[Federal Register Volume 88, Number 135 (Monday, July 17, 2023)]
[Proposed Rules]
[Pages 45373-45376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14893]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 70

[EPA-R01-OAR-2023-0353; FRL-11161-01-R1]


Air Plan Approval and Operating Permit Program Approval; 
Connecticut; Revision to Definitions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revised definition in the State Implementation Plan (SIP) and 
the Title V Operating Permit Program for the State of Connecticut. On 
June 9, 2023, the Connecticut Department of Energy and Environmental 
Protection (CT DEEP) submitted to EPA a request to parallel process 
recently proposed revisions to the state's definition of ``severe non-
attainment area for ozone'' for inclusion in the EPA-approved SIP and 
Title V Operating Permit Program. The revision is necessary to fully 
implement these programs based on a nonattainment reclassification to a 
portion of Connecticut for the 2008 ozone National Ambient Air Quality 
Standard. EPA is approving these revisions pursuant to the CAA and 
implementing federal regulations.

DATES: Written comments must be received on or before August 16, 2023.

[[Page 45374]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2023-0353 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the 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. The 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, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT: Patrick Bird, Air and Radiation 
Division, U.S. Environmental Protection Agency, EPA Region 1, 5 Post 
Office Square--Suite 100, (Mail code 5-MO), Boston, MA 02109-3912, tel. 
(617) 918-1287, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background
II. Impacts on Reasonably Available Control Technology, New Source 
Review and Title V Programs
III. Review of CT DEEP's Submittal
IV. Parallel Processing
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

    On October 7, 2022, EPA published a final rule to reclassify, among 
other areas, the southwest Connecticut ozone nonattainment area to 
severe nonattainment from serious nonattainment based on the area's 
inability to attain the 2008 ozone National Ambient Air Quality 
Standard (NAAQS) by the attainment date (87 FR 60926).
    Connecticut regulations define nonattainment areas in a geographic 
manner. The current definition of ``severe non-attainment area for 
ozone,'' as found in 22a-174-1 of the Regulations of Connecticut State 
Agencies (RCSA), is based on the nonattainment area designation under 
the 1-hour ozone NAAQS of 1979. The area includes all towns and cities 
in Fairfield County, except the town of Shelton, and two towns in 
Litchfield County (Bridgewater and New Milford). The current definition 
of ``serious non-attainment area for ozone,'' as found in RCSA 22a-174-
1, ``means all towns within the State of Connecticut, except those 
towns located in the severe non-attainment area for ozone.''
    The southwest Connecticut ozone nonattainment area for the 2008 
ozone NAAQS is larger than the older area associated with the 1979 
ozone NAAQS, and it includes all of Fairfield County, New Haven County, 
and Middlesex County.
    On March 20, 2023, CT DEEP proposed changes to the definition of 
``severe non-attainment area for ozone'' within RCSA 22a-174-1. A 
public comment period was open through May 10, 2023. The proposed 
change to the definition expanded the list of cities and towns included 
in the existing definition, including all cities and towns in New Haven 
County and Middlesex County. CT DEEP retained the two towns in 
Litchfield County to ensure consistency in the severe classification 
requirements in these communities and to comply with section 193 of the 
CAA which prohibits any control measure in effect in a nonattainment 
area prior to the enactment of the CAA Amendments of 1990 to be 
modified after enactment, unless such modification yields equivalent or 
greater emission reductions.

II. Impacts on Reasonably Available Control Technology, New Source 
Review and Title V Programs

    Changes in an area's ozone nonattainment classification impact, 
among other things, the tons per year threshold for major stationary 
sources. Consistent with section 182(d) of the CAA, upon the effective 
date of the reclassification, a major source for all severe 
nonattainment areas, including the southwest Connecticut ozone 
nonattainment area, was defined as any stationary source that emits, or 
has the potential to emit, at least 25 tons per year of nitrogen oxides 
or voltile organic compounds. Given the way in which Connecticut's 
definitions and regulatory programs are structured, the 
reclassification from serious to severe nonattainment creates a 
programmatic gap between the federal major source threshold and the 
state major source threshold in portions of the southwest Connecticut 
ozone nonattainment area.
    Connecticut regulations incorporate the definition of ``severe non-
attainment area for ozone'' and ``serious non-attainment area for 
ozone'' into several key definitions and program requirements that 
guide determinations of applicability to programs such as reasonably 
available control technology (RACT), the New Source Review 
preconstruction permitting program and the Title V operating permitting 
program, as well as prohibitory rules that limit a source's potential 
to emit to below Title V permitting thresholds.
    Sections 172(c)(1) and 182(b)(2) of the CAA require states to 
implement RACT in areas classified as moderate (and higher) non-
attainment for ozone, while section 184(b)(1)(B) of the Act requires 
RACT in states located in the Ozone Transport Region. Specifically, 
these areas are required to implement RACT for all major stationary 
sources of nitrogen oxides and volatile organic compounds, and for all 
sources covered by a Control Techniques Guideline. EPA approved 
Connecticut's RACT regulations into the SIP for volatile organic 
compounds at RCSA 22a-174-32 and for nitrogen oxides at RCSA 22a-174-
22. The applicability of these RACT regulations relies, in part, on the 
definitions of ``severe non-attainment area for ozone'' and ``serious 
non-attainment area for ozone'' within RCSA 22a-174-1. Therefore, 
revisions to the geographic scope of those definitions impact how RCSA 
22a-174-22 and RCSA 22a-174-32 are implemented.
    Connecticut's New Source Review program is federally enforceable 
through EPA's approval of applicable regulations into the Connecticut 
SIP. EPA last

[[Page 45375]]

approved New Source Review SIP elements on February 15, 2019 (84 FR 
4338). Within Connecticut's rules, a ``major stationary source,'' as 
defined at RCSA 22a-174-1, includes, ``[a] stationary source that emits 
or has the potential to emit twenty-five (25) tons per year of volatile 
organic compounds or nitrogen oxides as an ozone precursor in any 
severe ozone nonattainment area'' and ``[a] stationary source that 
emits or has the potential to emit fifty (50) tons per year of volatile 
organic compounds or nitrogen oxides as an ozone precursor in any 
serious ozone nonattainment area.''
    Connecticut's New Source Review permitting program relies on the 
definition of ``major stationary source'' within the applicability 
sections of the state's prevention of significant deterioration program 
at RCSA 22a-174-3a(k) and nonattainment New Source Review program at 
RCSA 22a-174-3a(l). Therefore, the thresholds within the definition of 
``major stationary source,'' and that term's inclusion in the 
applicability sections of the state's New Source Review programs, 
directly rely on the geographic-specific definitions of ``severe non-
attainment area for ozone'' and ``serious non-attainment area for 
ozone'' within RCSA 22a-174-1.
    Connecticut's Title V program is an EPA-approved operating permits 
program under 40 CFR part 70. See the y on the geographic-specific 
definitions of ``severe non-attainment area for ozone'' and ``serious 
non-attainment area for ozone'' within RCSA 22a-174-1.
    Connecticut also has two EPA-approved prohibitory rules that limit 
sources' potential to emit to below Title V thresholds. RCSA 22a-174-
33a and 22a-174-33b were approved by EPA on March 11, 2022 (87 FR 
13936) and provide a mechanism for Connecticut sources to comply with 
legally and practicably enforceable limits to levels 50% or 80% of the 
Title V thresholds for regulated NSR pollutants or hazardous air 
pollutants. RCSA 22a-174-33a and 22a-174-33b both define ````Title V 
source thresholds'' to mean the tons per year levels in the definition 
of ``Title V source,'' as found in the state's Title V operating permit 
program at RCSA 22a-174-33. Again, through reliance on the terms 
``severe non-attainment area for ozone'' and ``serious non-attainment 
area for ozone,'' the geographic scope of those definitions impact how 
RCSA 22a-174-33a and 22a-174-33b are implemented.

III. Review of CT DEEP's Submittal

    On June 9, 2023, CT DEEP submitted to EPA a revised version of the 
definition of ``severe non-attainment area for ozone'' within RCSA 22a-
174-1 for approval into the SIP and as a program revision to the 
state's Title V operating permitting program. The proposed definition 
includes all cities and towns in Fairfield County, New Haven County, 
Middlesex County and the towns of Bridgewater and New Milford of 
Litchfield County.
    The definition is consistent with what was proposed at the state 
level on March 20, 2023. At the time of state proposal, EPA reviewed 
the RACT, New Source Review, Title V, and applicable prohibitory rules 
to determine if any other regulatory revisions were needed to satisfy 
the immediate impacts related to the programmatic gap between the 
federal major source threshold and the state major source threshold in 
portions of the southwest Connecticut ozone nonattainment area due to 
the reclassification of the area to severe nonattainment. As described 
in sections I. and II. of this notice, the terms ``severe non-
attainment area for ozone'' and ``serious non-attainment area for 
ozone'' are applicable within several sections of the state's rules, 
and EPA concluded that by revising the definition of ``severe non-
attainment area for ozone'' within RCSA 22a-174-1, several programs 
would be immediately compliant with the federal major source threshold 
as part of EPA's reclassification of the southwest Connecticut ozone 
nonattainment area to severe nonattainment.

IV. Parallel Processing

    In CT DEEP's June 9, 2023 submittal, the state requested parallel 
processing of the revised definition of ``severe non-attainment area 
for ozone'' within RCSA 22a-174-1 for approval within the Connecticut 
SIP and as a Title V program revision. Under this procedure, EPA would 
propose for approval the revision before the state's final adoption of 
the definition. Given the significance of this revision on several 
important CAA programs, we see the value in proceeding with parallel 
processing. Connecticut has also indicated that no comments were 
submitted concerning the definition of ``severe non-attainment area for 
ozone'' during the public comment period for the state rulemaking. 
Connecticut has indicated that it plans to have a final adopted 
regulation by October or November of 2023. After Connecticut submits 
its final adopted regulation, EPA will review the regulation to 
determine whether it differs from the proposed regulation submitted on 
June 9, 2023.
    If the final regulation does not differ from the proposed 
regulation, EPA will process a final rule, adopting the revised 
definition into the SIP and as a Title V program revision. If the final 
regulation does differ from the proposed regulation, EPA will determine 
whether these differences are significant. 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 Connecticut's final adopted regulation, or other such action 
as may be appropriate.

V. Proposed Action

    EPA is proposing to approve Connecticut's revised definition of 
``severe non-attainment area for ozone'' within RCSA section 22a-174-1, 
as proposed by the state on March 20, 2023 and submitted to EPA on June 
9, 2023 with a request to parallel process the proposal. EPA is 
proposing to approve this revised definition within the Connecticut SIP 
and as a Title V program revision.
    EPA is soliciting public comments on the revised definition and 
programmatic implications 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 this proposed rule by following the 
instructions listed in the ADDRESSES section of this Federal Register.

VI. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the revised definition of ``severe non-attainment area for 
ozone'' within Connecticut's RCSA section 22a-174-1, which, upon final 
action, will have impacts to several state regulations, including RACT, 
the state's New Source Review program, and applicable prohibitory 
regulations as discussed in section II. of this preamble. The impact of 
this revision will change the threshold by which these State programs 
will apply to sources of NOx and VOCs in Connecticut. The EPA has made, 
and will continue to make, these documents generally available through 
https://www.regulations.gov and at the EPA Region 1 Office (please 
contact the

[[Page 45376]]

person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

VII. Statutory and Executive Order Reviews

    In reviewing SIP and Title V submissions, EPA's role is to approve 
such submissions, provided that they meet the criteria of the CAA and 
EPA's implementing regulations. These actions merely approve state law 
as meeting Federal requirements and do not impose additional 
requirements beyond those imposed by state law. For that reason, these 
actions:
     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 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); 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).
    Furthermore, the rules regarding Title V operating permit programs 
do not have tribal implications because they are not approved to apply 
to any source of air pollution over which an Indian Tribe has 
jurisdiction, nor will these rules impose substantial direct costs on 
tribal governments or preempt tribal law.
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (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.''
    The CT 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 to 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 people of color, 
low-income populations, and Indigenous peoples.

List of Subjects

40 CFR Part 52

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

 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating Permits, 
Reporting and recordkeeping requirements.

    Dated: July 10, 2023.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2023-14893 Filed 7-14-23; 8:45 am]
BILLING CODE 6560-50-P


