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

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]

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