[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Proposed Rules]
[Pages 42496-42499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20264]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[CT-066-7223; A-1-FRL-7032-6]


Full Approval of Operating Permit Program; State of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: The EPA is proposing to fully approve the operating permit 
program for the State of Connecticut. Connecticut's operating permit 
program was created to meet the federal Clean Air Act (Act) directive 
that states develop, and submit to EPA, programs for issuing operating 
permits to all major stationary sources of air pollution and to certain 
other sources within the states' jurisdiction. EPA is proposing to 
approve Connecticut's program at the same time Connecticut is proposing 
changes to its state regulations to address EPA's interim approval 
issues. EPA will only finalize its approval of Connecticut's program 
after Connecticut finalizes its rule consistent with the program 
changes and interpretations described in this notice. The public 
comment period for Connecticut's program regulations (R.C.S.A. Sections 
22a-174-2a and 22a-174-33) is open for comment from July 17, 2001 until 
September 7, 2001.

DATES: Comments on this proposed rule must be received on or before 
September 12, 2001.

ADDRESSES: Comments may be mailed to Donald Dahl, Air Permits Program 
Unit, Office of Ecosystem Protection (mail code CAP) U.S. Environmental 
Protection Agency, EPA--New England, One Congress Street, Suite 1100, 
Boston, MA 02114-2023. EPA strongly recommends that any comments should 
also be sent to Ellen Walton of the Department of Environmental 
Protection, Bureau of Air Management, Planning and Standards Division, 
79 Elm Street, Hartford, Connecticut 06106-5127. Copies of the State 
submittal and other supporting documentation relevant to this action, 
are available for public inspection during normal business hours, by 
appointment at the above addresses.

FOR FURTHER INFORMATION CONTACT: Donald Dahl at (617) 918-1657.

SUPPLEMENTARY INFORMATION:

I. Why Was Connecticut Required To Develop an Operating Permit 
Program?

    Title V of the Clean Air Act (``the Act'') as amended (42 U.S.C. 
7401 and 7661 et seq.), requires all states to develop an operating 
permit program and submit it to EPA for approval. EPA has promulgated 
rules that define the minimum elements of an approvable state operating 
permit program and the corresponding standards and procedures by which 
EPA will approve, oversee, and withdraw approval of state operating 
permit programs. See 57 FR 32250 (July 21, 1992). These rules are 
codified at 40 Code of Federal Regulations (CFR) Part 70 (Part 70). 
Title V directs states to develop programs for issuing operating 
permits to all major stationary sources and to certain other sources. 
The Act directs states to submit their operating permit programs to EPA 
by November 15, 1993, and requires that EPA act to approve or 
disapprove each program within one year after receiving the submittal. 
The EPA's program review occurs pursuant to section 502 of the Act (42 
U.S.C. Sec. 7661a) and the Part 70 regulations, which together outline 
criteria for approval or disapproval.
    Where a program substantially, but not fully, meets the 
requirements of Part 70, EPA may grant the program either partial or 
interim approval. If EPA has not fully approved a program by two years 
after the November 15, 1993 date, or before the expiration of an 
interim program approval, it must establish and implement a federal 
program. EPA granted the State of Connecticut final interim approval of 
its program on March 24, 1997 (see 62 FR 13830) and the program became 
effective on April 23, 1997.

II. What Did Connecticut Submit To Meet the Title V Requirements?

    The Governor of Connecticut submitted a Title V operating permit 
program for the State of Connecticut on September 28, 1995. In addition 
to regulations (Section 22a-174-33 of the Department of Environmental 
Protection Regulations), the program submittal included a legal opinion 
from the Attorney General of Connecticut stating that the laws of the 
State provide adequate legal authority to carry out all aspects of the 
program, and a description of how the State would implement the 
program. The submittal additionally contained evidence of proper 
adoption of the program regulations, application and permit forms, and 
a permit fee demonstration. This program, including the operating 
permit regulations, substantially met the requirements of Part 70.

III. What Was EPA's Action on Connecticut's 1995 Submittal?

    EPA deemed the program administratively complete in a letter to the 
Governor dated November 22, 1995. On December 6, 1996, EPA proposed to 
grant interim approval to Connecticut's submittal. After responding to 
comments, EPA granted interim approval to Connecticut's submittal on 
March 24, 1997. In the notice granting interim approval, EPA stated 
that there were several areas of Connecticut's program regulations that 
would need to be amended in order for EPA to grant full approval of the 
state's program. EPA has been working closely with the state and has 
determined that the state is proposing to make all of the rule changes 
necessary for full approval. The following section contains details 
regarding the areas of Connecticut's

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regulations where the state is proposing to address EPA's interim 
approval issues.

IV. What Were EPA's Interim Approval Issues and Where Has 
Connecticut Amended Its Regulation To Address the Interim Approval 
Issues?

    1. Forty CFR 70.5(c)(6) requires sources to explain exemptions from 
applicable requirements. In Section 22a-174-33(g)(2)(G), the State's 
proposed rule now requires the applicant to explain any exemptions.
    2. Forty CFR 70.5(c)(8)(ii)(B) requires a statement in the 
application that the source will comply with all future requirements 
that become effective during the permit term. In Section 22a-174-
33(i)(1)(B)(ii), the State's proposed rule now requires a source to 
make such a statement.
    3. Forty CFR 70.5(c)(8)(iii)(C) requires that compliance schedules 
must be as least as stringent as any judicial consent decree or 
administrative order. In Section 22a-174-33(i)(1)(B)(iv), the State's 
proposed rule removes the limitations on judicial consent decrees that 
were contained in the original rule.
    4. Forty CFR 70.8(d) contains the provisions regarding a citizen's 
rights to petition EPA over a Title V permit. In Section 22a-174-
33(n)(2) and (4) the State's proposed rule removes the 45 day deadline 
for EPA's objection due to a citizen's petition and clarifies that a 
citizen's right to petition EPA is a function of federal law, not state 
law.
    5. Forty CFR 70.6(a)(7) requires each Title V permit to contain a 
condition that a source will pay fees on an annual basis. Section 22a-
174-33(j)(1)(Z) of the State's proposed rule adds a requirement that 
all permits shall contain a statement requiring the annual payment of 
permit fees.
    6. Forty CFR 70.5(b) requires a source to submit additional or 
corrected information whenever that source becomes aware that the 
original application was either incorrect or incomplete. Section 22a-
174-33(h)(2) of the State's proposed rule now requires the applicant to 
submit additional and corrected information at anytime the source 
becomes aware its initial application is incomplete or incorrect.
    7. Forty CFR 70.7(a)(5) requires the state to provide a statement 
of legal and factual basis for each permit. Sections 22a-174(33)(j)(3) 
and (4) of the State's proposed rule now require the State to develop 
the statement of legal authority and technical origin, as well as the 
factual basis for the permit terms. The rule also provides that DEP 
shall send these statements to EPA and anyone else who requests them.
    8. Forty CFR 70.6(a)(3)(iii)(B) requires prompt reporting of permit 
deviations. Section 22a-174-33(o)(1) and (p)(1) of the state's proposed 
rule defines ``prompt'' consistent with how EPA defines prompt for the 
federal operating permit program at 40 CFR 71.6(a)(iii)(B).
    9. Forty CFR 70.6(g) contains Title V's emergency provisions that 
uses the term ``technology based emission limitation.'' Connecticut's 
rule had improperly included health based emission limits in its 
description of ``technology-based emission limitations,'' along with 
other inconsistencies with 40 CFR 70.6(g). Section 22a-174-33(p)(2) of 
the State's proposed rule incorporates by reference the relevant 
sections of Part 70 with regards to the affirmative defense. The 
proposed rule also removes the previous definition of a technology 
based emission limit.
    10. Forty CFR 70.4(b)(12) requires states to allow for facilities 
to make ``Section 502(b)(10) changes'' with just a seven day notice. 
Section 22a-174-33(r)(2) of the State's proposed rule incorporates the 
relevant sections of 40 CFR 70.4 governing ``Section 502(b)(10) 
changes,'' but the state rule does not explicitly define ``emissions 
allowable under the permit.'' Even though not explicitly stated, EPA 
interprets Connecticut's incorporation by reference of 40 CFR 
70.4(b)(12)(i) to include the relevant definition of ``emissions 
allowable under the permit'' at 40 CFR 70.2. EPA understands that DEP 
agrees with this interpretation.
    11. Connecticut's interim rule contained language regarding EPA's 
authority to reopen and reissue a Title V permit that included public 
hearing authority. Since EPA does not derive its hearing authority from 
state law, the hearing authority language has been removed and Section 
22a-174-33(s) simply incorporates EPA's authority to reopen a permit 
under 40 CFR 70.7.
    12. Forty CFR 70.2 defines ``applicable requirements'' as a list of 
Clean Air Act requirements. The State's proposed rule in Section 22a-
174-33(a)(2)(D) now includes the entire list of requirements found in 
40 CFR 70.2.
    13. Forty CFR 70.3 contains the requirements that make a source 
subject to the Title V permit program and Section 22a-174-33(c)(3) of 
Connecticut's interim rule created confusion about the applicability of 
Title V. As EPA suggested, Connecticut has proposed to delete this 
language from Section 22a-174-33(c)(3) to make it consistent with Part 
70.
    14. Forty CFR 70.7(d)(4) allows a state to grant a permit shield 
for Administrative Amendments only when the change to the permit meets 
the requirements of a significant permit modification. Connecticut's 
Administrative Amendment requirements do not have to meet such 
requirements. Therefore, in Sections 22a-174-33(k)(1) and (4), the 
State's proposed rule correctly eliminates a permit shield for minor 
and administrative permit amendments and limits its applicability to 
new permits, major modifications, and renewals.
    15. Forty CFR 70.8 contains the provisions for EPA review, 
including a 45 day review period of a proposed permit. Connecticut's 
interim program tried to merge EPA's review of the proposed permit with 
the draft permit that is subject to public comment. Although this can 
be done, safeguards must be in place in case the draft permit is 
changed. The interim program failed to provide EPA an additional 45 day 
review when a draft permit was changed after 45 days of being made 
available for public comment. Section 22a-174-33(n) removes this 
problem by incorporating the procedures for permit review contained in 
40 CFR 70.8. Connecticut's rule no longer merges EPA review of the 
proposed permit with the public comment period on the draft permit.
    16. Connecticut's interim program rule contained a cut-off date of 
1994 when incorporating the requirements of Code of Federal 
Regulations. This would have required Connecticut to continually update 
its rule as EPA published new applicable requirements such as air toxic 
requirements. Connecticut amended its statute in Section 22a-174-1 to 
allow the state to delete the cut-off date in Section 22a-174-33, 
thereby incorporating changes to the CFR on an on-going basis.
    17. Connecticut's interim program contained an incomplete list of 
``regulated air pollutants'' because of the issue number 16 discussed 
above with the CFR cut-off date. Connecticut has amended its provisions 
in Sections 22a-174-33(a)(5), (e)(1), and (g)(2)(G) to make their 
proposed rule consistent with 40 CFR 70.2.
    18. Part 70 requires permits to contain all applicable 
requirements, including provisions for controlling air toxic emissions 
required by section 112(g) of the Act. Sections 22a-174-3a(a)(1)(C) and 
3a(m) in the State's proposed rule are now adequate for issuing permits 
that contain requirements resulting from a decision pursuant to section 
112(g) of the Act.
    19. Forty CFR 70.4(b)(10) states that a permit will not expire when 
a complete renewal application was submitted in a timely manner. 
Section 22a-174-33(j)(1)(B) of the State's proposed rule now allows 
continuation of a permit

[[Page 42498]]

provided a timely renewal application is submitted.
    20. Forty CFR 70.3(b) allows a state to defer non-major sources 
from the Title V program until EPA makes a decision whether to include 
non-major sources in the Title V program. Section 22a-174-33(f)(3) of 
the State's proposed rule is now consistent with Part 70 with regard to 
the applicability of non-major sources.
    21. Forty CFR 70.5(c) requires an applicant to determine the 
applicable requirements for every emission unit. Connecticut's interim 
Title V program shifted the determination burden from the applicant to 
the state. Section 22a-174-33(g)(4) of the State's proposed rule is now 
consistent with Part 70.
    22. Connecticut's interim Title V program contained language 
describing EPA's authority to reopen and reissue a Title V permit. 
EPA's authority is not contained within state law. Therefore, Section 
22a-174-33(r)(13) has been replaced with Section 22a-174-33(s) and 
Section 22a-174-33(j)(1)(U) has been amended in the State's proposed 
rule to remove any confusion.
    23. Forty CFR 70.6(d)(1) states that a source will be deemed to be 
operating without a Title V permit if it is later determined to be 
ineligible to operate under a general permit. Section 22a-174-33(c)(4) 
of the State's proposed rule now makes it clear that a source which 
fails to qualify for a general permit under which it is operating shall 
be deemed to be operating without a permit.
    24. Connecticut's current rule allows changes from the State's 
minor new source review program to be processed as administrative 
amendments to the Title V permit, and is inconsistent with 40 CFR 
70.7(d)(1)(v). Forty CFR 70.7(e)(2) allows minor new source review 
permits to be incorporated into a Title V permit by using the minor 
permit modification procedures of Part 70. Section 22a-174-2a of the 
State's proposed rule have been developed to allow for such 
incorporation and no longer processes such changes as administrative 
amendments.
    25. In Connecticut's interim Title V program, the state only had 
procedures for administrative and significant permit modification 
procedures. Forty CFR 70.7(e)(1) requires states to develop streamlined 
procedures for permit modifications. Section 22a-174-2a of the State's 
proposed rule allows the state to use the equivalent of Part 70's minor 
permit modification procedures and is consistent with 40 CFR 
70.7(e)(1).
    26. Forty CFR 70.5(a)(1)(iii) states that the procedures for 
submitting timely renewal applications must ensure that a permit does 
not expire. This requires a state to coordinate the timing of permit 
renewal with the deadline for sources to submit renewal applications. 
Sections 22a-174-33(f)(5) and (j)(1) of the State's proposed rule have 
now correctly aligned these time frames.
    27. Part 70 requires that a written agreement between the involved 
parties be submitted to the state prior to any changes in ownership to 
ensure that the parties named in the permit have accepted liability for 
complying with the permit. Section 22a-174-2a(g)(2) of the State's 
proposed rule contains such a requirement by incorporating by reference 
40 CFR 70.7(d)(1)(iv).
    28. Forty CFR 70.6(a)(3)(i)(B) contains the requirements for 
periodic monitoring in a Title V permit. Section 22a-174-
33(j)(1)(K)(ii) has been amended to make it clear that every Title V 
permit in Connecticut will contain periodic monitoring as necessary. 
This section of Connecticut's proposed regulations provides that 
recordkeeping ``shall'' be sufficient to meet the periodic monitoring 
requirements ``if so determined by the Commissioner.'' EPA's periodic 
monitoring requirement provides that recordkeeping ``may'' be 
sufficient to serve as periodic monitoring. EPA understands that DEP's 
proposed regulation is the functional equivalent of EPA's regulation. 
DEP is not mandating that periodic monitoring shall be recordkeeping in 
all cases, but only in those cases where DEP affirmatively determines 
recordkeeping to be sufficient to collect data representative of a 
source's compliance status. EPA understands that DEP agrees with this 
interpretation.
    29. Forty CFR 70.2 contains a definition of ``responsible 
official'' and requires that a corporate officer signatory must have 
the responsibility for overall operation of a facility, not just for 
environmental compliance. Section 22a-174-2a(a)(6) has been added to be 
consistent with Part 70.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does 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, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects 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, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing permit program submissions, EPA's role is to approve 
state choices, provided that they meet the criteria of the Clean Air 
Act. In this context, in the absence of a prior existing requirement 
for the State to use voluntary consensus standards (VCS), EPA has no 
clear authority to disapprove a permit program submission for failure 
to use VCS. It would thus be inconsistent with applicable law for EPA, 
when it reviews a permit program submission, to use VCS in place of a 
program submission that otherwise satisfies the provisions of the Clean 
Air Act. Thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988 (61 FR 
4729, February 7, 1996), in issuing this rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the

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takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)

List of Subjects in 40 CFR Part 70

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

    Dated: August 3, 2001.
Ira W. Leighton,
Acting Regional Administrator, EPA-New England.
[FR Doc. 01-20264 Filed 8-10-01; 8:45 am]
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