13936 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 

‘‘Guidance on Passive Foreign 

Investment Companies’’ is corrected to 

read ‘‘Guidance Under Section 958 on 

Determining Stock Ownership’’. 

Oluwafunmilayo A. Taylor, 

Chief, Legal Processing Division, Associate 

Chief Counsel, (Procedure and 

Administration). 

[FR Doc. 2022–05177 Filed 3–10–22; 8:45 am] 

BILLING CODE 4830–01–P 

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. 

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 lancey.susan@epa.gov. 

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– 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 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 SIPapproved 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 


lotter on DSK11XQN23PROD with RULES1
13938 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 

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 highaltitude 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 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 13939 

1The 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. 

2PSD 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). 

3The PAL regulations were upheld by the Court 

in New York v. EPA, 413 F.3d 3, 22 (D.C. Cir. 2005). 

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

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 


lotter on DSK11XQN23PROD with RULES1
13940 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 

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 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 13941 

4EPA 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. 

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 fiveyear 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 onsite 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

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 


lotter on DSK11XQN23PROD with RULES1
13942 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 

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 highaltitude 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 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 13943 

5See 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.’’ 

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 sourcespecific 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

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 


lotter on DSK11XQN23PROD with RULES1
13944 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 

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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart H—Connecticut 

■ 2. Section 52.370 is amended by 

adding paragraph (c)(127) to read as 

follows: 

§ 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. 

■ 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: 

§ 52.385 EPA-approved Connecticut 

regulations. 

* * * * * 

TABLE 52.385—EPA-APPROVED REGULATIONS

Connecticut 

State citation Title/subject 

Dates 

Federal Register 

citation 

Section 

52.370 Date Comments/description 

adopted by 

State 

Date 

approved by 

EPA 

*******

22a–174–33a .... Limit on Premises-wide Actual Emissions Below 50% of Title V 

Thresholds.

9/24/2020 3/11/2022 [Insert Federal Register 

citation].

(c)127 

22a–174–33b .... Limit on Premises-wide Actual Emissions Below 80% of Title V 

Thresholds.

9/24/2020 3/11/2022 [Insert Federal Register 

citation].

(c)127 Approved with the exception of section (d)(6) which Connecticut withdrew from its SIP submittal. 

*******


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Rules and Regulations 13945 

[FR Doc. 2022–05042 Filed 3–10–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2021–0642; FRL–9536–01– 

OCSPP] 

Calcium Sulfate; Exemption From the 

Requirement of a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of calcium sulfate 

when used as an inert ingredient in 

antimicrobial formulations applied to 

food-contact surfaces in public eating 

places, dairy-processing equipment, and 

food-processing equipment and utensils, 

limited to 100 parts per million (ppm) 

in the final formulation. Exponent, Inc. 

on behalf of Tygrus, LLC, submitted a 

petition to EPA under the Federal Food, 

Drug, and Cosmetic Act (FFDCA), 

requesting establishment of an 

exemption from the requirement of a 

tolerance. This regulation eliminates the 

need to establish a maximum 

permissible level for residues of calcium 

sulfate when used in accordance with 

this exemption. 

DATES: This regulation is effective 

March 11, 2022. Objections and requests 

for hearings must be received on or 

before May 10, 2022, and must be filed 

in accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2021–0642, is 

available at https://www.regulations.gov 

or at the Office of Pesticide Programs 

Regulatory Public Docket (OPP Docket) 

in the Environmental Protection Agency 

Docket Center (EPA/DC), West William 

Jefferson Clinton Bldg., Rm. 3334, 1301 

Constitution Ave. NW, Washington, DC 

20460–0001. The Public Reading Room 

is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the OPP 

Docket is (703) 305–5805. 

Due to the public health concerns 

related to COVID–19, the EPA Docket 

Center (EPA/DC) and Reading Room is 

open to visitors by appointment only. 

For the latest status information on 

EPA/DC services and access, visit 

https://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Marietta Echeverria, Registration 

Division (7505P), Office of Pesticide 

Programs, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW, 

Washington, DC 20460–0001; main 

telephone number: (703) 305–7090; 

email address: RDFRNotices@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. The following 

list of North American Industrial 

Classification System (NAICS) codes is 

not intended to be exhaustive, but rather 

provides a guide to help readers 

determine whether this document 

applies to them. Potentially affected 

entities may include: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of 40 CFR part 180 

through the Office of the Federal 

Register’s e-CFR site at https://

www.ecfr.gov/current/title-40. 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a(g), any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 

or request a hearing on this regulation 

in accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ– 

OPP–2021–0642 in the subject line on 

the first page of your submission. All 

objections and requests for a hearing 

must be in writing and must be received 

by the Hearing Clerk on or before May 

10, 2022. Addresses for mail and hand 

delivery of objections and hearing 

requests are provided in 40 CFR 

178.25(b). 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing (excluding 

any Confidential Business Information 

(CBI)) for inclusion in the public docket. 

Information not marked confidential 

pursuant to 40 CFR part 2 may be 

disclosed publicly by EPA without prior 

notice. Submit the non-CBI copy of your 

objection or hearing request, identified 

by docket ID number EPA–HQ–OPP– 

2021–0642, by one of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

online instructions for submitting 

comments. Do not submit electronically 

any information you consider to be CBI 

or other information whose disclosure is 

restricted by statute. 

• Mail: OPP Docket, Environmental 

Protection Agency Docket Center (EPA/ 

DC), (28221T), 1200 Pennsylvania Ave. 

NW, Washington, DC 20460–0001. 

• Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at https://

www.epa.gov/dockets/contacts.html. 

Additional instructions on 

commenting or visiting the docket, 

along with more information about 

dockets generally, is available at https:// 

www.epa.gov/dockets. 

II. Petition for Exemption 

In the Federal Register of November 

23, 2021 (86 FR 66512) (FRL–8792–05), 

EPA issued a document pursuant to 

FFDCA section 408, 21 U.S.C. 346a, 

announcing the filing of a pesticide 

petition (PP IN–11565) by Exponent, 

Inc., 1150 Connecticut Ave. NW, Suite 

1100, Washington, DC 20036 on behalf 

of Tygrus, LLC, 1132 E. Big Beaver 

Road, Troy, MI 48083. The petition 

requested that 40 CFR 180.940(a) be 

amended by establishing an exemption 

from the requirement of a tolerance for 

residues of calcium sulfate when used 

as an inert ingredient in antimicrobial 

formulations applied to food-contact 

surfaces in public eating places, dairyprocessing equipment, and foodprocessing equipment and utensils, 

limited to 100 parts per million (ppm) 

in the final formulation. That document 

referenced a summary of the petition 

prepared by Exponent, Inc. on behalf of 

Tygrus, LLC, the petitioner, which is 

available in the docket, https://

www.regulations.gov. There were no 

comments received in response to the 

notice of filing. 

III. Inert Ingredient Definition 

Inert ingredients are all ingredients 

that are not active ingredients as defined 

in 40 CFR 153.125 and include, but are 

not limited to, the following types of 

ingredients (except when they have a 

pesticidal efficacy of their own): 

Solvents such as alcohols and 

hydrocarbons; surfactants such as 


lotter on DSK11XQN23PROD with RULES1