Air Plan Approval; Connecticut; State Implementation Plan Revisions Required by the 2015 Ozone NAAQS

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Table of Contents

I. Background

a. NNSR Certification

b. Emission Statement Certification

II. Summary and Evaluation of Connecticut's SIP Revisions

a. NNSR Certification

b. Emission Statement Certification

III. Proposed Action

IV. Statutory and Executive Order Reviews

I. Background

On May 22, 2023, the Connecticut Department of Energy and Environmental Protection (CT DEEP) submitted three revisions to its State Implementation Plan (SIP). We are proposing action on two of these revisions in this notice as described below.

a. NNSR Certification

The first SIP revision certifies the adequacy of the SIP to satisfy the NNSR permitting requirements of the CAA for the reclassification of the Greater Connecticut area to moderate nonattainment for the 2015 ozone NAAQS.

Effective November 7, 2022, the EPA reclassified the Greater Connecticut nonattainment area to moderate nonattainment for the 2015 ozone NAAQS (see 87 FR 60897). Although CT DEEP had previously submitted and EPA had approved a NNSR certification for the 2015 ozone NAAQS initial classification of marginal nonattainment for the Greater Connecticut nonattainment area (see 87 FR 38284, July 28, 2022), EPA's reclassification requires that the state recertify the adequacy of its NNSR program under the moderate nonattainment area requirements. With one exception, explained in more detail below, EPA retained the NNSR requirements for its implementation of the 2015 ozone NAAQS.

The minimum SIP requirements for NNSR permitting programs for the 2015 ozone NAAQS are codified in 40 CFR 51.165. These NNSR program requirements include those promulgated in the “Phase 2 Rule” implementing the 1997 8-hour ozone NAAQS (See 70 FR 71612, November 29, 2005) and the 2008 ozone implementation rule. Additionally, although the 2015 ozone implementation rule included a provision to explicitly allow for inter-pollutant trading for meeting the emissions offset requirement for ozone, this provision was subsequently vacated by Sierra Club v. Environmental Protection Agency, 21 F.4th 815 (D.C. Cir. 2021). Under the Phase 2 Rule, the SIP for each ozone nonattainment area must contain NNSR provisions that: set major source thresholds for nitrogen oxides (NO_X) and volatile organic compounds (VOCs) 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_X 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 VOCs and NO_X 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 VOCs also apply to NO_X pursuant to 40 CFR 51.165(a)(8); and set offset ratios for VOCs and NO_X pursuant to 40 CFR 51.165(a)(9)(i) through (iii) (renumbered as (a)(9)(ii) through (iv) under the 2008 ozone implementation rule). Additionally, pursuant to the 2008 ozone implementation rule, areas designated as nonattainment for that standard that also remain nonattainment for the 1997 ozone standard must satisfy the anti-backsliding requirements of 40 CFR 51.1105.

b. Emission Statement Certification

The second SIP revision certifies that Connecticut's emission statement program satisfies the requirements of CAA section 182(a)(3)(B) for the initial nonattainment designations and the reclassification to moderate nonattainment for the 2015 ozone NAAQS.

CAA Section 182(a)(3)(B) applies to stationary sources that emit NO_X or VOCs in an ozone nonattainment area. The owner of each stationary source that emits NO_X or VOCs must provide a statement each year of its NO_X and VOC emissions, and the statement must be certified as to accuracy. For stationary sources in categories for which the state provides an emissions inventory to the EPA, the state may waive the emission statement requirement for sources with actual emissions of NO_X or VOCs below 25 tons per year.

The entire State of Connecticut was designated as nonattainment for ozone for the 1-hour, 1979 ozone NAAQS and each subsequent ozone NAAQS, including the 2015 ozone NAAQS. Beginning with its initial emission statement program SIP filing on January 12, 1993 (approved on January 10, 1995; 60 FR 2524), Connecticut administered its emission statement program under the record keeping and reporting requirements of section 22a-174-4 of the Regulations of Connecticut State Agencies (RCSA). RCSA section 22a-174-4 was repealed effective October 28, 2022, and replaced with RCSA section 22a-174-4a. RCSA section 22a-174-4a retains the elements necessary to administer the emission statement program in RCSA section 22a-174-4a(b)(1). On November 17, 2022, Connecticut submitted RCSA section 22a-174-4a (Source monitoring, record keeping and reporting) to EPA as a SIP revision to replace RCSA section 22a-174-4. This revision was approved into the SIP by final rule published July 8, 2024 (89 FR 55888), and associated correction notice published July 23, 2024 (89 FR 59620).

II. Summary and Evaluation of Connecticut's SIP Revisions

a. NNSR Certification

Connecticut's longstanding SIP-approved NNSR program, established in 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 Connecticut's May 22, 2023, SIP revision, the State certifies that the version of RCSA Sections 22a-174-1 and 22a-174-3a in the current SIP meet the federal NNSR requirements for the Greater Connecticut ozone nonattainment area. EPA has, however, revised the Connecticut SIP twice since Connecticut's May 2023 certification: on October 5, 2023 (see 88 FR 60591) and November 15, 2023 (see 89 FR 9771). The October 5, 2023, revisions address, among other things, finalizing the incorporation by reference of the provisions regulating NSR permitting, updating the CT DEEP's NSR procedural requirements, and adding to substantive review criteria for CT DEEP's minor NSR permitting process. The November 15, 2023, SIP revision approved Connecticut's revised definition of “severe non-attainment area for ozone,” contained in RCSA 22a-174-1 as amended by the State of Connecticut on November 13, 2023, expanding the more stringent severe nonattainment area to include all of Middlesex and New Haven counties. These changes do not impact the certification criteria in 40 CFR 51.165 as it relates to the NNSR program in the Greater Connecticut nonattainment area and thus we find it appropriate to propose approval of the certification despite the subsequent rulemaking changes. In Connecticut's certification, the State provides a side-by-side comparison demonstrating the State's rules are at least as stringent as EPA's nonattainment new source review permitting program requirements.

Connecticut's SIP-approved NNSR regulation contains the NNSR requirements applicable to serious and severe nonattainment areas. 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 for the one-hour ozone NAAQS, however it no longer includes all of Middlesex and New Haven counties, as those areas are now part of the severe nonattainment area. The SIP's definition of “Major stationary source” then uses these terms to define the NO_X and VOC emission thresholds when determining if a source is major for ozone. The SIP's major stationary source threshold for NO_X and VOCs in a “Severe nonattainment area for ozone” is 25 tons per year. The SIP's major stationary source threshold for NO_X and VOCs in a “Serious nonattainment area for ozone” is 50 tons per year. These thresholds for NO_X and VOCs are consistent with EPA regulations and with CAA major source thresholds for ozone nonattainment areas.

Connecticut's NNSR SIP also properly addresses the thresholds for NO_X and VOCs, as precursors to ozone, within the definition of “Major modification” for an existing major source by establishing the threshold for either of these ozone precursors at 25 tons per year in severe nonattainment areas and 50 tons per year in serious nonattainment areas. These thresholds for a major modification are consistent with EPA regulations. Lastly, since Connecticut's NNSR SIP retains its previously approved major source thresholds, the State's SIP meets the anti-backsliding requirements.

b. Emission Statement Certification

As described above, Connecticut currently implements its emissions statement program under RCSA section 22a-174-4a. This regulation contains the elements necessary to administer the emission statement program in RCSA section 22a-174-4a(b)(1). On November 17, 2022, Connecticut submitted RCSA section 22a-174-4a (Source monitoring, record keeping and reporting) to EPA as a SIP revision to replace RCSA section 22a-174-4. This revision was approved into the SIP by final rule published July 8, 2024 (89 FR 55888), and associated correction notice published July 23, 2024 (89 FR 59620).

Connecticut's emission statement program supports development of the state's emissions inventory of ozone precursors, and requires, consistent with the Air Emissions Reporting Rule (AERR), submittal of annual emissions statements from sources with actual emissions of VOC or NO_X greater than 25 tons per year. Such statements are also required from the owners of all combustion turbines under the authority, historically, of RCSA section 22a-174-4(d), and future statements will be required under the authority of RCSA section 22a-174-4a(b)(1). In addition, emission statements, certified as to accuracy, of actual NO_X and VOC emissions are required annually from owners and operators of facilities operating under RCSA section 22a-174-33a or section 22a-174-33b.

In addition, other sources that may have actual emissions of NO_X or VOCs in amounts of at least 25 tons per year are identified through information submitted under CT DEEP's minor NSR permit program authorized by RCSA section 22a-174-3a. Minor NSR permits are required for any source with potential emissions greater than 15 tons per year. Each permit requires monitoring, record keeping, and reporting. Should the facility have potential emissions of NO_X or VOCs equal to or greater than 25 tons per year per pollutant, the permit requires the facility owner to monitor NO_X or VOC emissions, as applicable, and calculate annual emissions. If the actual annual emissions of NO_X or VOCs are equal to or greater than 25 tons per year, the facility owner must submit an annual emission statement to the CT DEEP Commissioner.

At any other time that CT DEEP becomes aware of a source for which the owner is not submitting an annual emission statement but that may emit actual emissions greater than or equal to 25 tons per year of NO_X or VOCs, CT DEEP requires an annual emission statement from the owner under the authority of RCSA section 22a-174-4a(b)(1).

III. Proposed Action

EPA is proposing approval of portions of Connecticut's May 23, 2023, SIP submittal. Specifically, we are proposing approval of the portion of that submittal that addresses the NNSR requirements for the 2015 ozone NAAQS for the Greater Connecticut nonattainment area, finding the applicable NNSR provisions of Connecticut's regulations satisfy the requirements of 40 CFR 51.165 and CAA's anti-backsliding requirements implemented at 40 CFR 51.1105. Additionally, we are also proposing to approve Connecticut's May 23, 2023, SIP revision request addressing certification that Connecticut's emission statement program satisfies the requirements of CAA section 182(a)(3)(B) for the initial nonattainment designations and the reclassification to moderate nonattainment for the 2015 ozone NAAQS.

EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. 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 .

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. See42 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 Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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); and
• 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.

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

Connecticut DEEP did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral or positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for communities with EJ concerns.

[FR Doc. 2024-22115 Filed 9-26-24; 8:45 am]

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