Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Regional Haze, 5158-5161 [2013-01417]

Download as PDF 5158 Federal Register / Vol. 78, No. 16 / Thursday, January 24, 2013 / Proposed Rules 5. Federalism 11. Indian Tribal Governments A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. 6. Protest Activities 12. Energy Effects The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels. 7. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. 8. Taking of Private Property This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. 9. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. mstockstill on DSK4VPTVN1PROD with 10. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. VerDate Mar<15>2010 18:31 Jan 23, 2013 Jkt 229001 This proposed rule is not a ‘‘significant energy action’’ under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. 13. Technical Standards This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. 14. Environment We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded under figure 2–1, paragraph (32)(e), of the Instruction. Under figure 2–1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 117 PO 00000 Bridges. Frm 00013 Fmt 4702 Sfmt 4702 For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: ■ Authority: 33 U.S.C. 499; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1. 2. In § 117.237, revise paragraph (c) to read as follows: ■ § 117.237 Christina River. * * * * * (c) The draws of the Third Street Bridge at mile 2.3, the Walnut Street Bridge at mile 2.8, and the Market Street Bridge at mile 3.0, located in Wilmington, DE shall all open on signal if at least eight hours notice is given. From 7 a.m. to 8 a.m. and 4:30 p.m. to 5:30 p.m., Monday through Saturday except holidays, the draws of these three bridges need not be opened for the passage of vessels. Any vessel which has passed through one or more of these bridges immediately prior to a closed period and which requires passage through the other bridge or bridges in order to continue to its destination shall be passed through the draw or draws of the bridge or bridges without delay. * * * * * Dated: January 11, 2013. Steven H. Ratti, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. 2013–01355 Filed 1–23–13; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R01–OAR–2009–0919; A–1–FRL– 9773–3] Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Regional Haze Environmental Protection Agency (EPA). ACTION: Supplemental proposed rule. AGENCY: On March 26, 2012, the Environmental Protection Agency (EPA) proposed to approve a revision to the Connecticut State Implementation Plan (SIP) that addresses regional haze for the first planning period from 2008 through 2018. The SIP was submitted by the Connecticut Department of Environmental Protection (now known SUMMARY: E:\FR\FM\24JAP1.SGM 24JAP1 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 16 / Thursday, January 24, 2013 / Proposed Rules as Connecticut Department of Energy and Environmental Protection or ‘‘CT DEEP’’) on November 18, 2009, with additional submittals on February 24, 2012 and March 12, 2012. In the March 26, 2012 rulemaking, pursuant to CT DEEP’s request under parallel processing, EPA proposed approval of Connecticut’s proposed regulation establishing an intra-state nitrogen oxides (NOX) trading program. This rule was designed to serve as a Clean Air Interstate Rule (CAIR) replacement rule and was one component of the State’s alternative to Best Available Retrofit Technology (BART) plan. Connecticut is, however, along with the other eastern States, continuing to implement CAIR. On November 23, 2012, CT DEEP submitted a letter withdrawing the State’s February 24, 2012 parallel processing request of its CAIR replacement rule. In today’s action, EPA is supplementing our March 26, 2012 proposal to include the proposed approval of Connecticut’s alternative to BART plan based in part on Connecticut’s CAIR rule, as originally submitted by the State on November 18, 2009. DATES: Written comments must be received on or before February 25, 2013. ADDRESSES: Submit your comments, identified by Docket ID Number EPA– R01–OAR–2009–0919 by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. Email: arnold.anne@epa.gov. 3. Fax: (617) 918–0047. 4. Mail: ‘‘Docket Identification Number EPA–R01–OAR–2009–0919,’’ Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, (Mail Code OEP05–2), Boston, MA 02109— 3912. 5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, (Mail Code OEP05– 2), Boston, MA 02109—3912. Such deliveries are only accepted during the Regional Office’s normal hours of operation. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. Instructions: Direct your comments to Docket ID No. EPA–R01–OAR–2009– 0919. EPA’s policy is that all comments VerDate Mar<15>2010 18:31 Jan 23, 2013 Jkt 229001 received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov, or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. In addition, copies of the State submittal are also available for public inspection during normal business hours, by appointment at the Bureau of Air Management, Department of Energy PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 5159 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: Table of Contents I. Background II. The Relationship of CAIR and the CrossState Air Pollution Rule (CSAPR) to the Connecticut Regional Haze SIP III. EPA’s Assessment IV. EPA’s Supplemental Proposed Action V. Statutory and Executive Order Reviews Throughout this document, wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. I. Background In section 169A(a)(1) of the 1977 Amendments to the Clean Air Act (CAA), Congress created a program for protecting visibility in the nation’s national parks and wilderness areas. This section of the CAA establishes as a national goal the ‘‘prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas 1 which impairment results from manmade air pollution.’’ Congress added section 169B to the CAA in 1990 to address regional haze. The EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714) (‘‘the Regional Haze Rule’’). The requirements of the Regional Haze rule are summarized in our March 26, 2012 proposed approval of the Connecticut Regional Haze SIP. See 77 FR 12367. On November 18, 2009, the Bureau of Air Management of the CT DEEP 1 Areas designated as mandatory Class I Federal areas consist of national parks exceeding 6000 acres, wilderness areas and national memorial parks exceeding 5000 acres, and all international parks that were in existence on August 7, 1977 (42 U.S.C. 7472(a)). In accordance with section 169A of the CAA, EPA, in consultation with the Department of Interior, promulgated a list of 156 areas where visibility is identified as an important value (44 FR 69122, November 30, 1979). The extent of a mandatory Class I area includes subsequent changes in boundaries, such as park expansions (42 U.S.C. 7472(a)). Although States and Tribes may designate as Class I additional areas which they consider to have visibility as an important value, the requirements of the visibility program set forth in section 169A of the CAA apply only to ‘‘mandatory Class I Federal areas.’’ Each mandatory Class I Federal area is the responsibility of a ‘‘Federal Land Manager’’ (FLM). (42 U.S.C. 7602(i)). When we use the term ‘‘Class I area’’ in this action, we mean a ‘‘mandatory Class I Federal area.’’ E:\FR\FM\24JAP1.SGM 24JAP1 mstockstill on DSK4VPTVN1PROD with 5160 Federal Register / Vol. 78, No. 16 / Thursday, January 24, 2013 / Proposed Rules submitted revisions to the Connecticut SIP to address regional haze, with supplemental submittals on February 24, 2012, and March 12, 2012. One component of the November 18, 2009 regional haze submittal was a demonstration that the implementation of Regulations of Connecticut State Agencies (RCSA) Section 22a–174–22, ‘‘Control of Nitrogen Oxides Emissions,’’ including subdivision 22a– 174–22(e)(3), and RCSA Section 22a– 174–22c, ‘‘The Clean Air Interstate Rule (CAIR) Nitrogen Oxides (NOX) Ozone Season Trading Program,’’ provided greater reduction in NOX emissions than would be achieved by the installation of source-by-source BART NOX controls. In the February 24, 2012 supplemental submittal, CT DEEP requested the parallel processing of proposed RCSA Section 22a–174–22d, ‘‘Post-2011 Connecticut Ozone Season NOX Budget Program’’ as a replacement to RCSA Section 22a–174–22c. The proposed RCSA Section 22a–174–22d limited Connecticut’s intra-state ozone season NOX trading budget to 2,691 tons, the same budget as included in the CAIR Ozone Season Trading Program.2 As part of the March 26, 2012 rulemaking, EPA proposed to approve proposed RCSA Section 22a–174–22d and proposed to approve Connecticut’s alternative to BART program for NOX, of which this rule was one component. When parallel processing, EPA proposes to approve a rule before the State’s final adoption of the regulation. In its February 24, 2012 supplemental submittal, Connecticut indicated that they planned to have a final adopted regulation prior to our final action on its Regional Haze SIP. Under the parallel processing procedure, after a State submits its final adopted regulation, EPA will review the regulation to determine whether it differs from the proposed regulation. If the final regulation does differ from the proposed regulation, EPA will determine whether these differences are significant. (Ordinarily, changes that are limited to issues such as allocation methodology would not be deemed significant for SIP approval purposes, assuming the methodology does not lead to allocations in excess of the total state budget.) Based on EPA’s determination regarding the significance of any changes in the final regulation, EPA would then decide whether it is appropriate to prepare a final rule and describe the changes in the final rulemaking action, re-propose action based on the State’s final adopted 2 See 77 FR 17367 for a full discussion of the Connecticut’s Alternative to BART Program. VerDate Mar<15>2010 18:31 Jan 23, 2013 Jkt 229001 regulation, or other such action as may be appropriate. Today’s supplemental notice of proposed rulemaking only deals with issues associated with Connecticut’s request to parallel process the proposed RSCA Section 22a–174–22d as a replacement of RSCA Section 22a–174– 22c. Other aspects of EPA’s March 26, 2012 proposal remain unchanged. controls under the CAIR program, but not subject to any of the requirements of CSAPR, did not have the option of relying on CSAPR as an alternative to BART. On December 30, 2011, the D.C. Circuit Court issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the D.C. II. The Relationship of the CAIR and Circuit stayed CSAPR pending the the Cross-State Air Pollution Rule court’s resolutions of the petitions for (CSAPR) to the Connecticut Regional review of that rule in EME Homer Haze SIP Generation, L.P. v. EPA (No. 11–1302 CAIR required certain states to reduce and consolidated cases). The court also emissions of sulfur dioxide (SO2) and indicated that EPA is expected to NOX that significantly contribute to continue to administer CAIR in the downwind nonattainment of the 1997 interim until the court rules on the National Ambient Air Quality Standards petitions for review of CSAPR. (NAAQS) for fine particulate (PM2.5) and On August 21, 2012, the D.C. Circuit ozone. See 70 FR 25162 (May 12, 2005). issued a decision to vacate CSAPR. In CAIR established emissions budgets for that decision, it also ordered EPA to SO2 and NOX. On October 13, 2006, continue administering CAIR ‘‘pending EPA’s ‘‘Regional Haze Revisions to the promulgation of a valid Provisions Governing Alternative to replacement.’’ EME Homer Generation, Source-Specific Best Available Retrofit L.P. v. EPA, No. 11–1302 (D.C. Cir., Technology (BART) Determinations; August 21, 2012).3 Final Rule’’ (hereinafter known as the In light of the vacatur and remand of ‘‘Alternative to BART Rule’’) was CSAPR and the continuation of CAIR, published in the Federal Register. See CT DEEP has not finalized its adoption 71 FR 60612. This rule established that of the Connecticut CAIR replacement states participating in the CAIR program rule, RCSA Section 22a–174–22d. In a or other control programs need not letter dated November 23, 2012, CT require BART for SO2 and NOX at DEEP withdrew its February 24, 2012 BART-eligible electric generating units request for parallel processing of this (EGUs). As a result, many States relied regulation. on CAIR as an alternative to BART for III. EPA’s Assessment SO2 and NOX for their subject EGUs. The regional haze SIP submitted by Due to the unique circumstances Connecticut on November 18, 2009 surrounding Connecticut’s development relied on the procedure set forth in the of its regional haze SIP and for the Alternative to BART Rule to reasons explained below, EPA is demonstrate that the CAIR ozone season proposing to approve Connecticut’s NOX budget for Connecticut, in Alternative to BART program based on, conjunction with Connecticut’s in part, the use of CAIR ozone season previously adopted non-ozone season NOX reductions. As a result of the NOX limits, provided greater visibility decision of the D.C. Circuit in EME improvement than would the Homer Generation, L.P. v. EPA, CAIR installation of source-specific BART remains in place and enforceable until NOX controls. substituted by a ‘‘valid’’ replacement CAIR was later found to be rule. To the extent that Connecticut is inconsistent with the requirements of relying on ozone season CAIR as one the CAA and the rule was remanded to element of the Alternative to BART EPA. See North Carolina v. EPA, 550 program, the recent directive from the F.3d 1176 (D.C. Cir. 2008). The court left D.C. Circuit in EME Homer ensures that CAIR in place until replaced by EPA the reductions associated with CAIR with a rule consistent with its opinion. will be permanent and enforceable for See North Carolina v. EPA, 550 F.3d the foreseeable future. EPA has been 1176, 1178 (D.C. Cir. 2008). ordered by the Court to develop a new EPA promulgated the Cross-State Air rule and the opinion makes clear that, Pollution Rule (CSAPR), to replace after promulgating that new rule, EPA CAIR in 2011. See 76 FR 48208 (August must provide states an opportunity to 8, 2011). EPA subsequently determined draft and submit SIPs to implement that that the trading programs in CSAPR rule. CAIR thus cannot be replaced until could also serve as an alternative to source-by-source BART. See 77 FR 3 The court’s judgment is not yet final as the 33642 (June 7, 2012). Connecticut, mandate has not issued and on October 5, 2012, which was subject to ozone season NOX EPA filed a petition asking for rehearing en banc. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\24JAP1.SGM 24JAP1 Federal Register / Vol. 78, No. 16 / Thursday, January 24, 2013 / Proposed Rules EPA has promulgated a final rule through a notice-and-comment rulemaking process, States have had an opportunity to draft and submit SIPs, EPA has reviewed the SIPs to determine if they can be approved, and EPA has taken action on the SIPs, including promulgating a Federal Implementation Plan (FIP) if appropriate. These steps alone will take many years, even with EPA and the states acting expeditiously. For these reasons, EPA believes it is appropriate to allow Connecticut to rely on CAIR at this time, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable for purposes such as visibility improvement for the first Regional Haze planning period and BART. Following promulgation of the replacement rule, EPA will take action to require states to revise their regional haze SIPs to address the BART requirements. At that time, EPA will also determine whether, and to what extent, the replacement rule provides for greater reasonable progress than case by case BART. mstockstill on DSK4VPTVN1PROD with IV. EPA’s Supplemental Proposed Action EPA is proposing to approve Connecticut’s use of the existing federally enforceable RCSA Section 22a–174–22c, ‘‘The Clean Air Interstate Rule (CAIR) Nitrogen Oxides (NOX) Ozone Season Trading Program,’’ as originally submitted by the State on November 18, 2009, as one component of its alternative to BART program. We are also withdrawing our previous proposed approval of RCSA Section 22a–174–22d as one element of Connecticut’s alternative to BART plan. EPA is soliciting public comments on the issues discussed in this notice. EPA is only taking comment on the use of ozone season CAIR as part of Connecticut’s Alternative to BART program. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this Federal Register. V. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve State choices, provided that they meet the criteria of the Clean Air Act. VerDate Mar<15>2010 18:31 Jan 23, 2013 Jkt 229001 Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 5161 Authority: 42 U.S.C. 7401 et seq. Dated: January 11, 2013. Ira W. Leighton, Acting Regional Administrator, EPA Region 1. [FR Doc. 2013–01417 Filed 1–23–13; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 234 [Docket No. FRA–2011–0007, Notice No. 3] RIN 2130–AC26 National Highway-Rail Crossing Inventory Reporting Requirements Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Announcement of public hearing and extension of comment period. AGENCY: By notice of proposed rulemaking (NPRM) published on October 18, 2012, FRA proposed a rule that would require railroads to submit information to the U.S. DOT National Highway-Rail Crossing Inventory (Crossing Inventory) about highway-rail and pathway crossings over which they operate. This document announces a public hearing to provide interested parties an opportunity to comment on the NPRM. This document also extends the NPRM comment period to allow interested parties to submit comments in response to issues raised at the public hearing. DATES: A public hearing will be held on February 19, 2013 in Washington, DC, and will commence at 10 a.m. The comment period in this proceeding is extended to March 29, 2013. ADDRESSES: (1) Public Hearing: The public hearing will be held at the Washington Plaza Hotel, 10 Thomas Circle NW., Washington, DC 20005. (2) Attendance: Any person wishing to participate in the public hearing should notify Michelle Silva in FRA’s Office of Chief Counsel by telephone or in writing, by mail or email, at least five business days before the date of the hearing. Ms. Silva’s contact information is as follows: FRA, Office of Chief Counsel, Mail Stop 10, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone: 202–493–6030; email: michelle.silva@dot.gov. For information on facilities or services for persons with disabilities or to request special assistance at the SUMMARY: E:\FR\FM\24JAP1.SGM 24JAP1

Agencies

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


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposed rule.

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

[[Page 5159]]

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

DATES: Written comments must be received on or before February 25, 
2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2009-0919 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: arnold.anne@epa.gov.
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2009-0919,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Quality Planning 
Unit, 5 Post Office Square--Suite 100, (Mail Code OEP05-2), Boston, MA 
02109--3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, U.S. Environmental Protection 
Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
(Mail Code OEP05-2), Boston, MA 02109--3912. Such deliveries are only 
accepted during the Regional Office's normal hours of operation. The 
Regional Office's official hours of business are Monday through Friday, 
8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2009-0919. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov, or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
Boston, MA. EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding legal 
holidays.
    In addition, copies of the State submittal are also available for 
public inspection during normal business hours, by appointment at the 
Bureau of Air Management, Department of Energy and Environmental 
Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-
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: 

Table of Contents

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

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

I. Background

    In section 169A(a)(1) of the 1977 Amendments to the Clean Air Act 
(CAA), Congress created a program for protecting visibility in the 
nation's national parks and wilderness areas. This section of the CAA 
establishes as a national goal the ``prevention of any future, and the 
remedying of any existing, impairment of visibility in mandatory Class 
I Federal areas \1\ which impairment results from manmade air 
pollution.'' Congress added section 169B to the CAA in 1990 to address 
regional haze. The EPA promulgated a rule to address regional haze on 
July 1, 1999 (64 FR 35714) (``the Regional Haze Rule''). The 
requirements of the Regional Haze rule are summarized in our March 26, 
2012 proposed approval of the Connecticut Regional Haze SIP. See 77 FR 
12367.
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    \1\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977 (42 U.S.C. 7472(a)). 
In accordance with section 169A of the CAA, EPA, in consultation 
with the Department of Interior, promulgated a list of 156 areas 
where visibility is identified as an important value (44 FR 69122, 
November 30, 1979). The extent of a mandatory Class I area includes 
subsequent changes in boundaries, such as park expansions (42 U.S.C. 
7472(a)). Although States and Tribes may designate as Class I 
additional areas which they consider to have visibility as an 
important value, the requirements of the visibility program set 
forth in section 169A of the CAA apply only to ``mandatory Class I 
Federal areas.'' Each mandatory Class I Federal area is the 
responsibility of a ``Federal Land Manager'' (FLM). (42 U.S.C. 
7602(i)). When we use the term ``Class I area'' in this action, we 
mean a ``mandatory Class I Federal area.''
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    On November 18, 2009, the Bureau of Air Management of the CT DEEP

[[Page 5160]]

submitted revisions to the Connecticut SIP to address regional haze, 
with supplemental submittals on February 24, 2012, and March 12, 2012. 
One component of the November 18, 2009 regional haze submittal was a 
demonstration that the implementation of Regulations of Connecticut 
State Agencies (RCSA) Section 22a-174-22, ``Control of Nitrogen Oxides 
Emissions,'' including subdivision 22a-174-22(e)(3), and RCSA Section 
22a-174-22c, ``The Clean Air Interstate Rule (CAIR) Nitrogen Oxides 
(NOX) Ozone Season Trading Program,'' provided greater 
reduction in NOX emissions than would be achieved by the 
installation of source-by-source BART NOX controls.
    In the February 24, 2012 supplemental submittal, CT DEEP requested 
the parallel processing of proposed RCSA Section 22a-174-22d, ``Post-
2011 Connecticut Ozone Season NOX Budget Program'' as a 
replacement to RCSA Section 22a-174-22c. The proposed RCSA Section 22a-
174-22d limited Connecticut's intra-state ozone season NOX 
trading budget to 2,691 tons, the same budget as included in the CAIR 
Ozone Season Trading Program.\2\
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    \2\ See 77 FR 17367 for a full discussion of the Connecticut's 
Alternative to BART Program.
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    As part of the March 26, 2012 rulemaking, EPA proposed to approve 
proposed RCSA Section 22a-174-22d and proposed to approve Connecticut's 
alternative to BART program for NOX, of which this rule was 
one component.
    When parallel processing, EPA proposes to approve a rule before the 
State's final adoption of the regulation. In its February 24, 2012 
supplemental submittal, Connecticut indicated that they planned to have 
a final adopted regulation prior to our final action on its Regional 
Haze SIP. Under the parallel processing procedure, after a State 
submits its final adopted regulation, EPA will review the regulation to 
determine whether it differs from the proposed regulation. If the final 
regulation does differ from the proposed regulation, EPA will determine 
whether these differences are significant. (Ordinarily, changes that 
are limited to issues such as allocation methodology would not be 
deemed significant for SIP approval purposes, assuming the methodology 
does not lead to allocations in excess of the total state budget.) 
Based on EPA's determination regarding the significance of any changes 
in the final regulation, EPA would then decide whether it is 
appropriate to prepare a final rule and describe the changes in the 
final rulemaking action, re-propose action based on the State's final 
adopted regulation, or other such action as may be appropriate.
    Today's supplemental notice of proposed rulemaking only deals with 
issues associated with Connecticut's request to parallel process the 
proposed RSCA Section 22a-174-22d as a replacement of RSCA Section 22a-
174-22c. Other aspects of EPA's March 26, 2012 proposal remain 
unchanged.

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

    CAIR required certain states to reduce emissions of sulfur dioxide 
(SO2) and NOX that significantly contribute to 
downwind nonattainment of the 1997 National Ambient Air Quality 
Standards (NAAQS) for fine particulate (PM2.5) and ozone. 
See 70 FR 25162 (May 12, 2005). CAIR established emissions budgets for 
SO2 and NOX. On October 13, 2006, EPA's 
``Regional Haze Revisions to Provisions Governing Alternative to 
Source-Specific Best Available Retrofit Technology (BART) 
Determinations; Final Rule'' (hereinafter known as the ``Alternative to 
BART Rule'') was published in the Federal Register. See 71 FR 60612. 
This rule established that states participating in the CAIR program or 
other control programs need not require BART for SO2 and 
NOX at BART-eligible electric generating units (EGUs). As a 
result, many States relied on CAIR as an alternative to BART for 
SO2 and NOX for their subject EGUs. The regional 
haze SIP submitted by Connecticut on November 18, 2009 relied on the 
procedure set forth in the Alternative to BART Rule to demonstrate that 
the CAIR ozone season NOX budget for Connecticut, in 
conjunction with Connecticut's previously adopted non-ozone season 
NOX limits, provided greater visibility improvement than 
would the installation of source-specific BART NOX controls.
    CAIR was later found to be inconsistent with the requirements of 
the CAA and the rule was remanded to EPA. See North Carolina v. EPA, 
550 F.3d 1176 (D.C. Cir. 2008). The court left CAIR in place until 
replaced by EPA with a rule consistent with its opinion. See North 
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
    EPA promulgated the Cross-State Air Pollution Rule (CSAPR), to 
replace CAIR in 2011. See 76 FR 48208 (August 8, 2011). EPA 
subsequently determined that the trading programs in CSAPR could also 
serve as an alternative to source-by-source BART. See 77 FR 33642 (June 
7, 2012). Connecticut, which was subject to ozone season NOX 
controls under the CAIR program, but not subject to any of the 
requirements of CSAPR, did not have the option of relying on CSAPR as 
an alternative to BART.
    On December 30, 2011, the D.C. Circuit Court issued an order 
addressing the status of CSAPR and CAIR in response to motions filed by 
numerous parties seeking a stay of CSAPR pending judicial review. In 
that order, the D.C. Circuit stayed CSAPR pending the court's 
resolutions of the petitions for review of that rule in EME Homer 
Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The court 
also indicated that EPA is expected to continue to administer CAIR in 
the interim until the court rules on the petitions for review of CSAPR.
    On August 21, 2012, the D.C. Circuit issued a decision to vacate 
CSAPR. In that decision, it also ordered EPA to continue administering 
CAIR ``pending the promulgation of a valid replacement.'' EME Homer 
Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir., August 21, 2012).\3\
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    \3\ The court's judgment is not yet final as the mandate has not 
issued and on October 5, 2012, EPA filed a petition asking for 
rehearing en banc.
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    In light of the vacatur and remand of CSAPR and the continuation of 
CAIR, CT DEEP has not finalized its adoption of the Connecticut CAIR 
replacement rule, RCSA Section 22a-174-22d. In a letter dated November 
23, 2012, CT DEEP withdrew its February 24, 2012 request for parallel 
processing of this regulation.

III. EPA's Assessment

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

[[Page 5161]]

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

IV. EPA's Supplemental Proposed Action

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

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: January 11, 2013.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2013-01417 Filed 1-23-13; 8:45 am]
BILLING CODE 6560-50-P