[Federal Register Volume 67, Number 92 (Monday, May 13, 2002)]
[Rules and Regulations]
[Pages 31966-31974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11826]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[CT-021-1224a; A-1-FRL-7210-9]


Clean Air Act Final Approval of Operating Permits Program; State 
of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting full approval to the Clean Air Act (Act), 
Operating Permits Program of the State of Connecticut (program). 
Connecticut submitted its program for the purpose of complying with the 
Act's directive under title V that states develop programs to issue 
operating permits to all major stationary sources and certain other 
stationary sources of air pollution. EPA granted interim approval to 
Connecticut's initial operating permit program on March 24, 1997. On 
August 13, 2001, EPA proposed full approval of Connecticut's pending 
revised program, provided the state finalized the sections of its 
proposed rules that address EPA's interim approval conditions. On 
January 11, 2002 EPA received Connecticut's adopted revisions to its 
program. On March 15, 2002, EPA proposed full approval to rule changes 
Connecticut made that were not related to EPA's interim approval 
issues. The Agency has determined that Connecticut's program fully 
meets the requirements of title V.

DATES: This rule is effective on May 31, 2002.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, One Congress 
Street, 11th floor, Boston, MA.

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

SUPPLEMENTARY INFORMATION:   
    The following table of contents describes the format for this 
SUPPLEMENTARY INFORMATION section:

    I. What action is EPA taking today?
    II. What issues were raised during the public comment periods 
and what are EPA responses?
    III. What is the effective date of EPA's full approval of the 
Connecticut title V program?
    IV. How does today's action affect the part 71 program in 
Connecticut?
    V. How does EPA's action affect Indian country?
    VI. What are the administrative requirements associated with 
this action?

I. What Action Is EPA Taking Today?

    EPA is taking final action to approve the changes Connecticut made 
to its regulations (R.C.S.A. Sections 22a-174-1, 22a-174-2a and 22a-
174-33) regarding the state's title V permitting program. The Agency is 
granting full approval to Connecticut's title V permitting program 
because Connecticut has made all the necessary changes to its program 
required by EPA's interim approval and the additional program changes 
that the state made meet the requirements of title V and EPA's state 
operating permit program regulations at 40 CFR part 70 (part 70). 
Details of the state's regulatory changes can be found in EPA's two 
proposed rulemakings, 66 FR 42496 (August 13, 2001) and 67 FR 11636 
(March 15, 2002).
    EPA received comments from several groups on the proposed 
rulemakings. Responses to relevant comments are contained in the 
following section. In the final adoption, the state made several 
changes to its proposed rule in response to comments the state 
received. These changes do not effect the substance of the provisions 
EPA relied on when it proposed to grant full approval to Connecticut's 
program. The exact changes the state made can be found as part of EPA's 
public record. In addition, in EPA's proposal of March 15, 2002, the 
Agency explained several interpretations of the state's rules upon 
which we are relying to fully approve the program. The Connecticut 
Department of Environmental Protection (DEP) has submitted a letter 
confirming DEP's agreement with our interpretations. See letter from 
Carmine DiBattista to Donald Dahl, April 12, 2002.
    Unlike the prior interim approval, this full approval has no 
expiration date. However, the state may revise its program as 
appropriate in the future by following the procedures of 40 CFR 
70.4(i). EPA may also exercise its oversight authority under section 
502(i) of the Act to require changes to a state's program consistent 
with the procedures of 40 CFR 70.10.

II. What Issues Were Raised During the Public Comment Periods and 
What Are EPA Responses?

    EPA received several comments on its proposals during the public 
comment periods. The state's rule changes touch upon three separate, 
though related, programs--the title V operating permit program, the new 
source review (NSR) preconstruction permit program, and mechanisms that 
may be used to limit a source's potential emissions. EPA received 
comments that raise issues about all three programs. EPA is not taking 
action here on the portions of the state's rule changes that concern 
NSR and the mechanisms that may limit potential emissions. In the 
Agency's Technical Support Document, EPA has categorized the comments 
into three areas: comments relating to the title V program, comments 
relating to new source review, and all other comments including several 
comments on section 22a-174-3b which establishes operational 
requirements for facilities that assure their emissions will remain at 
insignificant levels. The requirements of section 3b may ultimately 
play a role in a facility's potential to emit. But this section is not 
part of the title V program, and relates more to the requirements for 
staying out of the title V program. Comments concerning new source 
review or other programs, including section 3b, are not related to 
EPA's proposal and are beyond the scope of today's actions. EPA is now 
responding only to the comments that are relevant to fully approving 
Connecticut's title V program. Those comments and our responses are as 
follows:
    1. Comment: The commenter states that Connecticut did not fully 
meet a state legislative mandate that requires the DEP to identify and 
explain differences between federal and state requirements.
    Response: Under section 506(a) of the Clean Air Act, a state is 
free to establish ``additional permitting requirements not inconsistent 
with [the] Act.'' Therefore, EPA will not look behind a state's 
decision to include permitting requirements beyond the minima of the 
Act and part 70, provided the program satisfies those requirements. 
While state agencies may have an independent obligation under state law 
to explain their reasons for including requirements beyond those 
specified in part 70, that obligation does not apply to EPA's 
assessment of the program's adequacy under the Act and part 70.
    2. Comment: The commenter states that the DEP should continue its 
work in clarifying terminology. Examples were given where clarity could 
be

[[Page 31967]]

improved. Terms such as ``minor'' or ``modification'' will have 
different meanings depending on the context the term is used in.
    Response: EPA agrees with the commenter that an unambiguous 
regulation is an important goal for Connecticut as well as the Agency. 
We also agree with the commenter that Connecticut has made major 
improvements in clarity to its title V regulations. As the program is 
implemented in the future, we will continue to work with Connecticut in 
addressing any areas of the state's rule that may be unclear to the 
public or the regulated community. EPA believes that the meaning of the 
terms ``minor'' and ``modification'' are reasonably clear when read in 
the context of each regulatory requirement.
    3. Comment: The commenter requested the state to clarify the intent 
of the phrase ``any other state located within fifty (50) miles of a 
Connecticut Title V source'' contained within the definition of 
``Affected State or States'' in Section 22a-174-1 of the state 
regulations. The current state rule is unclear as to whether ``the 
within 50 mile test'' applies from the Connecticut state border or from 
the location of the permitted source.
    Response: Part 70 defines ``affected state'' as all states whose 
air quality may be affected and which are contiguous to the state in 
which the title V source exists in and any other state within 50 miles 
of the source. The state's definition in section 22a-174-1 differs from 
part 70 only in that Connecticut lists the contiguous states and 
removes the requirement that the source may affect the air quality in 
that contiguous state. Both Connecticut's rule and part 70 determine 
the 50 mile rule based on the distance between another state's border 
and the location of the title V facility. Connecticut's rule satisfies 
the part 70 requirements for identifying affected states.
    4. Comment: The commenter asks the state whether the definition of 
``Minor Permit Modification'' means either a permit modification under 
the new source review program or a permit modification under the title 
V permitting program.
    Response: The term ``minor permit modification'' as it is used in 
Connecticut's air regulations can mean either a modification to a title 
V permit or a new source review permit. When the term is read in 
context, however, the state's regulations make a source's obligations 
reasonably clear when making a change that would require a minor permit 
modification to its title V permit. This is also true for a source that 
is required to obtain a minor permit modification under the new source 
review program.
    5. Comment: The commenter asks the state whether the definition of 
``non-minor permit modification'' means either a permit modification 
under the major new source review program or the title V permitting 
program.
    Response: The term ``non-minor permit modification'' as it is used 
in Connecticut's air regulations can mean either a major modification 
to a title V permit or a major new source review permit. The state's 
permit process regulations consolidate provisions for title V and NSR 
permits where possible to avoid repetition of similar procedural 
requirements. When the term is read in context, however, the state's 
regulations make a source's obligations reasonably clear when making a 
change that would require a non-minor permit modification to its title 
V permit. This is also true for a source that is required to obtain a 
non-minor permit modification under the major new source review 
program.
    6. Comment: The commenter asks the state why the phrase ``who are 
legally'' was removed from the definition of who is responsible as an 
``operator.'' The commenter suggests that the state limit the 
definition by adding ``legally'' when describing who can be considered 
responsible as an operator. The commenter interprets the proposed 
definition of operator, without the term ``legally responsible,'' as 
possibly making all employees subject to permit requirements.
    Response: The term ``operator'' in the state's regulations is used 
to define who is responsible for a source. For example, section 22a-
174-33(c)(1) states that the title V provisions shall apply to the 
owner or operator of a title V source. Connecticut has agreed with the 
commenter and has added the phrase ``who are legally responsible for 
the operation of a source'' back into the definition of ``operator.'' 
This change does not affect EPA's ability to fully approve the state's 
program. It is the intent of part 70 to hold any operator or owner, 
including their agents, who are legally responsible for a source's 
operations liable for meeting the Act's requirements.
    7. Comment: The commenter states that adding the phrase ``portable 
emissions units'' to the definition of ``stationary sources'' will lead 
to unnecessary permitting of de minimus sources. According to the 
comment, de minimus sources would include, among other things, snow 
making machines, rented engines, and spray painting equipment. The 
commenter suggests removing the reference to ``portable emissions 
units.''
    Response: The term ``stationary source'' is used extensively in the 
state's title V regulations. In order to clarify what process units are 
considered emission units at a stationary source, the state proposed to 
add to the term ``stationary source'' portable emission units that 
remain stationary at a source. The state's clarification is consistent 
with EPA guidance when dealing with emission units that are portable. 
Therefore, EPA disagrees with the commenter that the state definition 
of ``stationary source'' should remove the term ``portable emission 
unit.'' For example, under the title V program in Vermont, the state 
correctly included snow making machines as emission units in the title 
V permit for Okemo Mountain, Incorporated.
    8. Comment: The commenter requests that the state incorporate-by-
reference the federal definition of ``volatile organic compound'' in 
Section 22a-174-1 of its regulations. The comment states that this will 
minimize the need for the DEP to revise the definition every time EPA 
changes the definition.
    Response: The term ``VOC'' is used in the state's title V 
regulations in the definition of ``regulated air pollutant.'' EPA 
agrees with the commenter that incorporating the federal definition of 
VOC will make it easier for the state to recognize future changes EPA 
makes to the federal definition. The state also agrees with the 
commenter and has changed the definition of VOC to simply incorporate 
EPA's definition found in ``40 CFR 51.100(s), as amended from time to 
time.''
    9. Comment: The commenter requests the state to clarify and modify 
the signatory responsibilities requirements found in section 22a-174-
2a(a). This section of the state rule identifies who the responsible 
official is for purposes of certifying documents under the title V 
permit program. The state should clarify that people who sign documents 
in accordance with section 22a-174-2a(a)(1) be authorized in accordance 
with section 22a-174-2a(a)(2). The state should also use the existing 
language in section 22a-174-33(b) regarding responsible officials and 
authorization. The state should clarify that an authorization goes to a 
position rather than a specific person. Lastly, the requirement for 
state approval when signatory responsibility is delegated is overly 
burdensome.
    Response: EPA identified as an interim approval issue the 
definition of a ``responsible official'' for documents submitted under 
the title V program. See 62 FR 13830-13833 (March 24,

[[Page 31968]]

1997). As discussed in EPA's August 13, 2001 proposal to fully approve 
Connecticut's program, the state's proposed rule fully addressed EPA's 
interim approval issue. To address comments the state received, 
Connecticut has made changes to its provisions for identifying a 
``responsible official.'' The state changes clarify the procedures a 
company must follow when designating an individual as a responsible 
official. The state's final rule still satisfies the federal 
requirements for ``responsible official.''
    As discussed in response to comment number 1, above, EPA does not 
have authority to look behind a state's decision to include permitting 
requirements in addition to those specified in part 70. Therefore, 
whatever burden might be created by Connecticut's requirement that DEP 
approve delegations of signatory responsibility is not relevant to 
EPA's review and approval of this program.
    10. Comment: The commenter noted that DEP provides for adjudicative 
hearings, as well as less formal legislative hearings, as an option for 
satisfying the requirement that there be an opportunity for a hearing 
on permits. The commenter asserts that EPA has interpreted the Act to 
require only the less formal legislative hearings. Additionally, the 
commenter requests the DEP to consider limiting the requirement to hold 
a public adjudicative hearing by adding a threshold that one must make 
a ``material request'' before a hearing would be granted.
    Response: The provisions of 22a-174-2a(c)(6) and 22a-174-2a(c)(7) 
governing non-adjudicative hearings and meetings satisfy the federal 
requirement to provide an opportunity for a hearing for Title V 
operating permits and new source review permits. In both programs, 
however, a state may include procedural requirements, including 
adjudicative hearing procedures, in addition to the federal minimum 
where the state agency deems it appropriate. EPA has found it 
appropriate for states to require that a request for a hearing must 
raise a material issue; it would be plainly unreasonable to require a 
state to hold hearings on immaterial issues.
    11. Comment: The commenter notes that ``issue of a subject permit * 
* *'' should be ``issuance of a subject permit * * *'' in section 22a-
174-2a(c)(7).
    Response: Connecticut has corrected this error. As stated in the 
response to the previous comment, section 22a-174-2a(c)(7), in 
conjunction with section 22a-174-2a(c)(6), satisfies the federal 
requirements when a public hearing is requested.
    12. Comment: Section 22a-174-2a(e)(3)(B)(i) requires a source to 
include in its application for a minor permit modification any 
``modification in potential emissions.'' Since the term 
``modification'' is a defined term, the commenter requests the word 
``modification'' be replaced by the word ``increase.''
    Response: The state agreed with the commenter and changed the word 
``modification'' to ``increase'' when describing a change in emissions 
due to a project that requires a minor modification to the part 70 
permit. EPA agrees that this change clarifies the state's proposed 
rule. The state's rule still satisfies the federal requirements 
regarding the content of a title V application for a minor permit 
modification.
    13. Comment: Connecticut requires a 21 day waiting period before a 
source can make the change it proposes in its application for a minor 
permit modification. The commenter requests that the state remove the 
waiting period and make the process consistent with part 70.
    Response: The provision of section 22a-174-2a(e)(3)(c) meets the 
federal requirement for minor permit amendments that allow a source to 
make the proposed change prior to receiving a permit modification. As 
stated earlier, a state may include procedural requirements in its 
title V program, including a waiting period for minor permit 
modifications, in addition to the federal minimum requirements when the 
state agency deems it appropriate.
    14. Comment: The commenter requested that Connecticut incorporate a 
safe harbor provision in the procedures for a minor permit modification 
in section 22a-174-2a(e)(4) of the state's regulations. A safe harbor 
provision would protect a source from enforcement if the source acted 
in good faith when it implemented its minor permit modification, even 
if it was determined later that the modification did not qualify as a 
minor permit modification.
    Response: EPA disagrees with this comment. The part 70 program does 
not allow a state to create a safe harbor provision for a source that 
violates program regulations even though the source is complying with 
its application and applied for the minor modification in good faith. 
The minor permit modification procedures in 40 CFR 70.7(e)(2) allow a 
facility to implement a change prior to the permit authority revising 
the permit to address the change. But this provision imposes strict 
liability on a facility that submits a change that it purports to be a 
minor permit modification, but ultimately turns out to require a 
significant permit modification. This strict liability is an important 
element of the structure of 70.7(e)(2), because it provides a 
significant disincentive to permitees that might be tempted to rush a 
change through the system with an unfounded claim that it is a minor 
modification. Therefore, Connecticut cannot, consistent with part 70, 
create the ``safe harbor'' the commenter recommends, and the state's 
rule is consistent with part 70.
    15. Comment: The commenter requests that Connecticut add language 
to section 22a-174-2a(d)(4)(D) that would explicitly state that 
modifications qualifying as operational flexibility and off-permit 
changes would not be subject to non-minor permit modification 
requirements.
    Response: The state has made changes to its proposed rule to 
address this comment. It is consistent with part 70 to exclude changes 
at a facility that qualify as changes under the off-permit or 
operational flexibility requirements from the requirements for 
significant permit modifications. Therefore, the state's changes to its 
rule that address this comment do not impact EPA's ability to approve 
this program.
    16. Comment: The commenter requests that the approval of 
``equivalent monitoring, recordkeeping, or reporting'' be added to 
administrative amendments found at 22a-174-2a(f)(2) of the state 
regulations.
    Response: In 40 CFR 70.7(d), EPA lists the types of changes a state 
may allow sources to make as administrative amendments. Section 
70.7(d)(1)(iii) states a change is eligible as an administrative 
amendment if the permit change ``requires more frequent monitoring or 
reporting.'' Since the request is to add ``equivalent monitoring * * 
*,'' EPA disagrees with the comment and supports Connecticut's position 
not to add ``equivalent monitoring, recordkeeping, or reporting'' to 
its list of permit changes eligible for administrative amendments. 
Making a determination that a substitute monitoring regime is 
``equivalent'' to that provided in the permit involves a level of 
regulatory judgment that is not appropriate for the administrative 
amendment procedure. These procedures are designed for amendments that 
are largely ministerial or that are indisputably more protective of the 
environment, such as increased monitoring frequency.
    17. Comment: Section 22a-174-2a(i)(1) requires permit renewal 
applications to include ``any

[[Page 31969]]

modifications in potential emissions resulting from the proposed 
modifications.'' The commenter suggests clarifying language by 
replacing ``any modification'' with ``any increase'' since the term 
modification is a defined term.
    Response: Connecticut essentially agreed to make this clarification 
in its regulations, and the final rule provides that a renewal 
application must describe any ``increases or decreases in potential 
emissions resulting from any proposed modifications.'' This revision is 
consistent with part 70.
    18. Comment: The commenter states that section 22a-174-3a(m) of 
Connecticut regulations is not identical to part 63 with regard to 
case-by-case MACT determinations. For example, under Connecticut's 
definitions, an increase in HAP emissions at the entire source, not 
just process lines, is used to determine if the thresholds for a 112(g) 
modification are triggered.
    Response: Case-by-case MACT determinations are commonly referred to 
as 112(g) modifications because they implement the requirements of 
section 112(g) of the CAA. Under part 63, the entire new or 
reconstructed process must be a major source by itself. A process is 
defined in 40 CFR part 63 as ``any collection of structures and/or 
equipment, that processes assembles, applies, or otherwise uses 
material inputs to produce or store an intermediate or final product.'' 
This means that a single facility may contain more than one process or 
production unit. Since the state's regulation determines applicability 
on a facility wide basis, the state's rule could potentially require 
more section 112(g) determinations than federal requirements. However a 
state may include requirements, including a more encompassing 112(g) 
program, in addition to the federal minimum for a part 70 program and 
other air pollution control programs where the state agency deems it 
appropriate. See sections 506(a) and 116 of the Act, 42 U.S.C. 7661e(a) 
and 7416.
    19. Comment: The commenter states that Connecticut's rule does not 
exclude sources from the 112(g) program that use existing controls 
previously determined as BACT within 5 years of the modification 
(referred to as the ``good controls exclusion''). This omission could 
make the Connecticut 112(g) program more stringent than the federal 
program. The commenter requests that the state make section 22a-174-
3a(m)(8) consistent with the federal requirements regarding situations 
when compliance with a MACT standard is not required for a source that 
is operating under a 112(g) determination.
    Response: The comment is correct in that Connecticut's rule is more 
stringent than the federal rule regarding this issue. However, a state 
may include requirements, including a more encompassing 112(g) program, 
that go beyond the federal minimum for a part 70 program and other air 
pollution control programs.
    20. Comment: The commenter requests that the state expand its list 
of exempted activities from 112(g) determinations in section 22a-174-
3a(m)(2) to be consistent with federal requirements. The expanded list 
would include adding exemptions for electric utility steam generating 
units and research and development activities.
    Response: The exemption for electric steam generating units is no 
longer applicable. See 65 FR 79825 (December 20, 2000). In its final 
rule, the state did add an exemption for research and development 
(R&D). To comply with the exemption, the state rule requires R&D 
activities to meet the federal requirements for R&D at 40 CFR 63.40(f). 
Exempting R&D activities from 112(g) requirements is consistent with 
federal requirements under part 63 and does not impact EPA's ability to 
approve the title V program.
    21. Comment: The commenter suggests that the state incorporate-by-
reference the federal application requirements for a case-by-case MACT 
determination. The commenter states that Connecticut's rule does not 
contain administrative procedures nor an opportunity for public 
comment. The current proposed state regulations are also confusing when 
determining the required information in an application for a 112(g) 
modification.
    Response: Connecticut is not required to incorporate the federal 
requirements for 112(g) applications. Instead, the state has the option 
to develop its own regulations for applications, as long as the state 
regulations are consistent with federal requirements. EPA has 
determined that section 22a-174-3a, including subsections (c) and (m), 
meet the federal requirements for a complete application, including 
adequate public notice, under the 112(g) program.
    22. Comment: The commenter requests the state to clarify section 
22a-174-3a(m)(7). This section determines when a permittee that has 
received a 112(g) determination is required to comply with the emission 
limit for the applicable MACT standard. The state rule is unclear about 
what happens when a source that installs case-by-case MACT controls 
that are different than the MACT standard later adopted by EPA.
    Response: The state regulation requires a facility, even one with a 
case-by-case MACT determination, to comply with a MACT standard within 
8 years after a MACT is promulgated or within 8 years of the 
permittee's first compliance date for the emission limitation under the 
MACT determination, whichever is earlier. If the first compliance date 
precedes the MACT promulgation, then the permittee would have less than 
8 years from the promulgation. Since the federal requirement is for all 
sources with case-by case determinations to meet the MACT standard 
within eight years of the standard's promulgation, the state rule meets 
federal requirements.
    23. Comment: The commenter is concerned that the state rule 
regarding alternative operating scenarios could be interpreted too 
broadly, requiring separate permit conditions for each level of 
production.
    Response: It is not the intent of a title V permit program to 
require a source to list every production level as an alternative 
operating scenario. EPA has determined that Connecticut's definition of 
an alternative operating scenario is consistent with the Agency's 
policy and guidance on the issue.
    It is true that the definition of ``alternative operating 
scenario'' in definitions section of Connecticut's operating permit 
program regulations is quite broad. See R.C.S.A. sec. 22a-174-33(a)(1). 
Read out of context, it is possible to conclude this definition implies 
that any variation in a facility's operations is relevant under this 
program, regardless of the bearing that variation has on the permit and 
the applicable requirements.
    But it is important to understand this definition in the context in 
which it is used in the program regulations. Permit applicants must 
provide information ``for each alternative operating scenario that the 
applicant has included in the title V permit application.'' R.C.S.A. 
sec. 22a-174-33(g)(1)(E). The permit content requirements mandate that 
each permit include a ``statement of all terms and conditions 
applicable to any allowable alternative operating scenario, including a 
requirement that each such alternative operating scenario shall meet 
all applicable requirements * * *.'' R.C.S.A. sec. 22a-174-33(j)(1)(J). 
These provisions make it reasonably clear that an applicant must 
provide information about those operating scenarios that must be 
addressed in the permit and which require separate attention because of 
the different compliance scenarios or different applicable

[[Page 31970]]

requirements that apply to those scenarios.
    24. Comment: The commenter requests a determination as to how title 
V applicability in the state rules affects landfills and other sources 
subject to section 111(d) plans of the CAA.
    Response: According to Section 22a-174-33(a)(10)(D) of the state's 
rule, any source subject to a 111(d) plan would be defined as a ``Title 
V source.'' However, not all ``Title V sources'' are required to obtain 
a title V permit. Section 22a-174-33(c)(2)(D) of the state's rule, 
exempts sources subject to a 111(d) plan, in addition to other types of 
sources, from obtaining a Title V permit if EPA exempts such a source. 
For example, if a closed landfill is not otherwise required to obtain a 
Title V permit, 40 CFR 62.14352(f) exempts the landfill from obtaining 
a Title V permit provided that the landfill meets certain criteria. 
Since EPA has exempted this limited class of landfills from having to 
obtain a Title V permit, Section 22a-174-33(c)(2)(D) is invoked and 
closed landfills in Connecticut meeting the requirements of 40 CFR 
62.14352(f) are exempted from Title V permitting. Please note that if 
Connecticut submits a rule that would substitute for the federal rule 
for existing landfills, and EPA approves the state rule, the exemption 
from Title V permitting listed in 40 CFR 62.14532(f) would no longer 
apply. The exemption would have to exist in the EPA approved state 
rule.
    25. Comment: The commenter believes that the references to a 
general permit in sections 22a-174-33(d)(9) and (10) are redundant and 
unnecessarily repeat the requirements of sections 22a-174-33(c)(4) and 
(5).
    Response: Section 22a-174-33(d) of Connecticut's rules deals with 
regulations that limit a source's potential emissions. Subsection (d) 
does not contain provisions for a general permit for the title V permit 
program. In fact, the main reason Connecticut developed section 22a-
174-33(d) is to allow a source to limit its potential emissions to 
avoid the title V permit program. Sections 22a-174-33(c)(4) and (5), on 
the other hand, address how title V general permits operate under 
Connecticut's program. Specifically, they spell out the consequences 
for failing to comply with a general permit and for failing to qualify 
for a general permit under which the facility claims it is operating. 
These provisions are not redundant with the general permit provisions 
designed to limit a source's potential to emit under sections 22a-174-
33(d)(9) and (10).
    26. Comment: The commenter believes that the state has gone beyond 
the federal requirement when determining the consequences when a source 
is found to be violating a general title V permit or a general permit 
limiting potential to emit. Connecticut's rule states that if a source 
violates either type of a general permit, the source would be 
considered to be operating without a title V permit.
    Response: EPA disagrees with the comment and has determined the 
state regulation (sections 22a-174-33(c)(4) and (d)(10)) is consistent 
with federal requirements. The commenter is correct that the minimum 
federal requirement in EPA's part 70 regulations for liability 
provisions in a title V general permit program includes a provision 
deeming the source to be operating without a title V permit if the 
source is found not to qualify for a general permit. Connecticut added 
section 33(c)(5) to address EPA interim approval issue number 23 to 
meet this requirement. In addition, Connecticut provided that sources 
which fail to comply with their general permits will be deemed to be 
operating without a title V permit under section 33(c)(4). While not 
required by the part 70 regulations, this provision is certainly 
allowed under title V pursuant to section 506(a) of the Act. That 
section allows a state to establish ``additional permitting 
requirements not inconsistent with [the] Act.'' Connecticut's decision 
to provide vigorous enforcement mechanisms to ensure compliance with 
its general permit programs is certainly not inconsistent with the 
Clean Air Act.
    The requirement in section 33(d)(10), while similar in structure to 
33(c)(4), is not strictly speaking part of EPA's review of the 
operating permit program. This provision addresses a source's liability 
when it fails to comply with a general permit to limit its potential to 
emit. As noted in response to the prior comment, the purpose of 33(d) 
is to keep sources out of the title V program, not to address the 
requirements of title V or part 70.
    27. Comment: The commenter requests the state to be consistent with 
the federal requirements regarding the timing of a title V application 
for a new major stationary source. The federal rule requires an 
application within 12 months of commencing operation. The state's 
proposed rule required an application within 12 months of applying for 
an NSR permit.
    Response: The state addressed this comment by changing its proposed 
rule to be consistent with federal regulations. Section 22a-174-
33(f)(4) requires a title V application within 12 months of commencing 
operation for a new major stationary source or a major modification to 
an existing title V source or within 90 days if notified by the 
commissioner, whichever date is earlier. This state rule addresses the 
application deadline requirements of 40 CFR 70.5(a)(1)(ii).
    Section 22a-174-33(f)(4) does not address the requirement in 40 CFR 
70.5(a)(1)(ii) that the title V permit must be modified prior to 
operating the modification when its existing title V permit prohibits 
such construction or change in operation. However, nothing in section 
22a-174-33(f)(4) of the state rules excuses a source applying for a 
major modification from complying with its existing title V permit. 
Section 22a-174-2a(d)(5)(B) of the state rules clearly prohibits a 
source deviating from its existing permit unless the state first 
modifies the permit.
    28. Comment: The commenter states the vagueness of section 22a-174-
33(h) of Connecticut's rules may not allow an applicant a reasonable 
opportunity to correct application deficiencies before being held 
liable for an insufficient permit application.
    Response: Connecticut has revised section 22a-174-33(h) to clarify 
the consequences if a source fails to meet the requirements for 
submitting a timely application either for the first time or when the 
state determines additional information is required in order to process 
an application. The state's final rule is still consistent with federal 
requirements and fully addresses EPA's interim approval issue. See 62 
FR 13831, section III, no. 6.
    29. Comment: The commenter requests that the state make its permit 
shield provisions in the state rules consistent with permit shield 
language in part 70, and that the state grant permit shield when 
issuing permits.
    Response: Connecticut's permit shield provisions in section 33(k) 
are substantially identical to the federal shield provisions in section 
70.6(f) of EPA's part 70 regulations. Both regulations require that a 
permit shield will only cover those applicable requirements that are 
included and are specifically identified in the permit. Therefore, the 
commenter's concern that the state's shield provisions are more 
stringent that federal requirements appears to be misplaced.
    The commenter's concern that the state does not always provide for 
a permit shield when issuing permits is not relevant to this program 
review. The permit shield language is an optional element for a state 
title V program. It is solely within Connecticut's discretion to grant 
a permit shield. As long as the

[[Page 31971]]

authority for granting a shield under section 22a-174-33(k) is 
consistent with federal requirements, it is up to the state to decide 
when to use that authority.
    30. Comment: The commenter requests the state to relax the proposed 
rule regarding prompt reporting. The commenter is concerned that the 
state has eliminated the provision in section 33(p)(1) that commenced 
the period for measuring ``prompt'' reporting from the time at which 
the permit holder reasonably should have learned of the occurrence. The 
commenter is concerned that some deviations will be difficult to 
discover, and the deadline for reporting will have passed before the 
permit holder knows that the deviation must be reported.
    Response: Part 70 is not specific about how a state should define 
``prompt'' for reporting deviations, and leaves the state substantial 
latitude in structuring this requirement. As described in section IV., 
no. 8 of the proposal, EPA stated that sections 22a-174-33(o)(1) and 
(p)(1) of Connecticut's proposed rules are consistent with how EPA 
defines prompt reporting in the federal program. See 40 CFR 
71.6(a)(iii)(B). Since Connecticut has not changed these proposed 
provisions, EPA has determined that the state's regulations governing 
prompt reporting meet the requirements of part 70. Any concern about 
the strict standard in section 33(p)(1) for reporting a deviation can 
be addressed as part of program implementation and with the reasonable 
application of enforcement discretion.
    31. Comment: The commenter requests the state confirm that it has 
deferred title V permitting of chrome emitting sources for five years.
    Response: Section 22a-174-33(c)(2)(D) essentially incorporates any 
decisions EPA has made under the NSPS and NESHAP programs, including 
the MACT standards program, to defer facilities from the requirement to 
have a title V permit. This section allows for such deferrals where the 
sole reason for bringing a source into the title V program is the 
applicability of a MACT standard and where EPA has promulgated a 
deferral of the title V permitting requirement for that MACT standard 
or certain sources under it. At the discretion of the permitting 
authority, EPA has deferred chrome sources from becoming subject to the 
title V permit program until December 9, 2004. A title V application 
will be due one year after becoming subject to the program, on December 
9, 2005 unless EPA exempts or continues to defer title V applicability 
for chrome emitting sources.
    32. Comment: The commenter asks why did the DEP define the term 
``principal executive officer'' in the last sentence of section 22a-
174-2a(a)(1)(E) of the state's rule because the term appears nowhere 
else in the section. This section of the state rule lists the positions 
of people who can sign as the responsible official for federal 
entities.
    Response: DEP clarified this provision by including ``principal 
executive officer'' in the list of federal officials who can sign title 
V permitting documents as responsible officials. Thus, the definition 
for this term now makes sense in the context of the final regulation, 
and the provision is consistent with part 70, section 70.2.
    33. Comment: The commenter believes that section 22a-174-33(f)(3) 
includes a typographical error and the phrase ``may issue'' does not 
belong in the last phrase of the section. This section of the state 
regulation contains the deadlines for applying for a title V permit 
when a source's potential emissions are minor, but when the source is 
subject to either 40 CFR parts 60 or 61.
    Response: Connecticut agreed with the comment and deleted the 
phrase ``may issue.'' The deletion of the phrase ``may issue'' does not 
impact EPA's proposal that states section 22a-174-33(f)(3) has been 
adequately revised to address the interim approval issue. See section 
IV, no. 20 of EPA's proposal.
    34. Comment: The commenter requests that the state identify the 
forms that a facility must use to comply with the ``non-minor permit 
modification'' application process in section 22a-174-2a(e)(5)(B) of 
the state rules.
    Response: On page 199 of its November 14, 2001 Hearing Report, 
Connecticut stated that it is developing forms for sources to use. 
However, the state made it clear, and EPA concurs, that a source is 
still required to submit all information required by the regulations if 
it desires a non-minor permit modification, even if the state has not 
yet developed a form.
    35. Comment: A commenter expressed concern that the permit 
modification process for ``non-minor permit modifications'' is open-
ended. Connecticut's regulation section 22a-174-2a(d)(8) requires the 
Commissioner to take final action on a non-minor modification within 12 
months, but also provides that the modification will not be 
``automatically be deemed sufficient or approved'' if the Commissioner 
takes longer than 12 months. The commenter asks what the consequence is 
if DEP misses its deadline for modifying a permit.
    Response: EPA agrees with DEP that default issuance of ``non-
minor'' permit modifications, which basically correspond to significant 
modifications under part 70, cannot be allowed consistent with sections 
70.7(e)(4)(ii), 70.7(a), and 70.7(h). Therefore, it would not be 
appropriate to allow a facility to make a ``non-minor modification'' in 
its permit based solely on the fact that DEP has failed to act on its 
application within 12 months. EPA's significant permit modification 
regulations do provide that the ``permitting authority shall design and 
implement this review process to complete review on the majority of 
significant permit modifications within 9 months after receipt of a 
complete application.'' 40 CFR 70.7(e)(4)(ii). This provision does not 
mandate that the state bind itself to acting on all applications within 
9 months. Rather it requires that the state use its authority to act on 
most significant modifications within 9 months. Connecticut's rule for 
processing ``non-minor modifications'' is consistent with this 
provision. Connecticut's procedures for taking public comment, offering 
an opportunity for a hearing, addressing affected state comments, and 
allowing for EPA review give DEP ample opportunity to implement its 
program so that it acts on a majority of ``non-minor modifications'' 
within 9 months. See R.C.S.A. 22a-174-2a(b), (c), and (d).
    36. Comment: A commenter agreed with Connecticut's incorporation of 
the federal definition for ``emission unit'' in section 22a-174-1
    Response: EPA also agrees with the state's change in its definition 
for ``emission unit.''
    37. Comment: The definition of ``federally enforceable'' elicited 
several comments. First, commenters asked whether ``permits to 
operate'' issued under section 22a-174-3 of the state's regulations are 
considered federally enforceable. Second, the commenters supported the 
state's decision to provide that practically enforceable limits should 
also be considered sufficient to limit a source's potential to emit. 
Commenters also submitted concerns that relate to the new source review 
program and are not relevant to this action.
    Response: In a July 25, 1997 letter to Christopher James at DEP, 
EPA confirmed that state operating permits issued pursuant to section 
22a-174-3(f) and (g) may be federally enforceable if they are issued 
consistent with the requirements of those regulations approved into the 
state implementation plan. As discussed below, EPA agrees that emission 
limits to reduce a facility's

[[Page 31972]]

potential to emit must be practically enforceable.
    38. Comment: A commenter requested an explanation from Connecticut 
whether the change to the state's definition for ``fugitive emissions'' 
was intended to change the meaning of ``fugitive emissions'' as defined 
by EPA.
    Response: Connecticut's hearing report makes it clear that it did 
``not intend to alter or expand the meaning of ``fugitive emissions'' 
by the proposed change.'' DEP Hearing Report at 154 (November 14, 
2001). Rather the state's change was made to shift the tense of the 
verb ``which could not reasonably pass through a stack * * *'' from 
past tense to the present tense ``that cannot pass through a stack .* * 
*'' Therefore, if emissions would reasonably be passed through a stack, 
this definition would exclude them from being treated as fugitive 
emissions. Connecticut's revised definition for ``fugitive emissions'' 
is consistent with 40 CFR 70.2.
    39. Comment: The commenter requested an explanation of the state's 
intent concerning new language the state added to the definition of 
``maximum capacity.'' The new language allows the state to accept a 
time frame different from 8760 hours per year when determining the 
maximum capacity of a piece of equipment.
    Response: Connecticut responded that it intends to issue future 
guidance on determining ``maximum capacity.'' On January 25, 1995, EPA 
issued guidance titled ``Options for Limiting the Potential to Emit 
(PTE) of a Stationary Source Under section 112 and Title V of the Clean 
Air Act (Act)'' that recognized inherent physical limits in a source's 
operations that would restrict a source's capacity. These restrictions 
would prevent a source from operating the pollution emitting devices 
8760 hours per year. In this guidance EPA indicated that states have 
the authority to make judgements on inherent physical operational 
restrictions. The language Connecticut added to the definition of 
``maximum capacity'' gives the state the authority EPA recognized in 
the Agency's guidance. EPA is committed in working with Connecticut in 
developing state guidance on when the use of 8760 hours of operation is 
inappropriate when calculating a source's potential emissions.
    40. Comment: The commenter requests the state to limit the counting 
of fugitive emissions ``to the extent quantifiable'' within the 
definition of ``potential emissions.'' In addition, the commenter 
states the definition of ``potential emissions'' arbitrarily prevents 
pollution control equipment from being considered as a physical 
limitation on potential emissions where that equipment is integral to 
the source's operation.
    Response: The term ``potential emissions'' is used in section 22a-
174-33(a)(10) for determining whether a source is required to obtain a 
title V permit. The state disagreed with the commenter and did not add 
the language ``to the extent quantifiable'' when determining if 
fugitive emissions are counted towards a source's title V 
applicability. The state rule is consistent with part 70, where the 
language ``to the extent quantifiable'' is absent when describing 
fugitive emissions within the definition of ``major source.'' The state 
also disagreed with the commenter that pollution control equipment is 
treated arbitrarily under its definition of potential emissions, and 
EPA sees no reason to disagree with that conclusion. DEP clarified that 
it will consider ``inherent engineering, operational or technical 
capacity on an emissions unit that restricts the potential emission of 
such unit'' when determining the maximum capacity of a unit. Nothing in 
this standard arbitrarily excludes consideration of pollution control 
equipment that is integral to the design of an emissions unit, although 
the applicant may have a high burden to demonstrate that the operation 
and performance of the control equipment is an inherent aspect of the 
source's operation.
    41 Comment: Several industry commenters objected to aspects of the 
new definition of ``practically enforceable'' in section 1(87) of the 
state's rule. Following some slight adjustments DEP made to the 
proposed definition in its final rule, the remaining relevant comments 
all expressed concern about the requirement that a facility must have 
``CEM or equivalent'' monitoring if it wishes to limit its emissions 
using an emission limit or operating restriction with a 12-month 
rolling average averaging period.
    Response: Strictly viewed, this comment is probably not directly 
relevant to the action EPA is taking today to approve Connecticut's 
title V program. The term ``practically enforceable,'' as well as the 
corresponding term ``federally enforceable,'' are used in DEP's 
regulations primarily to define how a facility may take limits on its 
potential to emit to avoid the title V operating permit program or 
other applicable requirements that are triggered based on a facility's 
potential emissions. So these terms do not relate so much to the 
implementation of the operating permit program EPA is approving as they 
bear on how to stay out of that program.
    Nevertheless, EPA is responding to comments about the definition of 
``practically enforceable'' because the meaning of this term might be 
relevant to how permit terms in a title V permit are crafted. For 
example, a title V permit holder may wish to take a limit in its permit 
reducing its potential to emit so as to avoid an otherwise applicable 
requirement. In this context, title V sources and the state may want to 
assess the practical enforceability of that limit. Therefore, EPA is 
responding to the comments on this definition.
    Connecticut's definition of practically enforceable is built on the 
same principles as EPA's guidance on the enforceability of limits on 
potential to emit (PTE). See e.g. Guidance on Enforceability 
Requirements for Limiting Potential to Emit through SIP and Sec. 112 
Rules and General Permits, from Kathie A. Stein, Jan. 25, 1995, and the 
materials summarized at p. 5 of this guidance. Both DEP and EPA are 
concerned that if a facility is relying on a PTE limit to avoid 
important applicable requirements or title V permitting, the agencies 
must be able to enforce those PTE limits readily on a short term basis. 
If we must wait for year before enforcing a PTE limit, the limit will 
have far less practical deterrent effect than a short term limit.
    A limit based on a 12-month rolling averaging period strains at the 
boundary of this principle. It is not optimal for an agency to have to 
wait for a month to document compliance with a PTE limit. To be sure 
that we can determine compliance readily when the monthly compliance 
period is completed, the monitoring of such limits must be both 
accurate and timely.
    A CEM meets this standard and provides a useful benchmark for the 
sort of monitoring that is necessary to make such limits practically 
enforceable. As DEP explained in its own response to comments, their 
rule does not mandate CEMs, but does require monitoring with similar 
characteristics--``qualitatively equal to that of CEM.'' DEP Hearing 
Report at 182 (Nov. 14, 2001). DEP and EPA understand that two critical 
qualities of CEMs are that they are accurate in their measurement of 
emissions and they produce data virtually contemporaneously. In 
addition to making timely compliance determinations possible at the end 
of each month, such monitoring would allow an agency inspector to 
arrive mid-month and look at the monitoring records of a facility to 
determine if it is on track to meet its PTE limit at the end of a 
month. EPA believes Connecticut's

[[Page 31973]]

requirement for ``CEM or equivalent'' monitoring for 12-month rolling 
average compliance periods is a reasonable step to making such longer 
term rolling PTE limits practically enforceable. During review of title 
V permits, EPA will monitor Connecticut's implementation of the ``CEM 
or equivalent'' requirement when a 12-month rolling average is used for 
the compliance period.
    42. Comment: The commenter requested that Connecticut establish in 
the definition of ``Research and Development Operation'' a de minimis 
amount of commercial product activity in a laboratory. The commenter 
states that by adding a de minimis level to the definition, the 
definition would be consistent with EPA's proposed changes to part 70.
    Response: Connecticut did revise the proposed amendments to section 
33 with regards to how Research and Development Activities are treated. 
However, the state changes did not create a de minimis amount of 
product that could be sold commercially. Rather, the state's final rule 
essentially maintained the definition of ``Research and Development'' 
as the term was defined in the state's interim title V program which 
EPA had approved in 1997. If part 70 is amended as EPA proposed in 
1996, EPA will work with Connecticut in making any state program 
changes that the revised federal rule would require or allow.
    43. Comment: The commenter noted language appeared missing from the 
end of section 22a-174-33(j)(1)(F)(ii). ``For all other regulated air 
pollutants such limits are no [???].''
    Response: Connecticut noted in its hearing report that a software 
error had led to the deletion of phrase ``less than one (1) ton per 
pollutant per year for each emission unit'' from the commenter's copy. 
The official version of the regulation contained the missing language 
so there was no typographical error.
    44. Comment: The commenter requested that in order to take 
advantage of fuel cells, hydrogen, argon, and helium should be exempted 
in the states definition of ``air pollutant.''
    Response: Connecticut did not add the requested exemptions to the 
definition of ``air pollutant.'' The state's definition of ``air 
pollutant'' is consistent with how that term is used in part 70.
    45. Comment: One commenter inquired about EPA's assessment of 
section 22a-174-2a(f)(2)(F) in which EPA clarified that Connecticut's 
new source review program (NSR) does not include all the necessary 
elements of the title V program to allow NSR permits to be included in 
a title V permit using an administrative amendment. The commenter asked 
EPA to explain what provisions of Connecticut's new source review 
program do not meet all the requirements of sections 40 CFR 70.6, 70.7, 
and 70.8 and to specify the changes Connecticut would have to make in 
its NSR program to meet these requirements.
    Response: EPA is not prepared here to catalogue exactly how 
Connecticut might enhance its NSR program to allow for administrative 
title V permit amendments. That question is not ripe as a formal 
matter, and it would not be prudent for EPA to spell out how DEP might 
revise its NSR program without first working with DEP to sort through 
the many choices DEP would have to make about the design of such NSR 
enhancements. It is sufficient for the purposes of the decision 
currently before EPA to say that the state's NSR program does not 
contain all the substantive and procedural elements of sections 70.6, 
70.7, and 70.8--the most obvious example being that the state does not 
provide EPA an opportunity to object to NSR permits to block their 
issuance.

III. What Is the Effective Date of EPA's Full Approval of the 
Connecticut Title V Program?

    EPA is using the good cause exception under the Administrative 
Procedure Act (APA) to make the full approval of the state's program 
effective on May 31, 2002. In relevant part, the APA provides that 
publication of ``a substantive rule shall be made not less than 30 days 
before its effective date, except-- * * * (3) as otherwise provided by 
the agency for good cause found and published with the rule.'' 5 U.S.C. 
553(d)(3). Section 553(b)(3)(B) of the APA provides that good cause may 
be supported by an agency determination that a delay in the effective 
date is impracticable, unnecessary, or contrary to the public interest. 
EPA finds that it is necessary and in the public interest to make this 
action effective sooner than 30 days following publication. In this 
case, EPA believes that it is in the public interest for the program to 
take effect before June 1, 2002. In the absence of this full approval 
of Connecticut's amended program taking effect on May 31, 2002, the 
federal program under 40 CFR part 71 would automatically require some 
sources to pay operating permit fees to the federal government in 
addition to fees the sources already pay to Connecticut under state 
law. EPA believes it is in the public interest for sources to avoid 
having to pay federal fees for permits the sources would not receive, 
since a federal program would only continue for a short time after June 
1, 2002. Furthermore, a delay in the effective date is unnecessary 
because Connecticut has been administering the title V permit program 
for more than five years. Through this action, EPA is approving a few 
revisions to the existing and currently operational program. The change 
from the interim approved program which substantially met the part 70 
requirements, to the fully approved program is relatively minor, in 
particular if compared to the changes between a state-established and 
administered program and the federal program. Finally, the state 
regulations EPA is approving have been effective under state law since 
March 15, 2002. Therefore, the regulated community has had more than 30 
days to anticipate compliance with the requirements EPA is approving 
today.

IV. How Does Today's Action Affect the Part 71 Program in 
Connecticut?

    Today, EPA is fully approving Connecticut's title V program. Upon 
the effective date of this notice, the part 71 program will no longer 
be effective in Connecticut. However, a part 71 program could become 
effective at a future date if EPA makes a finding that Connecticut's 
title V program fails to meet the requirements of part 70. If such a 
finding is made, the Agency will use its authority and follow the 
procedures under section 502(i) of the CAA and 40 CFR 70.10.

V. How Does EPA's Action Affect Indian Country?

    In its program submission, Connecticut did not assert jurisdiction 
over Indian country. To date, no tribal government in Connecticut has 
applied to EPA for approval to administer a title V program in Indian 
country within the state. EPA regulations at 40 CFR part 49 govern how 
eligible Indian tribes may be approved by EPA to implement a title V 
program on Indian reservations and in non-reservation areas over which 
the tribe has jurisdiction. EPA's part 71 regulations govern the 
issuance of federal operating permits in Indian country. EPA's 
authority to issue permits in Indian country was challenged in Michigan 
v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued 
its decision in the case, vacating a provision that would have allowed 
EPA to treat areas over which EPA determines there is a question 
regarding the area's status as if it is Indian country, and remanding 
to EPA for further proceedings. EPA will respond to the court's remand 
and explain EPA's approach for further

[[Page 31974]]

implementation of part 71 in Indian country in a future action.

VI. What Are the Administrative Requirements Associated With This 
Action?

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this final 
approval will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it approves pre-existing requirements under 
state law and does not impose any additional enforceable duties beyond 
that required by state law. This rule also does not have tribal 
implications because it will 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, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). This 
rule also does not have Federalism implications because it will not 
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, ``Federalism'' (64 FR 43255, 
August 10, 1999). This rule merely approves existing requirements under 
state law, and does not alter the relationship or the distribution of 
power and responsibilities between the state and the federal government 
established in the Clean Air Act. This final approval also is not 
subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) or Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866. This action will not impose any collection 
of information subject to the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., other than those previously approved and 
assigned OMB control number 2060-0243. For additional information 
concerning these requirements, see 40 CFR part 70. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    In reviewing state operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve state programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the state to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a state 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a state program 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on May 31, 2002.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 12, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2)).

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: May 6, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by revising the entry for 
Connecticut to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
Connecticut
    (a) Department of Environmental Protection: submitted on September 
28, 1995; interim approval effective on April 23, 1997; revised program 
submitted on January 11, 2002; full approval effective May 31, 2002.
    (b) [Reserved]
* * * * *

[FR Doc. 02-11826 Filed 5-10-02; 8:45 am]
BILLING CODE 6560-50-P