements discussed above are consistent with RACT. Consequently, we agree with Connecticut's determination that its already-approved regulations discussed herein impose a RACT level of control on EGUs, and as described elsewhere in this notice, all major sources of NO_X. Since our approval of Connecticut's RACT SIP does not rely in any way on CAIR, the remainder of the Sierra Club's comments regarding CAIR are not relevant to this action and we are therefore not specifically addressing the remainder of those comments pertaining to the status of CAIR.

III. VOC RACT Orders

On July 20, 2007, Connecticut submitted VOC RACT orders for the Curtis Packaging Corporation in Newtown, Sumitomo Bakelite North America, Incorporated, located in Manchester, and Cyro Industries in Wallingford. Our January 23, 2013 NPR contains a summary of the RACT requirements established for each facility, and our analysis of these requirements. In summary, we have reviewed these single source VOC RACT orders and agree that they represent a RACT level of control for each facility. Therefore, we are approving these orders into the Connecticut SIP.

Other specific requirements of these three VOC RACT orders and the rationale for our action are explained in the NPR and will not be restated here. No public comments were received on this aspect of our NPR.

IV. Final Action

EPA is approving Connecticut's December 8, 2006 RACT certification for the 1997 8-hour ozone standard, and VOC RACT orders for Cyro Industries, Sumitomo Bakelite North America, and the Curtis Packaging Corporation, as revisions to the Connecticut SIP.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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 underExecutive 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive 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 ( printed page 38591) 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 August 26, 2013. 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).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

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

2. Section 52.370 is amended by adding paragraph (c)(101) to read as follows:

3. Section 52.375 is amended by revising paragraph (b) to read as follows:

4. Section 52.377 is amended by adding paragraph (l) to read as follows: