[Federal Register Volume 67, Number 51 (Friday, March 15, 2002)]
[Proposed Rules]
[Pages 11636-11639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6273]



[[Page 11636]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[CT-066-7223; A-1-FRL-7158-3]


Full Approval of Operating Permit Program; State of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On August 13, 2001, EPA proposed to approve changes that the 
State of Connecticut made to its operating permit program that 
addressed issues identified in EPA's interim approval action in 1997. 
Today, EPA is proposing to approve all other changes the state has made 
to its operating permit program regulations since EPA granted interim 
approval on March 24, 1997. With the combination of the August 2001 
proposal and this proposal, EPA is proposing to fully approve 
Connecticut's entire title V program. Even though the earlier proposal 
was limited to the program changes necessary to address interim 
approval issues, EPA received several comments on Connecticut's title V 
program that went beyond the interim approval issues. In a future 
rulemaking document, EPA will address all comments we receive as a 
result of this document, as well as any comments that we have already 
received on Connecticut's program that concern the state's title V 
program. Connecticut's operating permit program was created to meet the 
federal Clean Air 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 state's 
jurisdiction.

DATES: Comments on this notice must be received on or before April 15, 
2002.

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. 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 address.

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 et seq. and sections 7661-7661e), 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. 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 interim approval. 
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. In 1995, 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 and How 
Did Connecticut Respond?

    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 worked closely with the state to develop all of 
the rule changes necessary to address EPA's interim approval issues. 
Connecticut proposed for public comment regulatory amendments that 
addressed EPA's interim approval issues on July 17, 2001. Based on the 
state's proposal, EPA in parallel proposed to approve those amendments 
because they addressed the interim approval issues. EPA's August 13, 
2001 (66 FR 42496) proposal discussed those interim approval issues and 
the state's proposed regulations to address them, and this notice will 
not repeat that discussion. EPA notes, however, that Connecticut did 
adopt final regulations addressing the interim approval issues that 
were consistent with the changes EPA proposed to approve, and EPA 
continues to propose to approve these elements of the state's program 
for the reasons stated in our August 2001 proposal.

IV. In 2002, What Did Connecticut Submit To Revise Its Title V 
Permit Program?

    On January 11, 2002, Connecticut submitted regulatory amendments to 
its title V operating permit program. The amendments to the state's 
regulations not only addressed the interim approval issues, but 
included changes to the balance of the state's program, largely 
designed to clarify the program requirements EPA had already approved 
in 1997. EPA has reviewed the remaining amendments, which the state 
made throughout portions of R.C.S.A. sections 22a-174-1 (the general 
definitions for DEP's air regulations), 22a-174-2a (air permitting 
procedural requirements), and 22a-174-33 (title V operating permit 
program requirements). Aside from minor alterations throughout these 
sections to clarify the operation of the title V program, the most 
important changes Connecticut has made include a major restructuring of 
the permit processing and modification requirements, which moves those 
provisions from section 33 to section 2a. In addition, to clarify its 
rules, in several areas the state incorporated by reference important 
sections of part 70. We propose that these changes meet title V permit 
program requirements, and that Connecticut's program should be fully 
approved under part 70. (This notice will generally simply cite to the 
section in part 70 for references to 40 CFR part 70 and will cite to 
the relevant section in Connecticut's air pollution control

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regulations for references to R.C.S.A. 22a-174.)

V. Explanation of Certain Provisions in Connecticut's Regulatory 
Amendments To Its Title V Program

    EPA believes that the following amendments to Connecticut's Title V 
program merit detailed discussion in light of Title V, part 70, and 
Connecticut law.
    1. Section 22a-174-2a(f)(2)(D) in Connecticut's rule provides that 
the state can use its ``permit revision'' process not only to increase 
the frequency of monitoring, but also to add ``additional monitoring'' 
to the permit. EPA has consulted with DEP concerning the meaning of 
this provision, and the Department agrees that the plain reading of 
this language is that it allows DEP to add monitoring in addition to 
the monitoring already provided for in the permit using what is 
equivalent to EPA's administrative amendment process in Sec. 70.7(d). 
Importantly, DEP confirms that this provision may not be used to change 
or in any way alter any existing monitoring requirements already 
provided for in the permit terms and conditions. Furthermore, DEP 
agrees that any monitoring added using this provision would be 
``additional'' in the sense that it is in addition to any monitoring 
that is already required to be in the permit under the Act, its 
applicable requirements, and part 70. Therefore, this provision cannot 
be used to add monitoring necessary to meet the monitoring requirements 
of an applicable requirement, of Sec. 70.6(a)(3)(B) regarding periodic 
monitoring, or of Sec. 70.6(c)(1) regarding monitoring sufficient to 
assure compliance with the permit. Essentially, monitoring added under 
section 22a-174-2a(f)(2)(D) will be above and beyond what is required 
in the Act where DEP concludes that such data would be useful. An 
example of the kind of use DEP expects to make of this provision would 
be: a municipal waste combustor has a permit with sufficient periodic 
monitoring consistent with applicable requirements, but the state and 
source agree that they want to try a novel and experimental continuous 
emissions monitor to track hazardous VOC emissions. Section 22a-174-
2a(f)(2)(D) would allow DEP to authorize installation of the CEM 
expeditiously to try it out without any permit shield.
    This provision does not correspond exactly to the types of 
administrative amendments already provided for in Sec. 70.7(d)(1). But 
Sec. 70.7(d)(1)(vi) allows EPA to approve other types of permit changes 
that can be processed as administrative amendments, provided EPA 
determines that the change is similar to the changes specifically 
listed in Sec. 70.7(d)(1)(i)-(iv). EPA is proposing to use this 
authority to approve the ability for Connecticut to add ``additional 
monitoring'' to a title V permit, beyond the monitoring already 
provided for in the permit, using the state's ``permit revision'' 
process in section 22a-174-2a(f)(2)(D). EPA is relying on the fact that 
an existing permit will already contain monitoring which the public and 
EPA have had an opportunity to review and which must be consistent with 
the applicable requirements and Part 70's monitoring requirements. See 
sections 22a-174-33(j)(1)(K) and (L). Additionally, DEP cannot use this 
provision to affect monitoring that is required under the Act. EPA 
believes this type of change is similar to the type of changes listed 
in Secs. 70.7(d)(1)(i)-(v) because it will not alter the requirements 
or stringency of the existing permit, it will generally increase the 
rigor of the compliance requirements in the permit, and it cannot 
affect monitoring requirements mandated under the Act. This very 
limited authority is similar to the concept of increasing the frequency 
of monitoring under Sec. 70.7(d)(1)(iii), which allows monitoring to be 
adjusted in a way that will tend to increase its rigor and will not 
undercut the monitoring required to meet the Act's requirements. 
Therefore, EPA proposes to approve section 22a-174-2a(f)(2)(D) pursuant 
to Sec. 70.7(d)(1)(vi) because it is similar in kind to types of 
changes in Secs. 70.7(d)(1)(i)-(v).
    2. Section 22a-174-2a(d)(4)(C) of Connecticut's regulations 
specifically requires the equivalent of a significant permit 
modification procedure under Sec. 70.7(e)(4) (a ``non-minor 
modification'' as denominated in section 22a-174-2a(d)) to ``relax the 
form or type of or any reduction in the frequency of any monitoring, 
reporting or recordkeeping required by the title V permit.'' This 
provision is not identical to the requirement in Sec. 70.7(e)(4) that 
``every significant change in existing monitoring'' must undergo the 
significant permit modification procedure. It could be unclear, for 
example, how one must process a significant change in monitoring that 
has an indeterminate effect on the rigor of the permit, i.e. which may 
or may not ``relax'' the monitoring. Nonetheless, EPA interprets 
section 2a to mean that all significant monitoring changes must go 
through the ``non-minor modification'' process, and Connecticut agrees 
with EPA's interpretation. Section 22a-174-2a(e)(2)(B), a provision of 
Connecticut's ``minor permit modification'' regulations, excludes any 
significant change to monitoring from the minor permit modification 
track, by way of incorporating the exclusions in EPA's rule, including 
Sec. 70.7(e)(2)(i)(A)(2). It is equally clear that significant changes 
in monitoring do not qualify for the administrative amendment track, or 
a ``permit revision'' under section 22a-174-2a(f) of Connecticut's 
rule. Pursuant to section 22a-174-2a(d)(4)(D), any change that does not 
qualify under the other permit modification tracks must be made using 
significant modification procedures under the ``non-minor 
modification'' track of 22a-174-2a(d). Therefore, section 22a-174-2a 
handles significant changes in monitoring consistent with 
Sec. 70.7(e)(4).
    3. Connecticut's provision for administrative permit amendments, or 
``permit revisions'' under section 22a-174-2a(f), includes ``a fuel 
conversion described in section 22a-174-3a(a)(A)(iv) or (v)'' in the 
list of changes that can be made administratively. Section 22a-174-
2a(f)(2)(G).\1\ This cross reference is to a provision in the state's 
revised new source review program that exempts from preconstruction 
permitting certain limited conversions from oil to natural gas or from 
residual oil to distillate oil. While it is expected that these 
conversions to cleaner fuels will generally result in beneficial 
emissions reductions, on the face of the regulation this exemption 
allows for actual emissions increases of up to fifteen tons per year. 
As a result, it is difficult to reconcile the terms of this fuel 
conversion provision with the sort of administrative amendment changes 
provided for in Sec. 70.7(d)(1), which are designed to have no 
emissions impact. However, another provision of Connecticut's 
regulations, section 22a-174-2a(e)(2), requires these fuel conversions 
to undergo a minor permit modification. Specifically, section 22a-174-
2a(e)(2)(A) allows only those changes covered by ``2a(f)(2)(A) through 
(F), inclusive'' to avoid a minor permit modification, with no 
reference to section 2a(f)(2)(G). Therefore, the fuel conversions 
provided for in section 22a-174-2a(f)(2)(G) are captured as minor 
permit amendments, not administrative amendments, which is consistent 
with Secs. 70.7(d) and (e)(2).
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    \1\ It appears that the cross reference is probably intended to 
read ``section 22a-174-3a(a)(A)(iii) or (iv).''
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    4. Connecticut's definition of ``applicable requirements'' at 
section 22a-174-33(a)(2) does not include a

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reference to the national ambient air quality standards as they would 
apply to temporary sources, as provided for in Sec. 70.2. See 
``applicable requirement,'' clause (12). Connecticut's program is 
nevertheless consistent with part 70 and the Act because the state does 
not permit temporary sources under its section 33 regulation. Section 
504(e) of the Act allows, but does not require, states to issue a 
single permit authorizing emissions from similar operations at multiple 
temporary locations. Connecticut has chosen not to implement this 
provision. Section 22a-174-33(c)(1) requires that ``every Title V 
source'' apply for a permit. Section 22a-174-33(a)(10) defines a Title 
V source to be at a ``premises.'' Section 22a-174-1(88) defines 
``premises'' to be the ``grouping of all stationary sources at any one 
location'' (emphasis added). Having required a source to receive a 
section 33 permit for any one location, Connecticut lacks the authority 
to permit temporary sources at multiple locations pursuant to section 
504(e) of the Act. Accordingly, Connecticut is not required to address 
ambient standards as an applicable requirement under section 22a-174-33 
for temporary sources at multiple locations.
    5. Section 22a-174-33(j)(1)(I) is the provision in Connecticut's 
program designed to implement Sec. 70.6(a)(1)(iii) of EPA's regulation, 
providing for a title V permit to establish alternative emission limits 
to the extent allowed in the underlying implementation plan. The 
previous version of Connecticut's regulation provided for the title V 
permit to address ``allowable alternative emission limits,'' which was 
consistent on its face with the requirement that these alternative 
limits must be allowed in the underlying applicable requirement. The 
new version of this section provides for the permit to address 
``alternative emission limits or means of compliance allowed by the 
Commissioner '' (emphasis added). This new formulation creates the 
unintended implication that Connecticut is providing the Commissioner 
with broad discretion to use the title V permit to fashion alternative 
limits, even where they are not provided for in the underlying 
implementation plan. Connecticut did not intend this language change to 
create such discretion, and the surrounding provisions in section 22a-
174-33 make this clear. Section 22a-174-33(j)(1)(H) requires each 
permit to impose the terms of each applicable requirement to each 
emission unit, and section 22a-174-33(j)(1)(J) requires all alternative 
operating scenarios to meet all applicable requirements. Nothing in 
section 22a-174-33(j)(1)(I) waives these requirements that a permit 
must impose the applicable requirements, and Connecticut agrees that 
alternative emission limits addressed under 22a-174-33(j)(1)(I) must be 
allowed under the applicable requirements. Therefore, this section is 
consistent with Sec. 70.6(a)(1)(iii).
    6. In section 22a-174-2a(f)(2)(F) the state incorporates 
Sec. 70.7(d)(1)(v) which allows Connecticut to add the terms of a new 
source review permit to the title V permit using the state's permit 
revision (or administrative amendment) track if the new source review 
permit program meets procedural requirements substantially equivalent 
to Secs. 70.7 and 70.8 and permit content requirements substantially 
equivalent to Sec. 70.6. Connecticut's new source review program does 
not currently meet the requirements of Secs. 70.6, 70.7 and 70.8. 
Therefore, the state cannot incorporate new source review permits into 
a title V permit using its permit revision track. EPA understands that 
section 22a-174-2a(f)(2)(F) is essentially a place-holder that would 
allow the state to bring a new source review permit onto the title V 
permit administratively in the event Connecticut augments its new 
source review regulation to incorporate the relevant part 70 procedural 
and substantive requirements. Connecticut agrees with this 
understanding and with the limitation on its authority under section 
22a-174-2a(f)(2)(F).

VI. Proposed Action and Opportunity to Comment

    EPA is proposing to approve the balance of the changes Connecticut 
has made to its title V operating permit program, along with those 
changes already discussed in our August 2001 notice. Interested members 
of the public may comment on those changes, as described above. Note 
that most of the comments EPA received in response to our August 2001 
proposal concerning the interim approval issues included comments 
addressing the entirety of Connecticut's title V program changes. EPA 
will be responding to all those comments when we take final action on 
the August 2001 proposal and this proposal. The public need not 
resubmit comments already made in response to our August 2001 proposal.
    In particular, EPA solicits comments from the State of Connecticut. 
In this proposal, EPA has interpreted various Connecticut regulations 
in a manner that EPA believes to be most consistent with the Act and 
part 70. If Connecticut disagrees with or wishes to support EPA's 
interpretations, EPA encourages the state to comment during the public 
comment period so that EPA may respond when we take final action on 
this proposal and the August 2001 proposal.

VII. 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

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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 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: March 6, 2002.
Robert W. Varney,
Regional Administrator, EPA--New England.
[FR Doc. 02-6273 Filed 3-14-02; 8:45 am]
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