Clean Air Act Interim Approval of Operating Permits Program; Delegation of Sections 111 and 112 Standards; State of Connecticut

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5657-3]

Clean Air Act Interim Approval of Operating Permits Program;

Delegation of Sections 111 and 112 Standards; State of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes interim approval of the Operating Permits

Program submitted by 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.

EPA is also approving Connecticut's authority to implement hazardous

air pollutant requirements.

DATES: Comments on this proposed action must be received in writing by

January 6, 1997.

ADDRESSES: Comments should be addressed to Donald Dahl, Air Permits,

CAP, U.S. Environmental Protection Agency, Region I, JFK Federal

Building, Boston, MA 02203-2211. Copies of the State's submittal and

other supporting information used in developing the proposed interim

approval are available for inspection during normal business hours at

the following location: U.S. Environmental Protection Agency, Region 1,

One Congress Street, 11th floor, Boston, MA 02203-2211.

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 and Purpose

A. Introduction

As required under title V of the 1990 Clean Air Act Amendments

(sections 501-507 of the Clean Air Act (``the Act'')), EPA has

promulgated rules which define the minimum elements of an approvable

State operating permits program and the corresponding standards and

procedures by which the EPA will approve, oversee, and withdraw

approval of State operating permits programs (see 57 FR 32250 (July 21,

1992)). These rules are codified at 40 Code of Federal Regulations

(CFR) Part 70. Title V requires States to develop, and submit to EPA,

programs for issuing these operating permits to all major stationary

sources and to certain other sources.

The Act requires that States develop and submit these 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 for

a period of up to 2 years. If EPA has not fully approved a program by

the end of an interim program, it must establish and implement a

Federal program.

B. Federal Oversight

When EPA promulgates this interim approval, it will extend for two

years following the effective date. During the interim approval period,

the State of Connecticut is protected from sanctions, and EPA is not

obligated to promulgate, administer and enforce a Federal permits

program for the State of Connecticut. Permits issued under a program

with interim approval have full standing with respect to Part 70, and

the State will permit sources based on the transition schedule

submitted with the approval request.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials

The Governor of the State of Connecticut submitted an

administratively complete title V Operating Permits Program (PROGRAM)

on September 28, 1995. EPA deemed the PROGRAM administratively complete

in a letter to the Governor dated November 22, 1995. The PROGRAM

submittal includes a legal opinion from the Attorney General of

Connecticut stating that the laws of the State provide adequate

authority to carry out the PROGRAM, and a description of how the State

intends to implement the PROGRAM.

2. Regulations and Program Implementation

The State of Connecticut has submitted Section 22a-174-33 of the

Department of Environmental Protection Regulations, implementing the

State Part 70 program as required by 40 CFR Sec. 70.4(b)(2). Sufficient

evidence of procedurally correct adoption is included in the PROGRAM.

The following requirements, set out in EPA's Part 70 operating

permits program review are addressed in Section IV of the State's

submittal.

The Connecticut PROGRAM, including the operating permit

regulations, substantially meet the requirements of 40 CFR Part 70,

including Secs. 70.2 and 70.3 with respect to applicability;

Secs. 70.4, 70.5 and 70.6 with respect to permit content and

operational flexibility; Sec. 70.5 with respect to permit applications

and criteria which define insignificant activities; Secs. 70.7 and 70.8

with respect to public participation and permit review by affected

States; and Sec. 70.11 with respect to requirements for enforcement

authority. Although the regulations substantially meet Part 70

requirements, there are program deficiencies that are outlined in

section II.B. below as Interim Approval issues. Those Interim Approval

issues are more fully discussed in the Technical Support Document

(``TSD''). The ``Issues'' section of the TSD also contains a detailed

discussion of elements of Part 70 that are not identical to, or

explicitly contained in, Connecticut's regulation, but which are

satisfied by other elements of Connecticut's program submittal and/or

other Connecticut State law.

Connecticut has made several important commitments that effect how

the program will be implemented during the interim approval period. The

EPA is relying on these commitments to insure that Connecticut operates

an acceptable operating permits program during the period. These

commitments include an effort by the state to expedite certain rule

changes that address critical components of its implementing

regulation, including:

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1. Removing the permit shield for administrative amendments:

Connecticut's program now gives DEP the discretion to grant a permit

shield to permit changes that have not undergone review consistent

with the requirements for a significant permit modification, the

only type of permit modification that qualifies for a shield under

Part 70. Compare 40 CFR 70.6(f)(1), 70.7(d)(4), (e)(2)(vi), and

(e)(4). DEP has committed to not grant a permit shield to any

administrative amendment that has not undergone review consistent

with the requirements for a significant permit modification prior to

the change in its program regulation.

2. Removal of cutoff date for applicable requirements:

Connecticut's program incorporates a definition of the Code of

Federal Regulations that has the effect of limiting DEP's authority

to impose applicable Clean Air Act requirements to only those

promulgated as of September 16, 1994. Therefore, DEP does not have

the authority to include all applicable requirements in operating

permits, as required under 40 CFR 70.6(a)(1). DEP has committed to

time the initial issuance of permits such that only those facilities

not affected by standards promulgated after September 16, 1994 will

be permitted prior to the change in the program regulation.

3. EPA opportunity for review: Connecticut's program gives EPA a

45 day opportunity to review a proposed permit, but does not require

DEP to resubmit the permit to EPA if DEP makes a change following

EPA's initial review period. DEP has committed to submit any such

permit to EPA during the interim program and prior to the change in

the program regulation.

A copy of these commitments is available for review in the docket

supporting this proposal. For a further discussion of these program

elements, see the interim approval conditions 14, 15, and 16 listed in

the proposed action section of this document.

The Connecticut Department of Environmental Protection (CT DEP)

defines research and development (R&D) in a manner which allows DEP to

exclude research and development operations from a source when

determining if the source is major. See Section 22a-174-33(c)(4). EPA

has recently announced an interpretation of its Part 70 regulation

which would allow most R&D facilities to be considered separately from

the source, and has proposed rule changes to Part 70 to clarify the

Agency's intent. See 60 FR 45556-58 (Aug. 31, 1995). This

interpretation of EPA's rule is generally consistent with Connecticut's

separation of R&D activities from the source under Section 22a-174-

33(c)(4) of Connecticut's regulations.

The complete program submittal and the TSD dated November 15, 1996

entitled ``Technical Support Document--Connecticut Operating Permits

Program'' are available in the docket for review. The TSD includes a

detailed analysis, including a program checklist, of how the State's

program and regulations compare with EPA's requirements and

regulations.

3. Permit Fee Demonstration

Section 502(b)(3) of the Act requires that each permitting

authority collect fees sufficient to cover all reasonable direct and

indirect costs required to develop and administer its title V operating

permit program. Each title V program submittal must contain either a

detailed demonstration of fee adequacy or a demonstration that the fees

collected exceed $25 per ton of actual emissions per year, adjusted

from the August, 1989 consumer price index. The $25 per ton was

presumed by Congress to cover all reasonable direct and indirect costs

to an operating permit program. This minimum amount is referred to as

the ``presumptive minimum.''

Connecticut has opted to make a presumptive minimum fee

demonstration. Connecticut has demonstrated that actual emissions from

their title V sources was 74,000 tons for 1994. Connecticut assessed

3.6 million dollars in fees from their title V sources for 1996. These

fees equate to $48.64/ton of emissions which is more than the

presumptive minimum of 31.78/ton of emissions. Therefore, Connecticut

has demonstrated that the State will collect sufficient permit fees to

meet EPA's presumptive minimum criteria. For more information, see

Attachment E of Connecticut's title V program documentation.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority and/or commitments for section 112 implementation.

Connecticut demonstrated in its title V program submittal adequate

legal authority to implement and enforce section 112 requirements

through the title V permit up to September 16, 1994. This legal

authority is contained in Connecticut's enabling legislation,

regulatory provisions defining ``applicable requirements,'' and the

requirement that a title V permit must incorporate all applicable

requirements. After Connecticut addresses the interim approval issue

regarding the Code of Federal Regulations, EPA will evaluate

Connecticut's legal authority to issue permits that assure compliance

with all section 112 requirements and to carry out all section 112

activities promulgated before and after September 16, 1994. In

addition, Connecticut committed in its title V program submittal to

issue permits that assure compliance with all section 112 requirements,

and to carry out all section 112 activities. For further discussion of

this subject, please refer to the Technical Support Document,

referenced above, and the April 13, 1993 guidance memorandum titled

``Title V Program Approval Criteria for Section 112 Activities,''

signed by John Seitz, Director of the Office of Air Quality Planning

and Standards.

b. Implementation of 112(g) upon program approval. On February 14,

1995, EPA published an interpretive notice (see 60 FR 8333) that

postpones the effective date of section 112(g) until after EPA has

promulgated a rule addressing the requirements of that provision. The

section 112(g) interpretive notice explains that EPA is considering

whether to allow States time to adopt rules implementing the Federal

rule. Unless and until EPA provides for such an additional postponement

of the effective date of section 112(g), section 112(g) must be

implemented during the period between promulgation of the Federal

section 112(g) rule and adoption of implementing State regulations for

section 112(g) requirements. Since EPA has identified section 112(g) as

an interim approval issue, if the final 112(g) rule does not provide

for a transition period, then EPA will implement section 112(g) through

a Part 71 permits during the transition period.

Since the EPA implementation of 112(g) would be for the single

purpose of providing a mechanism to implement section 112(g) during the

transition period, EPA would not implement section 112(g) if the Agency

decides in the final section 112(g) rule that sources are not subject

to the requirements of the rule until State regulations are adopted.

Also, since EPA's implementation would be for the limited purpose of

allowing the State sufficient time to adopt regulations, EPA proposes

to limit the duration of the Agency's implementation to 18 months

following promulgation by EPA of its section 112(g) rule.

c. Program for straight delegation of sections 111 and 112

standards. The Part 70 requirements for approval of a State operating

permit program, specified in 40 CFR 70.4(b), encompass section

112(l)(5) requirements for approval of a program for delegation of the

hazardous air pollutant program General Provisions, Subpart A, of 40

C.F.R. Parts 61 and 63, promulgated under section 112 of the Act, and

MACT standards as promulgated by EPA as they apply to part 70 sources.

Section 112(l)(5) requires that a State's program

[[Page 64653]]

contain adequate legal authorities, adequate resources for

implementation, and an expeditious compliance schedule, which are also

requirements under Part 70. Therefore, EPA is also proposing to grant

approval under section 112(l)(5) and 40 C.F.R. 63.91 of Connecticut's

mechanism for receiving delegation of section 112 standards for Part 70

sources, that are unchanged from the Federal standards as promulgated

(straight delegation) promulgated prior to September 16, 1994. EPA is

also proposing the same delegation mechanism for receiving straight

delegation of section 112 standards and infrastructure programs

including those authorized under sections 112(j) and 112(r) for Part 70

sources promulgated after September 16, 1994, on the condition that

Connecticut addresses the interim approval condition regarding the

definition for ``Code of Federal Regulations'' to allow DEP to

implement section 112 standards promulgated after September 16, 1994.

EPA will only take final action on delegating section 112 standards

promulgated after September 16, 1994 once Connecticut makes the change

as described in interim approval condition 16 in the proposed actions.

In addition, EPA is reconfirming the delegation of 40 CFR part 60 and

61 standards currently delegated to Connecticut as indicated in Table

I.1

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\1\ Please note that federal rulemaking is not required for

delegation of section 111 standards.

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EPA is proposing to delegate all applicable future 40 CFR part 61

and 63 standards pursuant to the following mechanism unless otherwise

requested by Connecticut provided Connecticut corrects its authority to

accept standards after September 16, 1994.2 Connecticut will

accept any future delegation of section 111 and 112 standards by

letter. A list of newly applicable regulations will be sent by the EPA

Regional Office to Connecticut. If Connecticut accepts delegation, a

letter will be sent to EPA Region I. The details of this delegation

mechanism are set forth in Attachment A of Connecticut's Title V

submittal entitled ``Program Description with Transition Plan for the

State of Connecticut Title V Operating Permit Program'' and is further

clarified in a Memorandum of Understanding dated October 7, 1996. This

mechanism will apply to both existing and future standards but is

limited to Part 70 sources. In addition, Connecticut has indicated that

for some section 112 standards it may choose to submit a more stringent

State rule or program through section 112(l). EPA will need to take

public notice and comment for any section 112 delegation other than

straight delegation. The original delegation agreement between EPA and

Connecticut was set forth in a letter to Stanley J. Pac, Commissioner,

on September 30, 1982. All the documents referenced to in this

paragraph are available for review in the docket supporting this

proposal.

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\2\ The radionuclide National Emission Standards for Hazardous

Air Pollutant (NESHAP) is a section 112 regulation and therefore,

also an applicable requirement under the State operating permits

program for part 70 sources. There is not yet a Federal definition

of ``major source'' for radionuclide sources. Therefore, until a

major source definition for radionuclide is promulgated, no source

would be a major section 112 source solely due to its radionuclide

emissions. However, a radionuclide source may, in the interim, be a

major source under Part 70 for another reason, thus requiring a Part

70 permit. The EPA will work with the State in the development of

its radionuclide program to ensure that permits are issued in a

timely manner.

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d. Commitment to implement title IV of the Act. Connecticut has

committed to take action, following promulgation by EPA of regulations

implementing section 407 and 410 of the Act, or revisions to either

Parts 72, 74, or 76 or the regulations implementing section 407 or 410,

to either incorporate by reference or submit, for EPA approval,

regulations implementing these provisions.

B. Proposed Actions

The EPA is proposing to grant interim approval of the operating

permits program submitted to EPA by the State of Connecticut. This

interim approval extends for a period of up to 2 years. During the

interim approval period, the State is protected from sanctions for

failure to have a program, and EPA is not obligated to promulgate a

Federal permits program in the State. Permits issued under a program

with interim approval have full standing with respect to Part 70, and

the State will permit sources based on the transition schedule

submitted with the PROGRAM.

The scope of the State of Connecticut's Part 70 program that EPA is

approving in this notice would apply 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).

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. With the exceptions that Connecticut does not have the authority to

implement section 112(g) requirements or section 112 requirements that

were implemented through a standard which was promulgated after

September 16, 1994, Connecticut's program does contain such adequate

legal authorities and resources. Therefore, EPA is also proposing to

grant partial approval under section 112(l)(5) and 40 CFR 63.91 of

Connecticut's mechanism for receiving delegation of section 112

standards for Part 70 sources, that are unchanged from the Federal

standards as promulgated (straight delegation) and section 112

infrastructure programs such as those programs authorized under

sections 112(i)(5), 112(j), and 112(r), for those standards promulgated

as of September 16, 1994. EPA is also proposing to approve delegation

of all section 111 and 112 standards to Connecticut promulgated after

September 16, 1994, provided Connecticut revises its definition of Code

of Federal Regulations consistent with interim approval condition 16

listed below. In addition, EPA is reconfirming the delegation of 40 CFR

Part 60 and 61 standards currently delegated to Connecticut as

indicated in Table I.\3\

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\3\ Please note that federal rulemaking is not required for

delegation of section 111 standards.

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The EPA is proposing to grant interim approval to the operating

permits program submitted by Connecticut on September 28, 1995. The

State must make the following changes to its rules to receive full

approval:

1. Forty CFR 70.5(c)(6) requires a source to include in its

application an explanation of any proposed exemptions of otherwise

applicable requirements. Connecticut must amend its regulation to

require the applicant to explain any exemptions the source believes

applies to its facility.

2. Forty CFR 70.5(c)(8)(ii)(B) requires a statement in the

application that the source will comply with all future requirements

that become effective during the permit term. Subsection (i)(4)

[[Page 64654]]

of Connecticut's rule limits such a statement to applicable

requirements [with future effective dates] with which the subject

source is not in compliance at the time of application. Connecticut

must amend its rules to require an applicant to affirmatively state

that it will remain in compliance with a rule that it is in compliance

with, once the rule becomes effective.

3. Part 70 requires that a compliance schedule ``resemble and be at

least as stringent as that contained in any judicial consent decree or

administrative order to which the source is subject.'' Subsection

(i)(1) of Connecticut's rule limits the relevant administrative and

judicial orders to those involving violations that occurred not more

than 5 years prior to the application. Connecticut's rule also limits

relevant administrative orders to those involving a penalty of greater

than $5,000. Connecticut must amend its rule by removing the

limitations on the relevant administrative and judicial orders.

4. 40 CFR 70.8(d) addresses the right of the public to petition EPA

to object to a proposed permit if EPA has not already objected under 40

CFR 70.8(c). Connecticut's rule provides that the State will respond to

an EPA objection based on a petition only if EPA files an objection

with the State within 45 days of EPA's receipt of the citizen's

petition. There is no such time limitation in Part 70 or in the Clean

Air Act. Since Connecticut's rule attempts to limit EPA's authority,

Connecticut must amend its rule by removing the 45-day deadline.

Connecticut's regulations cannot as a legal matter preempt federal law,

and EPA retains authority to respond to a public petition during this

interim program. Nevertheless, EPA is requiring the State to make the

change in its rule due to the confusion the State rule may cause the

public and regulated community.

5. 40 CFR 70.6(a)(7) requires a permit condition that permit fees

shall be paid during the term of the permit. Connecticut's regulation

must be amended to require that permits contain a provision requiring

payment of fees during the term of the permit.

6. 40 CFR 70.5(b) requires a source to submit additional or

corrected information upon becoming aware that an application was

incomplete or contained incorrect information. Subsection (h)(2) of

Connecticut's rule limits the obligation to submit such information to

the period of pendency of the application, which is inconsistent with

Part 70. Connecticut must change this provision in its rule to meet the

requirements of 40 CFR 70.5(b).

7. 40 CFR 70.7(a)(5) requires that a State send to EPA, and make

available to any person who requests it, a statement of the legal and

factual basis for each draft permit (i.e., the version that goes to the

public for comment). Connecticut must amend its rule to include this

requirement. In addition, Part 70 requires the State to identify in the

permit the origin and authority of each permit term and condition.

Connecticut's rule only includes a requirement that the authority for

each permit term be included in the permit. Therefore, Connecticut must

amend its rule to require that the origin of permit terms and

conditions also be placed into a title V permit.

8. Subsection (j)(1)(O) of Connecticut's rule requires reporting of

permit deviations within 90 days. This time frame is inconsistent with

EPA's interpretation of Part 70's use of the term ``prompt.''

Connecticut must amend its rule to require prompt reporting of permit

deviations within a shorter time period. EPA suggests that Connecticut

require a reporting time frame of 2 to 10 days. Alternatively,

Connecticut may simply delete the reference to 90 days and issue

permits with provisions requiring prompt reporting within a shorter

time frame. Again, EPA suggests that Connecticut require a reporting

time frame of 2 to 10 days.

In addition, Connecticut must correct the conflict between the

reporting time frames set forth in subsections (j) and (p)(1) of its

rule. The current State rule has several different reporting time

frames for the same violation. Connecticut should clarify the reporting

requirements by stating that subsection (p)(1) is intended to establish

a reporting time frame only for application of Connecticut's emergency

affirmative defense contained in subsection (p)(3).

Connecticut must also remove the following language contained in

subsection (p)(1): ``after the permittee learns, or in the exercise of

reasonable care should have learned.'' The Clean Air Act and Part 70

contain a strict liability legal standard, which does not depend on

knowledge or a standard of reasonable care. Under Part 70, a permittee

may only meet the reporting requirements associated with the

affirmative defense provision if reporting is made ``within 2 working

days of the time when emission limitations were exceeded due to the

emergency.'' 40 CFR 70.6(g)(3)(iv).

9. Connecticut's emergency affirmative defense provision,

subsection (p)(3), applies to violations of ``a technology-based

emission limitation.'' The phrase used by Connecticut is consistent

with Part 70's language; however, Connecticut defines the phrase more

broadly than Part 70 intends. Connecticut defines the phrase as

``emission of pollutants beyond the level of emissions allowed by a

term or condition of the subject permit.'' Connecticut's affirmative

defense would thus apply to, among other things, health-based limits

such as Part 61 standards (as opposed to only technology-based

standards). Connecticut must therefore change its definition of

``technology-based emission limitation.''

In addition, Part 70 requires that the event at issue be

``sudden,'' ``reasonably unforeseeable,'' and ``beyond the control'' of

the source. Connecticut's rule must be amended to require that the

event be ``sudden.'' In addition, Connecticut must remove the word

``reasonable'' from the phrase ``beyond the reasonable control of the

permittee'' in subsection (p)(3).

Note that EPA has proposed to remove the emergency defense

provision from Part 70. If EPA does remove the provision, Part 70 would

still allow a facility to use any defense that is available to it

pursuant to an applicable requirement. If EPA should conclude during a

final rulemaking to remove the emergency defense provision, then

Connecticut would have to take appropriate action in the future to

address that change.

10. Connecticut's rule does not address ``Section 502(b)(10)

changes'' adequately. See 40 CFR 70.4(b)(12)(i). In an August 29, 1994

(59 FR 44572) rulemaking proposal, EPA proposed to eliminate section

502(b)(10) changes as a mechanism for implementing operational

flexibility. However, the Agency solicited comment on the rationale for

this proposed elimination. If EPA should conclude, during a final

rulemaking, that section 502(b)(10) changes are no longer required as a

mechanism for operational flexibility, then Connecticut will not be

required to address 502(b)(10) changes in its rule. However, if Part 70

retains the concept of ``Section 502(b)(10) changes,'' Connecticut will

have to amend its rule to be consistent with the detailed discussion

set forth in the Technical Support Document for this action.

11. Subsection (r)(13)(B) of Connecticut's rule states that EPA may

terminate, modify, or revoke a permit following ``an opportunity for a

hearing pursuant to subsection (m) of this section.'' The problem with

this provision is that it references a right to a hearing pursuant to

State law. EPA does not derive its hearing authority and

[[Page 64655]]

procedures from Connecticut State law. Since this State provision may

confuse the public about its rights, Connecticut must remove this

language from its regulations.

12. Connecticut's definition of ``applicable requirement'' is

missing the following elements of Part 70's definition:

a. Connecticut's definition does not include a reference to section

504(b) or 113(a)(3) of the CAA. Connecticut must amend its rule to

include section 504(b) and 113(a)(3) or the implementing regulations as

part of its definition of ``applicable requirement'' if EPA has

promulgated federal regulations implementing sections 504(b) and

113(a)(3) during the interim approval period.

b. Connecticut's definition does not include a reference to section

183(e) concerning regulation of consumer commercial products. The EPA

has implemented this section of the Act through rulemaking. The

regulations can be found at 40 CFR Part 59. Connecticut must revise its

definition of ``applicable requirements'' to include these provisions.

c. Connecticut's definition does not include a reference to the

stratospheric ozone requirements under Title VI of the Act. Connecticut

must include in its definition of ``applicable requirements'' the

requirements protecting stratospheric ozone, which are codified at 40

CFR Part 82.

13. Subsection (c)(2) of Connecticut's rule identifies specific

stationary sources which are not subject to the State's title V

requirements, where the premise on which the stationary source is

located would not for any other reason be subject to the State's title

V requirements. Subsection (c)(3) of Connecticut's rule states that a

stationary source subject to 40 CFR Part 61, Subpart I and located at a

premise subject to the State's title V requirements (for reasons other

than being subject to Subpart I) shall be subject to the State's title

V requirements. While the provision in subsection (c)(3) is not

incorrect, it is incomplete. Connecticut must amend Subsection (c)(3)

to include the other stationary sources listed in subsection (c)(2),

because Part 70 requires title V permits to contain all applicable

requirements for all relevant emissions units at a major source, not

just those subject to Subpart I. Alternatively, Connecticut could

simply delete subsection (c)(3) because it is a redundant provision in

relation to subsections (c)(1) and (2).

14. Subsection (k)(4) of Connecticut's rule, the permit shield,

states that the shield may apply to permit modifications under

Subsections (r)(1) and (r)(2). Subsection (r)(2) contains Connecticut's

procedures for administrative permit amendments. In order to be

consistent with Part 70, Connecticut's permit shield provisions must be

amended to exclude administrative amendments to the title V permit.

15. Subsection (n) of Connecticut's rule specifies that the

commissioner will provide EPA with an opportunity to review and comment

upon a tentative determination issued by the State before issuance of a

final title V permit. Connecticut's rule provides that EPA will be

given a 45-day review period for the permit that Part 70 defines as the

``draft permit,'' not the proposed final permit. The provision also

gives EPA a second 45-day review period if the State makes changes to

the tentative determination within the first 45-day period; however,

the provision does not account for changes to the tentative

determination that were made after the initial 45-day period has

expired. Connecticut must therefore amend this provision to ensure that

EPA is provided with a 45-day review period regardless of whether the

tentative determination was changed during or after the initial 45-day

review period and a final copy of the permit is sent to EPA.

16. Subsection (a)(6) of Connecticut's rule defines the term ``Code

of Federal Regulations'' or ``CFR'' to mean those federal regulations

``revised as of September 16, 1994, unless otherwise specified.'' The

State's current definition of ``Code of Federal Regulations'' would

preclude DEP from issuing title V permits containing provisions of the

federal regulations that were promulgated after September 16, 1994. The

State program therefore does not meet the Part 70 requirement that

permits contain all applicable requirements. Thus, Connecticut must

amend its rule by deleting the reference to a ``cut-off'' date

associated with the federal requirements.

17. In the June 4, 1996, Federal Register (61 FR 28197), EPA

revised the list of source categories and schedule for the 112 MACT

program. Several areas of Connecticut's title V rule refer to an

outdated Federal Register Notice listing source categories and

schedules. Connecticut must amend these cites to reflect the current

list in order to complete the list of regulated air pollutants. The

cites are in the following sections of Connecticut's rule: Sections

22a-174-33(a)(12), 22a-174-33(e)(1), and 22a-174-33(g)(2)(G).

18. On February 14, 1995, EPA published an interpretive notice that

postpones the effective date of section 112(g) until after EPA has

promulgated a rule addressing the requirements of that provision. The

section 112(g) interpretive notice explains that EPA is still

considering whether the effective date of 112(g) should be delayed

beyond the date the federal rule is promulgated in order to allow

States time to adopt rules that implement the federal rule. Connecticut

must be able to implement section 112(g) on the date that the section

112(g) regulations become effective or on the date the State's title V

program becomes effective, whichever is later. Connecticut must

therefore amend its title V rule during the interim approval period if

EPA promulgates federal regulations implementing section 112(g) and

such regulations become effective during that time.

19. 40 CFR 70.4(b)(10) states that a permit shall either not expire

or the terms and conditions of the permit shall remain in effect if a

source submits a renewal application that is timely and complete and

the State has not issued or denied the renewal permit prior to

expiration of the original permit. Subsection (j)(1)(B) of

Connecticut's rule states that ``upon expiration of the permit the

permittee shall not continue to operate the subject source unless he

has filed a timely and sufficient renewal application.'' This section

does not clearly state that in a situation where the source continues

to operate after filing a renewal application the terms and conditions

of the original permit remain enforceable. However, Connecticut's

Attorney General Opinion states that Section 4-182(b) of Connecticut's

general Statutes ``provides that a permit shall not expire so long as a

timely renewal application has been filed and is pending.'' Connecticut

should therefore amend its regulation to be consistent with its State

statutory law and with Part 70.

20. Subsection (f)(3) of Connecticut's rule addresses application

time frames for sources subject to Connecticut's title V regulation

solely by virtue of being subject to applicable requirements under 40

CFR parts 60 and 61 that became effective prior to July 21, 1992. The

provision requires application within 90 days of notice to the source

from the Commissioner or five years after the implementation date of

the State's title V rule, whichever is earlier. EPA believes that this

provision is Connecticut's attempt to address when ``minor sources''

and ``area sources'' subject to standards under Parts 60 and 61 must

apply for title V permits. Forty CFR 70.3(b) provides that a State may

[[Page 64656]]

exempt nonmajor sources from the obligation to obtain a title V permit

``until such time as the Administrator completes a rulemaking to

determine how the program should be structured for nonmajor sources * *

*'' The possibility that a source would have up to five years from the

effective date of Connecticut's program to apply for a title V permit

would not necessarily be consistent with Part 70. Connecticut must

amend its regulation to be consistent with Part 70.

21. 40 CFR 70.5(c) states that an applicant cannot omit any

information needed to determine the applicability of, or to impose, any

applicable requirement. Part 70 puts the burden of determining whether

an activity is subject to an applicable requirement on the source.

Subsection (g)(3) of Connecticut's rule lists the types of activities a

source can omit from its application. Subsection (g)(4) requires an

applicant to list on its application activities in subsection (g)(3)

``if the commissioner determines the emissions from any activity or

items are needed to determine the applicability [of the State's title V

regulation] or to impose any applicable requirement.'' The language of

subsection (g)(3) is problematic because it shifts the burden of

determining what information is necessary onto the State. The provision

is also unclear because the applicant could not provide such

information at the time of application since the Commissioner has not

yet made a determination. Connecticut must amend its rule by clearly

stating that any activity listed in subsection (g)(3)(B) be listed in

an application to the extent necessary to determine or impose an

applicable requirement

22. Subsection (j)(1)(U) of Connecticut's rule states that title V

permits will include a provision that indicates that the permit ``may

be modified, revoked, reopened, reissued, or suspended by the

commissioner, or the Administrator in accordance with this section,

section 22a-174 of the general statutes, or subsection (d) of section

22a-3a-5 of the Regulations of Connecticut State Agencies.'' The

language of this provision implies that the Administrator's legal

authority to modify, revoke, reopen, reissue, or suspend a permit

derives from State law. That is not the case. Section 505(e) of the Act

and Part 70 provide the Administrator with the legal authority to take

such actions.

While Connecticut's language cannot as a legal matter either create

or affect EPA's authority under the Act, Connecticut must amend

subsections (j)(1)(U) and (r)(13) to remove any confusion caused by the

State rule.

23. Connecticut has the authority to issue general permits pursuant

to its statutory authority under Section 22a-174 of Connecticut's

General Statutes. Forty C.F.R. 70.6(d)(1) states that a source will be

deemed to be operating without a permit if the source is later

determined not to qualify for the conditions and terms of the general

permit which it is using to comply with title V. Neither Connecticut's

statute governing general permits nor Connecticut's title V regulation

contains such a provision. Connecticut must amend its title V

regulation or general permit legislation to address this requirement.

24. Subsection (r)(2)(A)(v) of Connecticut's rule allows for

certain permit changes to be processed as administrative amendments,

including changes resulting from changes at the source subject to the

State's minor preconstruction permitting program.

The problem with this provision is that Part 70 only allows a

limited class of preconstruction review permitting changes to be

processed as administrative permit amendments, i.e., those which

incorporate the requirements from preconstruction review permits

authorized under an EPA-approved program, provided that such a program

meets procedural requirements substantially equivalent to the

requirements of Secs. 70.7 and 70.8, and compliance requirements

substantially equivalent to those contained in Sec. 70.6. Connecticut's

minor preconstruction review permitting program does not contain

provisions allowing for EPA's opportunity to veto the permit, does not

contain provisions relating to notification to affected States, and

does not contain the permit content elements of 40 CFR 70.6. Thus,

Connecticut's administrative amendment provisions must be amended to

require changes to the title V permit involving minor preconstruction

review permit requirements to be processed through permit modification

procedures that meet part 70 requirements, at least equivalent to 40

CFR 70.7(e)(2).

25. Forty CFR Sec. 70.7(e)(1) requires a State to provide adequate,

streamlined, and reasonable procedures for expeditiously processing

permit modifications. Once its administrative amendment procedures are

amended to meet Part 70 requirements, Connecticut's program will

require most permit changes to be processed as significant permit

modifications, because Connecticut's regulation does not allow for

minor permit modifications. Therefore, Connecticut must amend its

permit modification procedures to make them more streamlined and

reasonable. Connecticut should either adopt a minor permit modification

procedure for certain permit modifications consistent with Part 70, or

adopt some other equivalent process for permit modifications that do

not require public notice.

26. Forty CFR 70.5(a)(1)(iii) requires that permit renewal

applications be submitted ``at least 6 months prior to the date of

permit expiration, or such other longer time * * * that ensures that

the term of the permit will not expire before the permit is renewed.''

Connecticut's rule requires that permit renewal applications be

submitted no later than 6 months prior to the permit expiration date.

Connecticut's rule also requires that Connecticut process permit

renewal applications no later than 18 months after receipt of an

application. Connecticut's rule therefore does not ``ensure that the

term of the permit will not expire before the permit is renewed.''

Connecticut must amend its rule so that the time frames for permit

renewal application and permit renewal processing are consistent with

one another.

27. Subsection (s) of Connecticut's rule allows for the transfer

from one person to another of the authority to operate under a title V

permit to be processed as an administrative amendment. Connecticut's

rule does not contain the Part 70 requirement that a transfer may not

occur unless a written agreement between the two parties is submitted

to the State. Such agreement must contain a specific date for transfer

of permit responsibility, coverage, and liability. The problem created

by Connecticut's rule is that the State's administrative amendment

procedure allows the source to act on the proposed amendment at the

time the request for the amendment is made. Thus, the actual transfer

would take effect prior to the permit amendment. Connecticut's rule

also provides that the commissioner shall modify the permit to reflect

the transfer, and only after the permit modification shall the

transferee be responsible for complying with the permit. However, this

situation would create a problem in an enforcement context. The Clean

Air Act in general provides for enforcement against ``owners or

operators,'' but does not clearly provide for enforcement against prior

owners. EPA may not be able to enforce against the prior owner, even

though Connecticut's rule indicates that the prior owner would still be

responsible for compliance with the

[[Page 64657]]

permit rather than the new owner/operator. Thus, Connecticut must amend

its rule to require submittal by a source of a written agreement

consistent with Part 70.

28. Part 70 requires that where an applicable requirement does not

require periodic testing or monitoring, the permit shall include

periodic monitoring. Subsection (j)(1)(K)(ii) of Connecticut's rule

includes the following language: ``[T]he permittee may be required by

the permit to conduct periodic monitoring or record keeping sufficient

to yield reliable data * * *.'' Connecticut must amend its rule to

change the word ``may'' in subsection (j)(1)(K)(ii) to the word

``shall,'' because the periodic monitoring requirement is not

discretionary under Part 70. Connecticut has committed to do periodic

monitoring during the interim program.

29. Subsection (b)(2)(B)(ii) of Connecticut's rule allows ``an

individual or position having overall responsibility for environmental

matters for the company * * *.'' to act as the responsible official.

Connecticut must remove this subsection to be consistent with part 70.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of this proposed

interim approval. Copies of the State's submittal and other information

relied upon for the proposed interim approval are contained in a 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 proposed interim

approval. The principal purposes of the docket are:

(1) To allow interested parties a means to identify and locate

documents so that they can effectively participate in the approval

process; and

(2) To serve as the record in case of judicial review. The EPA will

consider any comments received by January 6, 1997.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

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, it does not have a

significant impact on a substantial number of small entities.

D. Unfunded Mandates

Under Section 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 action proposed today 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 preexisting

requirements under State or local law, and imposes no new requirements.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

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.

Authority: 42 U.S.C. 7401-7671q.

Dated: November 19, 1996.

John P. DeVillars,

Regional Administrator, Region I.

Tables to the Preamble

Table I--Delegation of Parts 61 and 63 Standards as They Apply to

Connecticut's Title V Operating Permits Program

Part 61 Subpart Categories

C Beryllium

D Beryllium-Rocket Motor

E Mercury

F Vinyl chloride

J Equip Leaks of Benzene

L Benzene-Cole by-Product Recovery Plant

N Arsenic-Glass Manufacturing

O Arsenic-Primary Copper-Smelters

P Arsenic-Trioxide and Metallic

V Equip Leaks (Fugitive Emission Sources)

Y Benzene Storage Vessels

BB Benzene Transfer Operations

FF Benzene Waste Operation

40 CFR Part 63

A General Provisions

H Organic Hazardous Air Pollutants for Equipment Leaks

I Organic Hazardous Air Pollutants for Certain Process Subject to the

Negotiated Regulation for Hazardous Leaks

N Chromium Emissions From Hard and Decorative Chromium Electroplating

O Ethylene Oxide Emission Standards for Sterilization Facilities

R Gasoline Distribution (Stage 1)

GG Aerospace Manufacturing and Rework

II Shipbuilding and Ship Repair (Surface Coating)

Table II--Part 60 Subpart Categories

D Fossil-Fuel Fired Steam Generators

Da Electric Utility Steam Generators

Db Industrial-Commercial-Institutional Steam Generating Units

Dc Small Industrial Commercial Institutional Steam Generating Units

E Incinerators

Ea Municipal Waste Combustors

F Portland Cement Plants

G Nitric Acid Plants

H Sulfuric Acid Plants

I Asphalt Concrete Plants

J Petroleum Refineries

K Petroleum Liquid Storage Vessels

Ka Petroleum Liquid Storage Vessels

L Secondary Lead Smelters

M Secondary Brass and Bronze Production Plants

N Basic Oxygen Process Furnaces Primary Emissions

Na Basic Oxygen Process Steelmaking-Secondary Emissions

O Sewage Treatment Plants

P Primary Copper Smelters

Q Primary Zinc Smelters

R Primary Lead Smelters

S Primary Aluminum Reduction

T Phosphate Fertilizer Wet Process

U Phosphate Fertilizer-Superphosphoric Acid

V Phosphate Fertilizer-Diammonium Phosphate

X Phosphate Fertilizer-Granular Triple Superphosphate Storage

Y Coal Preparation Plants

Z Ferroalloy Production Facilities

AA Steel Plants-Electric Arc Furnaces

CC Glass Manufacturing Plants

DD Grain Elevators

EE Surface Coating of Metal Furniture

GG Stationary Gas Turbines

HH Lime Manufacturing Plants

KK Lead-Acid Battery Manufacturing

LL Metallic Mineral Processing Plants

NN Phosphate Rock Plants

[[Page 64658]]

PP Ammonium Sulfate Manufacturing

QQ Graphic Arts-Rotogravure Printing

RR Tape and Label Surface Coatings

SS Surface Coating: Large Appliances

TT Metal Coil Surface Coating

UU Asphalt Processing Roofing

VV Equipment Leaks of VOC in SOCMI

WW Beverage Can Surface Coating

XX Bulk Gasoline Terminals

BBB Rubber Tire Manufacturing

DDD VOC Emissions From Polymer Manufacturing Industry

FFF Flexible Vinyl and Urethan Coating and Printing

GGG Equipment Leaks of VOC in Petroleum Refineries

HHH Synthetic Fiber Production

III VOC From SOCMI Air Oxidation Unit

JJJ Petroleum Dry Cleaners

NNN VOC From SOCMI Distillation

OOO Nonmetallic Mineral Plants

PPP Wool Fiberglass Insulation

QQQ VOC From Petroleum Refinery Wastewater Systems

SSS Magnetic Tape Coating

TTT Surface Coating of Plastic Parts for Business Machines

UUU Calciners & Dryers in the Mineral Industry

VVV Polymeric Coating of Supporting Substrates

[FR Doc. 96-31057 Filed 12-5-96; 8:45 am]

BILLING CODE 6560-50-P