[Federal Register Volume 87, Number 48 (Friday, March 11, 2022)]
[Rules and Regulations]
[Pages 13936-13945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05042]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2020-0719; FRL-9530-01-R1]
Air Plan Approval; Connecticut; Regulations To Limit Premises-
Wide Actual and Potential Emissions From Major Stationary Sources of
Air Pollution
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the State of
Connecticut. This revision approves into the Connecticut SIP state
regulations that apply restrictions on emissions of criteria pollutants
for which EPA has established National Ambient Air Quality Standards.
Separately, we are also approving Connecticut regulations that apply
restrictions on emissions of hazardous air pollutants (HAPs). The
Connecticut regulations impose legally and practicably enforceable
emissions limitations restricting eligible sources' actual and
potential emissions below major stationary source thresholds, if a
source chooses to be covered by the regulations. Such restrictions
generally allow eligible sources to avoid having to comply with
reasonably available control technology (RACT) that would otherwise
apply to major stationary sources, title V operating permit
requirements, or other requirements that apply only to major stationary
sources. This action is being taken under the Clean Air Act.
DATES: This rule is effective on April 11, 2022. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of April 11, 2022.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OAR-2020-0719. All documents in the docket
are listed on the https://www.regulations.gov website. Although listed
in the index, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available at https://www.regulations.gov or at the U.S.
Environmental Protection Agency, EPA Region 1 Regional Office, Air and
Radiation Division, 5 Post Office Square--Suite 100, Boston, MA. EPA
requests that if at all possible, you contact the contact listed in the
FOR FURTHER INFORMATION CONTACT section to schedule your inspection.
The Regional Office's official hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays and facility
closures due to COVID-19.
FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and
Indoor Programs Branch, U.S. Environmental Protection Agency, EPA
Region 1, 5 Post Office Square--Suite 100, (Mail code 05-2), Boston, MA
02109-3912, telephone 617-918-1656, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
II. Response to Comments
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background and Purpose
On February 8, 2021 (86 FR 8574), EPA published a notice of
proposed rulemaking (NPRM) for the State of Connecticut.
The NPRM proposed approval of a SIP revision consisting of
Regulations of Connecticut State Agencies (RCSA) section 22a-174-33a,
Limit on Premises-wide Actual Emissions Below 50% of Title V
Thresholds, effective September 24, 2020, and RCSA section 22a-174-33b,
Limit on Premises-wide Actual Emissions Below 80% of Title V
Thresholds, effective September 24, 2020, as the regulations relate to
criteria pollutants. The Connecticut regulations impose legally and
practicably enforceable emissions limitations restricting eligible
sources' actual and potential emissions below major stationary source
thresholds, if a source chooses to be covered by the regulations. The
NPRM separately proposed approval of RCSA sections 22a-174-33a and 22a-
174-33b under section 112(l) of the CAA, as the regulations relate to
HAPs. As noted earlier, RCSA sections 22a-174-33a and 22a-174-33b are
designed to limit air pollutant emissions from major stationary sources
to below major stationary source thresholds by including legally and
practicably enforceable restrictions on potential and actual emissions.
The formal SIP revision was submitted by Connecticut on October 26,
2020, supplemented on January 12, 2022. In the January 12, 2022 letter,
Connecticut requested to withdraw provision RCSA 22a-174-33b(d)(6) from
consideration as part of the SIP, clarified its interpretation of
several provisions, and provided additional information concerning
implementation of the regulations.
Connecticut submitted a December 21, 2020 letter requesting
approval of RCSA sections 22a-174-33a and 22a-174-33b under section
112(l) of the CAA.
The rationale for EPA's proposed approval of the SIP revision and
CAA 112(l) submittal is explained in the NPRM and will not be restated
here.
II. Response to Comments
We received three comments that supported this action. One
commenter stated that they support approval of the rule. One commenter
stated it is important that air quality plans are passed and that clean
air quality is crucial for anyone in any state. One commenter supports
approval of the rule and believes that a limit on emissions should
occur because of concerns that an increase of pollution affects air
quality; the commenter also made additional statements not germane to
this action. The following provides our responses to adverse comments
received.
Comment 1: The commenter could not access the docket for this
rulemaking and could not find any results on Regulations.gov.
Response: The docket was available on February 8, 2021, the
publication date of the proposal. The commenter emailed comments on
February 7th, after the pre-publication proposed rule was posted, but
one day prior to the proposed rule's publication in the Federal
Register on February 8th. The docket only becomes available on the
actual date that a Rulemaking publishes in the Federal Register, and
that it is typically available by 10 a.m. EST. We informed the
commenter on February 8th that the docket was available.
Comment 2: The commenter was concerned that RCSA section 22a-174-
[[Page 13937]]
33a ignores, in the definition of Hazardous Air Pollutant (HAP) in
section (a)(4), HAPs added to the CAA 112(b) HAPs list. The commenter
pointed out that there are several petitions in front of EPA, being
reconsidered by EPA, or headed for or in litigation to add HAPs to the
HAPs list. The commenter asserted that 22a-174-33a would ignore these
added HAPs and thus isn't approvable. The commenter stated that without
a change in the regulation to address this issue, sources could be over
the major source threshold, and would not be covered by the regulation,
by virtue of a HAP which is added to the HAP list but does not appear
in CAA 112(b). The commenter submitted the same comment in relation to
Connecticut's regulation at RCSA 22a-174-33b.
Response: The definition of Hazardous Air Pollutant (HAP) in
Section 22a-174-33a(a)(4) and 33b(a)(10) means ``notwithstanding the
definition in Section 22a-174-1 of the Regulations of Connecticut State
Agencies (RCSA), any air pollutant listed in section 112(b) of the
Federal Clean Air Act excluding any air pollutants that are removed
from such list.'' We agree that Connecticut's definition does not
include air pollutants that are added to the list. However, this should
not be a reason to disapprove Connecticut's requested CAA 112(l)
submission. On January 5, 2022, EPA added a new HAP, 1-bromopropane, to
the CAA HAP list by amending 40 CFR part 63, subpart C. (See 87 FR 393)
As a result, Connecticut should now amend its regulations to add 1-
bromopropane to its definition of Hazardous Air Pollutant so that
sources emitting 1-bromopropane may be covered by Connecticut's
regulation. EPA could then approve a subsequent State submittal
including 1-bromopropane under Section 112(l). It is not a legal
requirement of the CAA that all sources be regulated by the regulation
in question. A source that is a major source if not regulated pursuant
to this CAA 112(l) approval will have to comply with any applicable
major source requirements unless and until Connecticut amends its rule
to include the added HAP. In a letter dated January 12, 2022,
Connecticut Department of Energy and Environmental Protection (DEEP)
clarified its implementation with respect to HAPs added to the HAP
list. Connecticut's January 12, 2022 letter provided that ``To the
extent that a hazardous air pollutant (HAP) is added to the Clean Air
Act (CAA) HAP list but does not appear in CAA Section 112(b), if DEEP
identifies a facility with potential emissions of such a HAP not listed
in CAA Section 112(b), DEEP shall not allow such facility to operate
under RCSA section 22a-174-33a or RCSA section 22a-174-33b until such
time as DEEP adopts regulatory revisions to include such a newly listed
HAP within the definitions that apply to RCSA sections 22a-174-33a and
22a-174-33b. As 1-bromopropane has recently been added to the CAA list
of HAPs and does not appear in CAA Section 112(b), neither RCSA section
22a-174-33a nor RCSA section 22a-174-33b is a regulatory compliance
option available for a facility that emits 1-bromopropane to limit the
potential to emissions [sic] of criteria pollutants and hazardous air
pollutants.'' Thus, the commenter's concerns are unwarranted.
Comment 3: The commenter was concerned that section (d)(1) of
Connecticut's regulation ignores VOC and NOX emissions in
areas that are marginal, moderate, or extreme ozone nonattainment
areas, as well as areas designated attainment but located inside the
ozone transport region. Connecticut currently contains one marginal
ozone nonattainment area and one moderate nonattainment area for the
2015 ozone National Ambient Air Quality Standard (NAAQS). The commenter
asserted that the fact that those areas are currently designated as
serious nonattainment areas for the 2008 ozone NAAQS does not fix this
problem as that could change in the future if those areas were
redesignated to attainment for the 2008 ozone NAAQS. The commenter
believes the current rule would leave a gap by not placing emission
limits on NOX and VOC emissions and thus is not approvable.
The commenter asserts that the same is true if those areas were to be
``bumped up'' to extreme nonattainment areas for the 2008 ozone NAAQS.
The same comment was submitted for Connecticut's regulation at RCSA
22a-174-33b.
Response: By definition, any source in Connecticut eligible to be
regulated by this rule could avail itself of the limits contained
within the regulation. The definition of ``Serious non-attainment area
for ozone'' in Connecticut's SIP-approved regulation at RCSA Section
22a-174-1 means ``all towns within the State of Connecticut, except
those towns located in the severe non-attainment area for ozone.'' The
SIP-approved definition of ``Severe non-attainment area for ozone'' in
Connecticut's regulation at RCSA 22a-174-1 means the towns of Bethel,
Bridgeport, Bridgewater, Brookfield, Danbury, Darien, Easton,
Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, New Milford,
Newtown, Norwalk, Redding, Ridgefield, Sherman, Stamford, Stratford,
Trumbull, Weston, Westport, and Wilton. These serious and severe non-
attainment areas, as defined, represent Connecticut's nonattainment
area classifications under the one-hour ozone standard, encompassing
all locations in the State of Connecticut and thereby all sources
eligible to be regulated by this rule. Because Connecticut's
regulations define all areas as serious nonattainment for ozone, except
for towns located in a severe nonattainment area for ozone, the state
definitions are equivalent to or more stringent than the current
classifications under the 2008 and 2015 ozone standards. EPA can
request in the future that Connecticut amend its regulation if any area
in Connecticut were to be reclassified. Reclassifying an area, for
example from serious to severe, would be done through a proposed and
final rulemaking process. Connecticut would then have to make any
regulatory changes as needed. In addition, in a letter dated January
12, 2022, Connecticut stated that ``To the extent that EPA changes the
ozone attainment designations applicable to Connecticut, DEEP will act
with all due haste to make necessary revisions to the relevant
definitions in Connecticut's regulations and in the SIP.''
Comment 4: The commenter was concerned that RCSA 33a(d)(4)(F) is a
``director's discretion'' provision which the commenter asserted is
illegal. The same comment was submitted for Connecticut's regulation at
RCSA 22a-174-33b(d)(4)(F).
Response: Connecticut's regulations at sections 33a(d)(4)(F) and
33b(d)(4)(F) provide that ``if the data in subparagraphs (A), (B), (C),
(D) and (E) of this subdivision are unavailable, the emission rate
shall be calculated using another source of emissions data that is
approved by the Commissioner and the Administrator. Such approval shall
be obtained prior to operating in accordance with this section.'' In a
letter dated January 12, 2022, Connecticut clarified implementation of
these provisions. Connecticut stated that ``Sections 22a-174-
33a(d)(4)(F) and 22a-174-33b(d)(4)(F) of the Regulations of Connecticut
State Agencies (RCSA) are the final alternatives in a hierarchy of data
acceptable for a source owner to determine actual emissions. The two
provisions allow for the use of data not otherwise specified in the
hierarchy with the prior approval of the Commissioner and
Administrator. DEEP understands the approval of the Commissioner and
Administrator to be achieved via DEEP's submission of a
[[Page 13938]]
single-source SIP revision that would be subject to the procedural
requirements of 40 CFR part 51, subpart F, and DEEP will proceed
according to this understanding should any requests be received under
one of these two provisions. DEEP further understands that such
exercise of discretion will not have an effect on the existing SIP
requirement until such time as the single-source SIP revision has been
approved by the Administrator.'' The commenters concerns are
unwarranted because any alternatives approved by EPA and DEEP under
RCSA Sections 33a(d)(4)(F) or 33b(d)(4)(F) would be accomplished by a
SIP revision with an opportunity for public review and comment.
Comment 5: The commenter stated that the regulations are not
enforceable as a practical matter because they do not ensure actual
emissions stay below the thresholds in section (d)(1) of the
regulation. Section (d)(4)(A) requires the use of a Continuous Emission
Monitoring System (CEMS) if the data is available. The commenter was
concerned that while CEMS are a good monitoring method, Section
(d)(4)(A) does not require data substitution or gap filling when CEMS
data for certain time periods are not available, and potential to emit
and actual emissions that trigger title V and reasonably available
control technology (RACT) applicability don't allow for ignoring
emissions. The commenter asserted that, for example, CEMS are often not
required to gather data during periods of startup and shutdown even
though some emission sources, such as combustion devices, can have
substantially higher emissions during those periods. The commenter
cites generally to Weiler v. Chatham Forest Products, 392 F.3d 532, 535
(2nd Cir. 2004). Also, the commenter stated that CEMS have downtime,
both planned downtime to do testing and also unplanned downtime, and
section (d)(4)(A) of Connecticut's regulation does not address these
situations so it would be arbitrary and capricious for EPA to approve
this regulation.
The commenter was concerned that Section (d)(4)(B) suffers from
similar flaws as discussed above but much worse. For example, the
commenter asserted that stack tests are not performed during startups
or shutdowns. The commenter stated that by using stack test data to
calculate ``actual'' emissions on an annual basis, Section (d)(4)(B)
ignores an important part of the problem, that is actual emissions
during periods of startup, shutdown, process malfunctions, control
equipment malfunctions or operations at different parameters that are
not startup and shutdown. The commenter stated that the problem isn't
limited to startup or shutdown. The commenter stated that the fact that
a source emitted at a certain rate during a stack test does not prove
that a source emits at that same rate every other hour that it
operates. The commenter stated that this flaw is further compounded by
the lack of a requirement for the frequency of stack testing, because a
stack test performed 20 years ago, for example, provides no reliable
data on current emissions.
The commenter was concerned that Section (d)(4)(C) of Connecticut's
regulation suffers from the same problems discussed above but noted
that it also ignores a host of other considerations. The commenter
questioned whether, for example, the source that is going to use this
rule is defective in some way or not properly installed. The commenter
stated that if that is the case, the manufacturers' testing doesn't
provide reliable data on emissions from the source in question. The
commenter pointed to the introduction section of AP-42, Compilation of
Air Pollutant Emission Factors, which states ``Average emissions differ
significantly from source to source and, therefore, emission factors
frequently may not provide adequate estimates of the average emissions
for a specific source. The extent of between-source variability that
exists, even among similar individual sources, can be large depending
on process, control system, and pollutant. Although the causes of this
variability are considered in emission factor development, this type of
information is seldom included in emission test reports used to develop
AP-42 factors.'' As a result, some emission factors are derived from
tests that may vary by an order of magnitude or more. Similarly, the
commenter was concerned whether the conditions of the source in any way
match the conditions of the manufacturer's test. The commenter stated
that if the manufacturer did its testing in a high-altitude desert,
that could create radically different conditions from sea level winter
conditions than a source in Connecticut faces. The commenter stated
that this difference in altitude and weather can result in very
different combustion and evaporation conditions which change emissions.
The commenter was concerned that Sections (d)(4)(D) and (E) are
much worse than prior sections of Connecticut's regulation and use
calculations which are in no way rationally related to actual
emissions. The commenter believes that these sections allow the use of
absolutely no actual emissions data to determine ``actual'' emissions
and that they suffer from most of the same faults discussed above.
Furthermore, the commenter questioned how a pertinent material balance
would account for thermal NOX emissions, that is
NOX that is formed in combustion processes because our air
is 78% nitrogen, regardless of the composition of the fuel. The
commenter stated that thermal NOX formation is greatly
influenced by temperature in combustion processes but (d)(4)(D) does
not require any parametric monitoring, much less restrictions, on
operating temperature. Thus, the commenter states the rule is ignoring
this important aspect of the problem such that the calculated emissions
from application of (d)(4)(D) would not be rationally related to actual
emissions. As to AP-42, the commenter stated that EPA's position has
been that AP-42 should not be used for ensuring compliance with
synthetic minor limits. The commenter stated that AP-42 clearly states
that it is used for ``estimating emissions'', See, e.g., AP-42
Introduction at 1, but a synthetic minor limit is not an estimate. The
commenter stated that actual and potential to emit emissions have to be
below the applicable threshold. The commenter asserted that actual
emissions and an estimate of emissions are two separate things; that
AP-42 emission factors come with ratings. The commenter stated that a
``D'' rating is below average and an ``E'' rating is poor. See AP-42
Introduction at 10. The commenter stated that Section (d)(4)(E) allows
the use of even emission factors which EPA itself describes as
``Poor'', and it is arbitrary for EPA to allow the use of ``Poor''
``estimates'' to provide actual emissions.
Therefore, the commenter believes EPA must disapprove this SIP
submittal.
The commenter submitted the same comments in relation to
Connecticut's regulation at RCSA 22a-174-33b.
Response: The Commenter asserts that ``the regulations are not
enforceable as a practical matter because they do not ensure actual
emissions stay below the thresholds in section (d)(1).'' As a general
matter, a source may avoid treatment as a major source if its
``potential to emit'' (PTE) pollutants is below the relevant major
source thresholds. See for example the definition of ``major source''
in 40 CFR part 63, subpart A, and 40 CFR 70.2. In addition, 40 CFR 63.2
defines ``potential to emit'' as the maximum capacity of a stationary
source to emit a pollutant under its physical and operational design.
Any physical or operational limitation on the capacity of the
[[Page 13939]]
stationary source to emit a pollutant, including air pollution control
equipment and restrictions on hours of operation or on the type or
amount of material combusted, stored, or processed, shall be treated as
part of its design if the limitation or the effect it would have on
emissions is enforceable. The Connecticut regulations under RCSA
section 22a-174-33a allow sources to elect to comply with emission
limitations set at 50% of the title V operating permit program
thresholds for a major source; or, alternatively, under RCSA section
22a-174-33b, certain specified source categories may commit to be
limited to emissions up to, but no more than, 80% of the title V
operating permit program thresholds for a major stationary source
provided the owner or operator conducts the additional specified
monitoring and any other additional requirements required by RCSA 22a-
174-33b for the relevant source category. The commenter essentially
maintains that the limits in question are not enforceable because of
flawed or inadequate methods for determining compliance with the
applicable limits.
Connecticut's RCSA sections 22a-174-33a and 22a-174-33b require the
owner or operator committing to operate pursuant to the applicable
regulations to submit a notification to the State and to keep records
that include, among other things, calculation of a source's actual
emissions on a monthly and 12-month rolling basis for regulated air
pollutants and a detailed description of the methodology used to
calculate those actual emissions. The methodology used by an eligible
source to calculate emissions must be selected from a preferential
hierarchy of methodologies explicitly identified in the regulations.
The commenter cites generally to Weiler v. Chatham Forest Products,
392 F.3d 532, 535 (2nd Cir. 2004), which held that a group of citizens
could bring an action under CAA 304(a)(3) against an owner or operator
of a proposed source for which New York had issued a synthetic minor
source construction permit, where the citizens contended that the
controls or limitations on the source's potential to emit were neither
practicably effective nor enforceable and where the source was to be
constructed in a nonattainment area. The Court concluded that the plain
language of the CAA allowed citizen suits to challenge a state's
determination that no major source permit is necessary. In reaching
this conclusion, the Court reviewed EPA's treatment of a source's
``potential to emit,'' as relevant to determining whether a source is a
major source, and summarized EPA's position that a source that
otherwise might be considered a major emitting facility may be treated
as not such a source if ``there are legally and practicably enforceable
mechanisms in place to make certain that the emissions remain below the
relevant levels.'' The Court did not reach the question of whether the
controls or limitations at issue in New York were ``legally and
practicably enforceable.'' Connecticut's regulation is legally
enforceable because it was properly promulgated under state law. In
addition, Connecticut's regulation states that no owner or operator of
any premises operating in accordance with the rule shall cause or allow
the emission of any regulated air pollutant during each and every
consecutive 12-month period to be equal to or exceed the emission
limitations in the regulation.
Connecticut's approach was developed in accordance with an EPA
guidance document titled ``Options for Limiting Potential to Emit of a
Stationary Source under Section 112 and Title V of the Clean Air Act,''
issued by John Seitz, Office of Air Quality Planning and Standards
(OAQPS) to EPA Air Division Directors, dated January 25, 1995 \1\
(January 25, 1995 OAQPS PTE memorandum). This guidance lays out the key
criteria for practical enforceability of limits on PTE, which EPA later
incorporated into its rationale, in part, for the 2002 New Source
Review (NSR) Reform rule (2002 final rule).\2\ In the 2002 final rule,
EPA stated that practical enforceability for a source-specific permit
will be achieved if the permit's provisions specify: (1) A technically-
accurate limitation and the portions of the source subject to the
limitation; (2) the time period for the limitation (hourly, daily,
monthly, and annual limits such as rolling annual limits); and (3) the
method to determine compliance, including appropriate monitoring,
recordkeeping, and reporting. For rules and general permits that apply
to categories of sources, practicable enforceability additionally
requires that the provisions: (1) Identify the types or categories of
sources that are covered by the rule; (2) where coverage is optional,
provide for notice to the permitting authority of the source's election
to be covered by the rule; and (3) specify the enforcement consequences
relevant to the rule. EPA also stated in the 2002 final rule that ``
`[e]nforceable as a practical matter' will be achieved if a requirement
is both legally and practically enforceable.'' Among several other
provisions, the 2002 final rule established provisions for Plantwide
Applicability Limitations (PALs).\3\
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\1\ The January 25, 1995 OAQPS memo was predicated on a view
that federal enforceability is an essential element in establishing
potential to emit limits. A court decision in the National Mining
Association (NMA) v. EPA, 59 F.3d 1351, 1363-1365 (D.C. Cir. 1995)
remanded the Federal enforceability provision. Consistent with this
decision, EPA's longstanding policy allows for any physical or
operational limitation on the capacity of the stationary source to
emit a pollutant to be treated as part of the source's design if the
limitation or the effect it would have on emissions is, first,
either federally enforceable or legally enforceable by a state or
local permitting authority and, second, practicably enforceable. See
December 20, 1999, memorandum titled ``Third Extension of January
25, 1995 Potential to Emit Transition Policy.'' Available in the
docket for this rulemaking.
\2\ PSD and NSR: Baseline Emissions Determination, Actual-to-
Future-Actual Methodology, Plantwide Applicability Limitations,
Clean Unit, Pollution Control Projects. 67 FR 80190-80191 (December
31, 2002).
\3\ The PAL regulations were upheld by the Court in New York v.
EPA, 413 F.3d 3, 22 (D.C. Cir. 2005).
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To make a PAL enforceable as a practical matter, the EPA
regulations require a source to conduct monitoring, recordkeeping and
reporting of the actual emissions of a PAL pollutant on a 12-month
rolling total basis. A PAL monitoring system must employ one or more of
four general approaches meeting minimum requirements specified in the
regulations. These include mass balance calculations for activities
using coatings or solvents, CEMS, continuous parameter monitoring
systems (CPMS) or predictive emissions monitoring systems (PEMS), and
emission factors. 40 CFR 52.21(aa)(12)(i)(b), (aa)(12)(ii). The
regulations also provide for alternative monitoring approaches that are
approved by the reviewing authority. 40 CFR 52.21(aa)(12)(i)(c).
Connecticut's RCSA Sections 33a and 33b contain monitoring and
recordkeeping requirements that are substantially consistent with those
in the EPA PAL regulations, supporting the conclusion that the limits
in Connecticut's RCSA Sections 33a and 33b are enforceable as a
practical matter.
As stated above, EPA's January 25, OAQPS PTE memorandum and EPA's
2002 final rule provide specific criteria for practical enforceability
to be achieved. Connecticut's rules include requirements that meet
these criteria. Specifically, 33a(d) and 33b(d) specify technically-
accurate emission limitations that apply premises-wide on a 12-month
rolling annual basis. Sections 33a(d) and 33b(d) specify a preferential
hierarchy for determining compliance with the emission limitations, as
well as monitoring, reporting and recordkeeping. In addition, Sections
33a(g) and 33b(h) require a notification to the permitting
[[Page 13940]]
authority for sources that elect coverage under the rules. Sections
33a(b) and 33b(c) include duty to comply provisions, as well as a
required certification statement in 33a(c) and 33b(k) to be submitted
that the information submitted is true, accurate and complete. These
provisions require the certifier to acknowledge that any false
statements may be punishable as a criminal offense under Connecticut's
statutes. In addition, Sections 33a(j) and 33b(k) provide that nothing
in these sections precludes the Commissioner from requiring a source to
obtain a title V operating permit. Lastly, Sections 33a(f)(2)(A) and
33b(g)(3)(A) require the owner or operator to determine the cause of
any emission limitation exceedance, correct such exceedance, mitigate
its results, and prevent any further exceedance.
In addition to providing practical enforceability criteria, the
January 25, 1995 OAQPS PTE memo indicates that one approach to
establishing appropriately enforceable limitations is by general rules
creating enforceable restrictions at one time for many sources. The
memo discusses a California model rule developed in consultation with
EPA as an example of such an approach. The California model rule is
designed to place smaller sources under annual emissions limits which
restrict their ``potential to emit'' and thus their exposure to ``major
source'' requirements of the Clean Air Act. The California model rule
ensures compliance with the annual limit through a series of
recordkeeping and reporting requirements. These requirements are
tapered to reduce burdens as source size (as it relates to emissions)
decreases. The California model rule provides a hierarchy of data for
sources to calculate actual emissions for every consecutive 12-month
period.
Connecticut's RCSA Sections 33a and 33b are consistent with the
approach taken in the California model rule, cited approvingly as an
example by EPA. The California model rule and Connecticut's rules
require a detailed hierarchy for sources to calculate emissions.
Specifically, Connecticut's Section 22a-174-33a(d)(4) requires:
(A) If data are available from CEM equipment, such data shall be
used to determine the rate of emissions. Only CEM installed,
operated, and certified in accordance with a permit or order,
regulation issued or administered by the Commissioner or the
Administrator, or a Commissioner approved voluntarily installed CEM
may be used to satisfy the requirements of this subdivision;
(B) If the data in subparagraph (A) of this subdivision are
unavailable but stack testing data are available, such stack testing
data shall be used to determine the rate of emissions, provided such
testing was conducted in accordance with protocols approved in
writing by the Commissioner or the Administrator in advance of
testing and a representative of the Commissioner or the
Administrator was provided the opportunity to witness such testing;
(C) If the data in subparagraphs (A) and (B) of this subdivision
are unavailable, the rate of emissions shall be calculated using
data supplied by the manufacturer of the subject emission unit or
units, which data were derived from EPA approved emissions testing
of such unit performed by or for the manufacturer;
(D) If the data in subparagraphs (A), (B) and (C) of this
subdivision are unavailable, the rate of emissions shall be
calculated using data derived from an analysis of pertinent material
balances;
(E) If the data in subparagraphs (A), (B), (C) and (D) of this
subdivision are unavailable, the rate of emissions shall be
calculated using the data or emissions estimation technique from the
following EPA publications that results in the highest rate of
emissions:
(i) Compilation of Air Pollutant Emission Factors (AP-42),
(ii) AIRS Facility Subsystem Emission Factors, or
(iii) The Emission Inventory Improvement Program; and
(F) If the data in subparagraphs (A), (B), (C), (D) and (E) of
this subdivision are not available, the emission rate shall be
calculated using another source of emissions data that is approved
by the Commissioner and the Administrator. Such approval shall be
obtained prior to operating in accordance with this section.
Connecticut's rules include a preferential hierarchy to use the
best data to calculate actual emissions when available. Actual
emissions are required to be calculated for the premises for each and
every consecutive 12-month period. Connecticut set the emissions
limitation in Section 33a at 50% of the major source threshold to
create a sufficient buffer to account for variability that may exist in
calculating emissions using the methods allowed in the preferential
hierarchy. Section 33b sets the premises wide limit to below 80% of the
major source threshold for certain source categories and requires
additional monitoring and recordkeeping for these source categories.
In addition to the preferential hierarchy, Connecticut's RCSA
Sections 33a and 33b also require detailed records and emissions
calculations including a log of:
(i) The total amount of fuels, solvents, coatings, raw
materials, or other such material, used by each emission unit during
each month,
(ii) An identification of such fuels, solvents, coatings, raw
materials, or other such material used, by each emission unit during
each month,
(iii) The actual operating hours of each emission unit during
each month, as necessary to calculate emissions,
(iv) Any other documentation the Commissioner deems necessary to
reliably calculate the emission of air pollutants regulated under
this section, and
(v) All purchase orders, invoices, Material Safety Data Sheets,
test results, certifications or other documents necessary to verify
information and calculations in the monthly log.
In addition, Connecticut's RCSA 33a and 33b require sources to
maintain a log of annual actual emissions of each regulated air
pollutant emitted from the premises, including a detailed description
of the methodology the owner or operator used to calculate such
emissions and the basis thereof.
Connecticut's 33a and 33b also require the facility to submit
annual compliance certifications. Section 33b, which limits sources to
up to, but not more than, 80% of the major title v operating source
threshold, requires sources with actual emissions >50% of the major
source threshold to report emissions for each and every 12-month
period. Sections 33a and 33b further allow DEEP to request any
additional information in writing to verify actual emissions. (See RCSA
22a-174-33a(f) and 33b(g)) Connecticut's rules also require sources to
maintain records of any other documentation the Commissioner deems
necessary to reliably calculate the emission of air pollutants
regulated. (See RCSA 22a-174-33a(e)(1)(B)(iv) and 33b(f)(1)(B)(iv))
In addition to this regulatory oversight of sources by the State,
in a letter dated January 12, 2022, Connecticut provided that:
DEEP has a robust federally enforceable minor source new source
review (NSR) permit program that governs operations of individual
pieces of equipment. Section 22a-174-33a and Section 22a-174-33b do
not shield pieces of equipment from Connecticut's minor source NSR
program. Consequently, pieces of equipment subject to minor source
NSR at facilities operating under RCSA Section 22a-174-33a or
Section 22a-174-33b would be subject to Best Achievable Control
Technology, ambient air quality impact analysis, monitoring, record
keeping and reporting to assure compliance with individual pollutant
limits contained in the permits. Permits for many pieces of
equipment require periodic emissions testing and/or continuous
emission monitoring systems (CEMS) to assure compliance with permit
limits. The permits contain limits on allowable materials, material
composition and material throughput and include monitoring, record
keeping and reporting to assure that sources are operating as
expected. Where applicable, many permits limit startup and shutdown
emissions and require
[[Page 13941]]
monitoring and record keeping of startup and shutdown emissions to
assure compliance with annual emissions limits.
Finally, concerning DEEP's compliance oversight of sources
operating under RCSA sections 22a-174-33a and -33b, DEEP offers the
following information. . . . DEEP's five-year inspection frequency
for RCSA section 22a-174-33b sources is consistent with the
frequency stipulated in EPA's CAA CMS policy for synthetic minor 80
percent (SM-80) sources. Note that under EPA's CAA CMS, an SM-80
source is one with a premises-wide potential to emit (including any
federally or legally and practicably enforceable physical or
operational limitations on such source's capacity) greater than or
equal to 80% and less than 100% of the major source thresholds,
whereas an RCSA section 22a-174-33b source is limited to premises-
wide emissions less than 80% of the major source thresholds. See
EPA's CAA Stationary Source CMS, October 2016, section IV [available
in the docket for this rulemaking]. Since EPA's CMS does not
establish a minimum inspection frequency for true minor sources or
synthetic minor sources that do not qualify as SM-80s, the five-year
FCE [full compliance evaluation] frequency to which DEEP has
committed for the RCSA section 22a-174-33b source universe is more
stringent than required by EPA's CMS.
Sources operating under RCSA section 22a-174-33a are subject to
inspection at DEEP's discretion. Such inspections may take the form
of an on-site FCE or an off-site partial compliance evaluation
(e.g., the issuance of an information request under RCSA section
22a-174-4 and the subsequent inspection of responsive records).
In inspecting synthetic minor sources operating under RCSA
sections 22a-174-33a and -33b, DEEP ensures proper calculation of
facility-wide emissions, including the appropriateness of the
selected emission factors, pursuant to the hierarchy of emission
calculation methodologies established in subsection (d)(4) of either
regulation. This approach is consistent with DEEP's handling of
sources previously registered under DEEP's General Permit to Limit
the Potential to Emit (GPLPE). In inspecting sources that calculate
emissions using CEMS data, DEEP ensures that such CEMS meet
applicable performance specifications, quality assurance (QA)
requirements, and operational requirements by (i) reviewing relative
accuracy test audit (RATA) protocols and results and auditing such
test programs as resources allow; (ii) reviewing quarterly excess
emission and downtime reports; (iii) verifying that the required QA
activities are completed and passed; and (iv) during on-site FCEs,
conducting a physical inspection of the CEMS. In inspecting sources
that calculate emissions using stack test data, DEEP ensures the
validity of stack testing--including the utilization of appropriate
test methods, conformance with such methods, and the proper
reduction and accuracy of the test results--by reviewing all stack
test protocols and results and auditing such test programs as
resources allow. Furthermore, DEEP verifies that testing is
conducted under the most challenging representative operating
conditions. See, e.g., EPA's CAA National Stack Testing Guidance,
April 2009, section 5 and DEEP's Source Emission Monitoring Test
Guidelines, Version 2.0, April 2019, section 8 [available in the
docket for this rulemaking].
Furthermore, consistent with its handling of GPLPE reports, DEEP
reviews all reports submitted in accordance with RCSA sections 22a-
174-33a and -33b upon their submission, including annual compliance
certifications; emission exceedance reports; and, for sources
operating under RCSA section 22a-174-33b, annual emission reports.
In reviewing emission reports, DEEP ensures proper calculation of
facility-wide emissions, including the appropriateness of the
selected emission factors, pursuant to the hierarchy of emission
calculation methodologies established in the regulations.\4\
---------------------------------------------------------------------------
\4\ EPA notes that when Connecticut DEEP refers to the GPLPE,
they are referring to a prior general permit designed to limit air
pollutant emissions from major stationary sources to below major
source thresholds by including legally and practicably enforceable
permit restrictions on potential and actual emissions. Connecticut
adopted new RCSA sections 22a-174-33a and 22a-174-33b as a
replacement program for the GPLPE. On April 24, 2017, EPA approved
Connecticut's GPLPE issued on November 9, 2015. See 82 FR 18868.
In summary, Connecticut's regulatory scheme includes significant
oversight; emission limitations containing a sufficient buffer below
the major source thresholds to account for variability that may exist
in calculating emissions; the requirement to use methods to calculate
emissions from a preferential hierarchy; and requirements for
monitoring, reporting and recordkeeping. The overall regulatory scheme
is based on a model rule contained in EPA guidance, California's model
rule, and establishes a program that EPA finds legally and practicably
enforceable to limit a sources potential to emit.
While EPA provides a general response to the adverse comment above,
for purposes of clarity, below we have broken down the comment into its
specific parts and provide additional responses for specific issues
raised within the comment.
Comment 5a: The commenter stated that while CEMS are a good method,
Section (d)(4)(A) does not require data substitution or gap filling
when CEMS data for certain time periods are not available, and that
potential to emit and actual emissions which trigger title V and RACT
applicability don't allow for ignoring certain periods of emissions.
The commenter is concerned about periods of startup and shutdown when
CEMS may not be operating or other times when CEMS data is unavailable.
The commenter states that CEMS are often not required to gather data
during periods of startup and shutdown even though some emission
sources, such as combustion devices, can have substantially higher
emissions during those periods and cites generally to Weiler v. Chatham
Forest Products, 392 F.3d 532, 535 (2nd Cir. 2004). The commenter also
stated that CEMS have downtime, both planned downtime to do testing and
unplanned downtime, and because (d)(4)(A) does not address this, it
would be arbitrary and capricious for EPA to approve this.
Response: EPA disagrees with the commenter and finds that the
portions of Connecticut's rules that allow for calculating premises-
wide emissions using CEMS data sufficiently accounts for determining
actual emissions over a 12-month rolling period. Only CEMS installed,
operated, and certified in accordance with a permit, order, or
regulation issued or administered by the Commissioner or EPA, or a
Commissioner approved voluntarily installed CEMS may be used to
calculate emissions. (See RCSA 33a(d)(4)(A) and 33b(d)(4)A)) In
addition, the regulations specify when data from CEMS are not
available, the next method in the hierarchy, if available, is to be
used to calculate emissions, so the regulations do not allow data gaps
in calculating actual emissions. Connecticut's CEMS rules do not allow
for the exclusion of startup and shutdown emissions. Connecticut's CEMS
regulations also specify quality assurance requirements for CEMS,
minimum CEMS data availability, and prohibit shutdown of monitoring
equipment. (See RCSA 22a-174-4(c)(4)-(5), and 22a-174-7) Connecticut's
regulations specify that CEMS data shall be available no less than 90%
of the total operating hours of a source per calendar quarter, except
for sources operated less than 336 hours and approved by the
Commissioner. In addition, Connecticut's rule is written to provide a
sufficient buffer below the major source threshold by setting the
premises-wide limit to below 50% of the major source threshold or
alternatively, setting the premises-wide limit in Connecticut's 33b to
below 80% of the major source threshold for certain source categories
with additional required monitoring and recordkeeping. Connecticut's
requirements for minimum CEMS data availability ensure that sufficient
data is being collected for calculating emissions, which combined with
the buffer below the major source thresholds, ensure that sources'
emissions stay below the major source thresholds. In light of the
overall regulatory scheme, the PTE limits in Connecticut's regulation
are not
[[Page 13942]]
rendered practicably unenforceable because of the use of CEMS.
Comment 5b: The commenter was concerned that stack tests are not
performed during startups or shutdowns. The commenter stated that by
using stack test data to calculate ``actual'' emissions on an annual
basis, Section (d)(4)(B) ignores an important part of the problem, that
is actual emissions during periods of startup, shutdown, process
malfunctions, control equipment malfunctions or operations at different
operating periods that are not startup and shutdown. The commenter
asserted that the problem isn't limited to startup or shutdown because
the fact that a source emitted at a certain rate during a stack test
does not prove that a source emits at that same rate every other hour
that it operates. The commenter asserted that this flaw is further
compounded by the lack of a requirement for the frequency of stack
testing. The commented asserted that a stack test performed 20 years
ago, for example, provides no reliable data on current emissions.
Response: Connecticut's 33a(d)(4)(B) and 33b(d)(4)(B) only allow
stack tests if such testing is conducted in accordance with protocols
approved in writing by the Commissioner or the Administrator in advance
of testing and when a representative of the Commissioner or the
Administrator has been provided the opportunity to witness such
testing. Should parametric monitoring, specifically required by RCSA
22a-174-33b, indicate that operations are outside of the ranges
occurring during the most recent test, or for any other reason,
Connecticut has the authority to mandate emissions testing to assure
compliance with applicable limits under RCSA 22a-174-5(e)(2). In
addition, Connecticut's rule is written to provide a sufficient buffer
below the major source threshold by setting the premises wide limit to
below 50% of the major source threshold or alternatively, setting the
premises wide limit in Connecticut's 33b to below 80% of the major
source threshold for certain source categories with additional required
monitoring and recordkeeping. Although stack tests are not conducted
during startup or shutdown, stack tests are required to be conducted
under conditions representative of a source's operations and that would
be reviewed during the required approval of the test protocol. Stack
test data, combined with the buffer below the major source thresholds,
ensure that sufficient data is being collected to ensure that sources'
emissions stay below the major source thresholds. In light of the
overall regulatory scheme, the PTE limits in Connecticut's regulations
are not rendered practicably unenforceable because of the allowance for
stack testing.
Comment 5c: Regarding manufacturers' data to calculate emissions,
the commenter is concerned that the manufactures' testing may not
provide reliable data on emissions from the source in question if the
source that is going to use this rule is defective in some way or not
properly installed. The commenter is also concerned about the
conditions of the source matching the conditions of the manufacturer's
test. The commenter states that if the manufacturer did its testing in
a high-altitude desert, that could create radically different
conditions from sea level winter conditions that a source in
Connecticut faces. This difference in altitude and weather can result
in very different combustion and evaporation conditions which change
emissions.
Response: Connecticut's 33a(d)(4)(C) and 33b(d)(4)(C) only allow
the rate of emissions to be calculated using data supplied by the
manufacturer of the subject emission unit or units, when such data were
derived from EPA approved emissions testing of such unit performed by
or for the manufacturer. Should parametric monitoring, specifically
required by RCSA 22a-174-33b, indicate that operations are outside of
the ranges occurring during the most recent test, or for any other
reason, Connecticut has the authority to mandate emissions testing to
assure compliance with applicable limits under RCSA 22a-174-5(e)(2).
Regarding the commenter's concern that the source may be defective or
not installed properly, Connecticut's RCSA 22a-174-7(b) prohibits the
deliberate shut down of air pollution control equipment or monitoring
equipment except to perform maintenance as specified. In addition,
Connecticut has committed to conduct inspections every 5 years for
sources covered by RCSA 22a-174-33b, and sources covered by RCSA 22a-
174-33a are subject to inspection at DEEP's discretion. Lastly,
Connecticut's rule is written to provide a sufficient buffer below the
major source threshold by setting the premises wide limit to below 50%
of the major source threshold or alternatively, setting the premises
wide limit in Connecticut's 33b to below 80% of the major source
threshold for certain source categories with additional required
monitoring and recordkeeping. Manufacturers' test data, combined with
Connecticut's oversight and the buffer below the major source
thresholds, ensures that sufficient data is being collected to ensure
that sources stay below the major source thresholds. In light of the
overall regulatory scheme, the PTE limits in Connecticut's regulations
are not rendered practicably unenforceable by the allowance, under
certain circumstances, of the use of manufacturers' data to calculate
emissions.
Comment 5d: The commenter is concerned that 33a(d)(4)(D) and
33b(d)(4)(D), a requirement in the hierarchy to use pertinent material
balances, is not rationally related to actual emissions. The commenter
questioned how a pertinent material balance would account for thermal
NOX emissions, that is NOX that is formed in
combustion processes because our air is 78% nitrogen, regardless of the
composition of the fuel. The commenter stated that thermal NOx
formation is greatly influenced by temperature in combustion processes
but (d)(4)(D) does not require any parametric monitoring, much less
restrictions, on operating temperature.
Response: EPA disagrees that a source would be required to use
material balances to calculate thermal NOX formation.
Sections 33a(d)(4)(E) and 33b(d)(4)(E) require that if pertinent
material balance data is not available, for example, to calculate
thermal NOX emissions, and other preferential methods in the
hierarchy were not available, sources should use the data or emissions
estimation technique from the following EPA publications that results
in the highest rate of emissions: (i) Compilation of Air Pollutant
Emission Factors (AP-42), (ii) AIRS Facility Subsystem Emission
Factors, or (iii) The Emission Inventory Improvement Program (EIIP). In
addition, emissions can be calculated for a premise using a combination
of methods in the hierarchy depending on the operations. That is
because the hierarchy does not require the exclusive use of one method
for calculating emissions if data in the hierarchy is available for
certain operations and not for others. Material balances, combined with
the buffer below the major source thresholds, ensures that sufficient
data is being collected to ensure that sources stay below the major
source thresholds. In light of the overall regulatory scheme, the PTE
limits in Connecticut's regulations are not rendered practicably
unenforceable by the allowance, under certain circumstances, of the use
of material balances to calculate emissions.
Comment 5e: The commenter is concerned that 33a(d)(4)(E) and
33b(d)(4)(E) are not rationally related to actual emissions. The
commenter points to the introduction section of AP-42, Compilation of
Air Pollutant Emission Factors which provides ``Average
[[Page 13943]]
emissions differ significantly from source to source and, therefore,
emission factors frequently may not provide adequate estimates of the
average emissions for a specific source. The extent of between-source
variability that exists, even among similar individual sources, can be
large depending on process, control system, and pollutant. Although the
causes of this variability are considered in emission factor
development, this type of information is seldom included in emission
test reports used to develop AP-42 factors.'' As a result, some
emission factors are derived from tests that may vary by an order of
magnitude or more. The commenter states that EPA's position has been
that AP-42 should not be used for ensuring compliance with synthetic
minor limits. The commenter states that AP-42 clearly states that it is
used for ``estimating emissions'' but a synthetic minor limit is not an
estimate. The commenter states that actual and potential to emit
emissions have to be below the applicable threshold, and that actual
emissions and an estimate of emissions are two separate things. The
commenter is also concerned that AP-42 emission factors come with
ratings. A ``D'' rating is below average and an ``E'' rating is Poor.
The commenter states that Section (d)(4)(E) allows the use of even
emission factors which EPA itself describes as ``Poor'', and that it is
arbitrary for EPA to allow the use of ``Poor'' ``estimates'' to provide
actual emissions.
Response: Sections 33a(d)(4)(E) and 33b(d)(4)(E) require that if
other preferential methods in the hierarchy are not available, sources
should use the data or emissions estimation technique from the
following EPA publications that results in the highest rate of
emissions: (i) Compilation of Air Pollutant Emission Factors (AP-42),
(ii) AIRS Facility Subsystem Emission Factors, or (iii) The Emission
Inventory Improvement Program (EIIP). In calculating emissions using
emission factors when other data are not available, Connecticut
conservatively requires the highest rate of emissions from these
publications to be used. The calculation of emissions and assurance of
compliance with the limits is not reliant on this alone but also on
parametric monitoring, which is explicitly required by RCSA 22a-174-
33b. Should parametric monitoring indicate that operations are outside
of the ranges occurring during the most recent test, or for any other
reason, Connecticut has the authority to mandate emissions testing to
assure compliance with applicable limits under RCSA 22a-174-5(e)(2). As
noted above, emissions can be calculated for a premise using a
combination of methods in the hierarchy depending on the operations,
because the hierarchy does not require the exclusive use of one method
if data in the hierarchy is available for certain operations and not
for others.
EPA acknowledges that in the AP-42 Introduction document we state
that use of these factors as source-specific permit limits and/or as
emission regulation compliance determinations is not recommended by
EPA. However, we also state that emission factors are frequently the
best or only method available for estimating emissions, despite their
limitations. And we further provide that if representative source-
specific data cannot be obtained, emissions information from equipment
vendors, particularly emission performance guarantees or actual test
data from similar equipment, is a better source of information for
permitting decisions than an AP-42 emission factor. When such
information is not available, use of AP-42 emission factors may be
necessary as a last resort. Sources that reach this level of the data
hierarchy in Connecticut's rules would typically be the smallest
sources of emissions and it would be unreasonably costly to require
such small sources to install a CEMS or conduct a stack test to
calculate emissions for purposes of demonstrating emissions remain
below the major source thresholds.\5\
---------------------------------------------------------------------------
\5\ See AP-42, Introduction at 3. ``Where the risks of using a
poor estimate are low, and the costs of more extensive methods are
unattractive, then less expensive estimation methods such as
emission factors and emission models may be both satisfactory and
appropriate.''
---------------------------------------------------------------------------
In addition, Connecticut's rule is written to provide a sufficient
buffer below the major source threshold by setting the premises wide
limit in Connecticut's 33a to below 50% of the major source threshold,
or alternatively, setting the premises wide limit in Connecticut's 33b
to below 80% of the major source threshold for certain source
categories with additional required monitoring and recordkeeping. In
light of all the material provisions of Connecticut's regulatory scheme
including the buffer below the major source thresholds, the possibility
of the use of AP-42 emissions factors when other data in the hierarchy
are not available does not render the PTE limits practicably
unenforceable.
III. Final Action
EPA is approving Connecticut's RCSA section 22a-174-33a, Limit on
Premises-wide Actual Emissions Below 50% of Title V Thresholds,
effective September 24, 2020, and RCSA section 22a-174-33b, Limit on
Premises-wide Actual Emissions Below 80% of Title V Thresholds,
effective September 24, 2020 (excluding the following provision: RCSA
22a-174-33b(d)(6)) as a revision to the Connecticut SIP with respect to
criteria pollutants and is separately approving the regulations under
section 112(l) of the Act with respect to HAPs. EPA is approving
Connecticut's request in accordance with the requirements of sections
110 and 112 of the CAA.
IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the
Connecticut Regulations described in the amendments to 40 CFR part 52
set forth below. The EPA has made, and will continue to make, these
documents generally available through https://www.regulations.gov and
at the EPA Region 1 Office (please contact the person identified in the
FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely
[[Page 13944]]
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation
land or in any other area where EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 action 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).
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 May 10, 2022. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: March 4, 2022.
David Cash,
Regional Administrator, EPA Region 1.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart H--Connecticut
0
2. Section 52.370 is amended by adding paragraph (c)(127) to read as
follows:
Sec. 52.370 Identification of plan.
* * * * *
(c) * * *
(127) Revisions to the State Implementation Plan submitted by the
Connecticut Department of Energy and Environmental Protection on
October 26, 2020, supplemented on January 12, 2022.
(i) Incorporation by reference. (A) Regulations of Connecticut
State Agencies section 22a-174-33a, Limit on Premises-wide Actual
Emissions Below 50% of Title V Thresholds, effective September 24,
2002.
(B) Regulations of Connecticut State Agencies section 22a-174-33b,
Limit on Premises-wide Actual Emissions Below 80% of Title V
Thresholds, effective September 24, 2020, excluding section (d)(6).
(ii) Additional materials. (A) Letter from the Connecticut
Department of Energy and Environmental Protection dated October 26,
2020, submitting a revision to the Connecticut State Implementation
Plan.
(B) Letter from the Connecticut Department of Energy and
Environmental Protection dated January 12, 2022, withdrawing
Regulations of Connecticut State Agencies section 22a-174-33b(d)(6)
from its SIP submittal.
0
3. Section 52.385 is amended in Table 52.385 by adding state citations
for 22a-174-33a and 22a-174-33b in alphanumerical order to read as
follows:
Sec. 52.385 EPA-approved Connecticut regulations.
* * * * *
Table 52.385--EPA-Approved Regulations
----------------------------------------------------------------------------------------------------------------
Dates
--------------------------
Connecticut State Title/subject Date Date Federal Register Section Comments/
citation adopted by approved by citation 52.370 description
State EPA
----------------------------------------------------------------------------------------------------------------
* * * * * * *
22a-174-33a......... Limit on 9/24/2020 3/11/2022 [Insert Federal (c)127 ................
Premises-wide Register
Actual citation].
Emissions Below
50% of Title V
Thresholds.
22a-174-33b......... Limit on 9/24/2020 3/11/2022 [Insert Federal (c)127 Approved with
Premises-wide Register the exception
Actual citation]. of section
Emissions Below (d)(6) which
80% of Title V Connecticut
Thresholds. withdrew from
its SIP
submittal.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 13945]]
[FR Doc. 2022-05042 Filed 3-10-22; 8:45 am]
BILLING CODE 6560-50-P