[Federal Register Volume 62, Number 56 (Monday, March 24, 1997)]
[Rules and Regulations]
[Pages 13830-13833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7349]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5702-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating 
Permits Program submitted by the State of Connecticut for the purpose 
of complying with Federal requirements for an approvable State program 
to issue operating permits to all major stationary sources, and to 
certain other sources.

EFFECTIVE DATE: April 23, 1997.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the final interim approval are available 
for inspection during normal business hours at the following location: 
Office of Ecosystem Protection, U.S. Environmental Protection Agency, 
Region I, One Congress Street, 11th floor, Boston, MA.

FOR FURTHER INFORMATION CONTACT: Donald Dahl, CAP, U.S. Environmental 
Protection Agency, Region 1, JFK Federal Building, Boston, MA 02203-
2211, (617) 565-4298.

SUPPLEMENTARY INFORMATION:

I. Background

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the Act'')), and implementing regulations at 40 
Code of Federal Regulations (CFR) part 70 require that States develop 
and submit operating permits programs to EPA by November 15, 1993, and 
that EPA act to approve or disapprove each program within 1 year after 
receiving the submittal. The EPA's program review occurs pursuant to 
section 502 of the Act and the Part 70 regulations, which together 
outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval. If EPA has not fully approved a 
program by the end of an interim program, it must establish and 
implement a Federal program.
    On December 6, 1996, EPA proposed interim approval of the operating 
permits program for the State of Connecticut. See 61 FR 64651. The EPA 
received comments from the Society of the Plastics Industry, Inc. on 
the proposal. In this document, EPA is taking final action to 
promulgate interim approval of the operating permits program for the 
State of Connecticut.

II. Response to Comments

    The comments received on EPA's December 6, 1996 proposal to grant 
interim approval to the Connecticut Program and EPA's response to those 
comments are as follows:
    Comment No. 1: Permit fees for the Connecticut program should be no 
higher than the amount specified by the Clean Air Act.
    Response: The amount in the Act of $25 per ton of emissions on an 
annual basis, adjusted by the consumer price index, was never intended 
to be the ceiling on the money a State could collect to operate a title 
V program. Instead, the Act is clear that a State is required to charge 
sufficient fees to cover the costs of implementing a title V program. 
Connecticut has analyzed its needs to fully implement a title V program 
and has concluded that it would need 3.6 million dollars per year. EPA 
has determined that this amount meets the requirements of 40 CFR 70.9 
regarding the permit fees and disagrees that the State may be 
collecting excess fees. More importantly, EPA has no authority to 
require Connecticut to limit its fees to the $25 per ton of emissions.
    Comment No. 2: Commenter disagreed with EPA's position to require 
Connecticut to amend its rule in order to allow EPA to object to a 
permit at any time after receiving a citizen's petition that requests 
EPA to veto a permit.
    Response: In interim approval condition No. 4, EPA is requiring 
Connecticut to remove the 45 day limit the State regulations attempt to 
impose on EPA's ability to object to a permit following receipt of a 
citizen petition. Section 505(b)(2) of the Act imposes a 60 day 
deadline on EPA to act on a citizen petition, but it does not disable 
EPA from objecting to a permit or moving to reopen the permit if EPA 
should miss the 60 day deadline when responding to a meritorious 
citizen petition. Section 505(e) of the Act and 40 CFR 70.7(g) make it 
clear that EPA can initiate the process to modify or revoke and reissue 
a permit at any time if the permit is inconsistent with the applicable 
requirements of the Act. Therefore, Connecticut has no authority to 
impose a 45 day limit on EPA's opportunity to respond to a citizen 
petition.
    Comment No. 3: Connecticut should be allowed to extend the permit 
shield to Administrative Amendments, especially because administrative 
amendments have no environmental impact.
    Response: Part 70 limits a permit shield to only those permit 
modifications that receive full EPA, affected states, and public 
review. Connecticut's administrative amendments do not receive any EPA, 
affected state, or public review. Therefore, EPA disagrees with the 
commenter and still requires Connecticut to remove the permit shield 
from administrative amendments.
    While it is true that properly executed administrative amendments 
should have no environmental impact, this is not a justification for 
extending the permit shield to such changes. Indeed, the shield is 
probably irrelevant to the vast majority of administrative amendments 
because, by definition, they will not effect how the facility 
demonstrates compliance with the Act (except perhaps to enhance the 
compliance demonstration through more frequent reporting). Moreover, if 
a permit change that does effect compliance terms in the permit is 
mistakenly made using an administrative amendment, Connecticut's rule 
should not create the risk that this change will shield a facility from 
direct enforcement of the Act.
    Comment No. 4: Title V should only apply to major sources and 
Connecticut should remove its requirement that non-major sources obtain 
a title V permit within five years of the implementation date.
    Response: At this time, EPA has deferred its decision on whether 
non-major sources will have to obtain title V permits. 40 CFR 70.3(b) 
allows

[[Page 13831]]

Connecticut the discretion of either following EPA's deferral or 
requiring that non-major sources obtain a title V permit. So if 
Connecticut does choose to require non-major sources to obtain a title 
V permit, EPA would have no basis for objecting to a state program that 
is more comprehensive than required by federal law.
    The commenter appears to have misunderstood EPA's interim approval 
condition on this point. The issue with Connecticut's rule is not that 
the State requires minor sources to obtain a title V permit, rather it 
is the failure of Connecticut's rule to require that non-major sources 
come into the program when EPA determines that non-majors must get 
title V permits. The State defers minor sources for five years from the 
effective date of Connecticut's rule unless the Commissioner notifies a 
source of an earlier date. The State's rule is not consistent with 40 
CFR 70.3(b) because it does not require the State to issue title V 
permits to non-major sources if the Administrator decides to include 
non-major sources in the title V program; instead the rule leaves it to 
the discretion of the Commissioner to bring non-majors into the program 
prior to expiration of the five year deferral. Connecticut must amend 
its rule to be consistent with part 70.
    Comment No. 5: Connecticut should streamline its permit 
modification procedures.
    Response: EPA agrees with the commenter that Connecticut's program 
needs a streamlined permit modification process and has stated as much 
in 61 FR 64651, Proposed Action, section II.B.25. The commenter 
suggests Connecticut should use the process outlined in EPA's August 
31, 1995 proposed changes to part 70. Connecticut should base any new 
permit modification procedures on final EPA regulations, not a 
proposal.

III. Final Action

    The EPA is promulgating interim approval of the operating permits 
program submitted by the State of Connecticut on September 28, 1995. 
The State must make the changes specified in the proposed rulemaking, 
under II.B., Proposed Action, in order to be granted full approval. See 
61 FR 64651-64658 (December 6, 1996) for a complete discussion of those 
conditions. In brief, the State must: (1) Require sources to explain 
exemptions from applicable rules. (2) Require applicants to state they 
will comply with future requirements that become effective during the 
permit term. (3) Require that compliance schedules must be as least as 
stringent as any judicial consent decree or administrative order. (4) 
Remove time limitation on the Administrator responding to a citizen 
petition. (5) Insert a permit condition requiring that permit fees be 
paid on an annual basis. (6) Require a source to submit additional or 
corrected information whenever that source becomes aware that the 
original application was either incorrect or incomplete. (7) Make 
available a statement of legal and factual basis for each permit and 
insert in the permit the origin and authority for permit terms. (8) 
Clarify reporting requirements for permit deviations and affirmative 
defense. (9) Change the definition of ``technology-based emission 
limitations'' to be consistent with part 70. (10) Adequately address 
``Section 502(b)(10) changes.'' (11) Clarify that EPA does not derive 
its hearing authority from State law. (12) Complete all elements of the 
definition for ``applicable requirements.'' (13) Clarify that all 
emission units have to be addressed in a title V permit. (14) Remove 
the permit shield from administrative amendments. (15) Allow EPA 45 
days to review a tentative determination no matter when the State makes 
changes to a tentative determination. (16) Delete the ``cut-off'' date 
in the definition for ``Code of Federal Regulations.'' (17) Include all 
elements in the definition for ``regulated air pollutants.'' (18) Adopt 
regulations that implement section 112(g) of the Act. (19) Allow a 
permit to continue in effect if a complete renewal application had been 
filed. (20) Require non-major sources to obtain a title V permit if 
required by the Administrator. (21) Require that an applicant cannot 
omit any information needed to determine the applicability of, or to 
impose, any applicable requirement. (22) Clarify that EPA derives its 
reopening authority from the Act, not from State regulations. (23) 
State that a source that fails to comply with a general permit is 
operating without a title V permit. (24) Require minor new source 
review actions to be processed in a manner at least equivalent to 40 
CFR 70.7(e)(2). (25) Provide adequate, streamlined, and reasonable 
procedures for expeditiously processing permit modifications. (26) 
Align the time frames between the due date for renewal applications and 
when the State can process those applications to ensure that the 
applications are acted upon prior to the permit expiring. (27) Clarify 
who is the responsible party when a source's ownership is transferred. 
(28) Require all permits to address periodic monitoring. (29) Revise 
the definition of responsible official to be consistent with part 70.
    The scope of the State of Connecticut's part 70 program approved in 
this document applies to all part 70 sources (as defined in the 
approved program) within the State of Connecticut, except any sources 
of air pollution over which an Indian Tribe has jurisdiction. See, 
e.g., 59 FR 55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' 
is defined under the Act as ``any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village, 
which is Federally recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians.'' See section 302(r) of the CAA; see also 59 FR 
43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
    This interim approval extends until April 26, 1999. During this 
interim approval period, the State of Connecticut is protected from 
sanctions, and EPA is not obligated to promulgate, administer and 
enforce a Federal operating permits program in the State of 
Connecticut. Permits issued under a program with interim approval have 
full standing with respect to part 70, and the 1-year time period for 
submittal of permit applications by subject sources begins upon the 
effective date of this interim approval, as does the 3-year time period 
for processing the initial permit applications.
    If the State of Connecticut fails to submit a complete corrective 
program for full approval by October 26, 1998 EPA will start an 18-
month clock for mandatory sanctions. If the State of Connecticut then 
fails to submit a corrective program that EPA finds complete before the 
expiration of that 18-month period, EPA will be required to apply one 
of the sanctions in section 179(b) of the Act, which will remain in 
effect until EPA determines that the State of Connecticut has corrected 
the deficiency by submitting a complete corrective program. If, six 
months after application of the first sanction, the State of 
Connecticut still has not submitted a corrective program that EPA has 
found complete, a second sanction will be required.
    If EPA disapproves the State of Connecticut's complete corrective 
program, EPA will be required to apply one of the section 179(b) 
sanctions on the date 18 months after the effective date of the 
disapproval, unless prior to that date the State of Connecticut has 
submitted a revised program and EPA has determined that it corrected 
the deficiencies that prompted the disapproval. If, six months after 
EPA

[[Page 13832]]

applies the first sanction, the State of Connecticut has not submitted 
a revised program that EPA has determined corrects the deficiencies, a 
second sanction is required.
    In addition, discretionary sanctions may be applied where warranted 
any time after the expiration of an interim approval period if the 
State of Connecticut has not timely submitted a complete corrective 
program or EPA has disapproved its submitted corrective program. 
Moreover, if EPA has not granted full approval to the State of 
Connecticut program by the expiration of this interim approval, since 
the expiration would occur after November 15, 1995, EPA would be 
required to promulgate, administer and enforce a Federal permits 
program for the State of Connecticut upon interim approval expiration.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 standards as promulgated by EPA as they apply to part 70 
sources. Section 112(l)(5) requires that the State's program contain 
adequate authorities, adequate resources for implementation, and an 
expeditious compliance schedule, which are also requirements under Part 
70. However, at this time Connecticut does not have the authority to 
include most of the section 112 standards in title V permits or in 
state-only permits, including sections 112 (g) and (j). The lack of 
authority is due to the effect the definition of ``code of federal 
regulations'' has on the definition of ``applicable requirements.'' 
Given the State's current rule, Connecticut is unable to write any 
permit conditions that incorporate section 112 standards promulgated 
after September 16, 1994. See 61 FR 64651, Proposed Action, section 
II.B.16 (December 6, 1996), for further detail. Therefore, EPA is not 
promulgating approval of the State's program under section 112(l)(5) 
and 40 CFR 63.91 for receiving delegation of section 112 standards at 
this time.
    In addition, Connecticut's current new source review (NSR) program 
is unable to fully address section 112(g) requirements. One of the main 
reasons for the State's lack of authority is due to the requirement 
that a NSR permit is only needed for new or modified sources that have 
a net emission increase of a single pollutant greater than 15 tons per 
year. Section 112(g) can be triggered for new sources that emit 10 tons 
per year of a single hazardous air pollutant or 25 tons per year of 
total hazardous air pollutants.

IV. Administrative Requirements

A. Docket

    Copies of the State's submittal and other information relied upon 
for the final interim approval, including comments received by the 
State of Connecticut and reviewed by EPA on the proposal, are contained 
in the docket maintained at the EPA Regional Office. The docket is an 
organized and complete file of all the information submitted to, or 
otherwise considered by, EPA in the development of this final interim 
approval. The docket is available for public inspection at the location 
listed under the ADDRESSES section of this document.

B. Petitions for Judicial Review

    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 23, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

C. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
conduct a regulatory flexibility analyses of any rule subject to notice 
and comment rulemaking requirements unless the Agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. The EPA's actions under section 502 of the 
Act do not create any new requirements, but simply address operating 
permits programs submitted to satisfy the requirements of 40 CFR part 
70. Because this action does not impose any new requirements. I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

E. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action. Additionally, it will not cost $100 million to operate or 
comply with this program.

F. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 70

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

    Dated: February 20, 1997.
John P. DeVillars,
Regional Administrator, Region I.

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

PART 70--[AMENDED]

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

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

    2. Appendix A to Part 70 is amended by adding the entry for 
Connecticut in alphabetical order to read as follows:

[[Page 13833]]

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

Connecticut

    (a) Department of Environmental Protection: submitted on 
September 28, 1995; interim approval effective on April 23, 1997; 
interim approval expires April 26, 1999.
    (b) [Reserved]
* * * * *
[FR Doc. 97-7349 Filed 3-21-97; 8:45 am]
BILLING CODE 6560-50-P