03-4508. Approval and Promulgation of Air Quality Implementation Plans; Connecticut; New Source Review/Prevention of Significant Deterioration Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revisions submitted by the Connecticut Department of Environmental Protection (DEP). The revisions include new provisions that implement the core requirements of 1990 Clean Air Act Amendments (CAAA) regarding nonattainment New Source Review (NSR) in areas that have not attained the National Ambient Air Quality Standards (NAAQS). In addition, the changes amend the applicability requirements and certain other requirements of the Prevention of Significant Protection (PSD) program and NSR rules. Finally, the changes provide a definition for “Practicably Enforceable” that would allow sources a streamlined approach to limit potential to emit for PSD/NSR applicability purposes. In aggregate, these revisions will substantially strengthen the DEP's air permitting rules.

This action is to approve the revisions to section 22a-174-1, “Definitions,” section 22a-174-2a, “Procedural Requirements for New Source Review and Title V Permitting,” and section 22a-174-3a, “Permit to Construct and Operate Stationary Sources.” This action is being taken in accordance with the Clean Air Act (CAA or Act).

DATES:

This rule will become effective on March 31, 2003.

ADDRESSES:

Copies of the documents relevant to this action are available for inspection during normal business hours at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, Region I, One Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-108 West, 1301 Constitution Avenue, NW., Washington DC; and the Bureau of Air Management, Department of Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-1630.

FOR FURTHER INFORMATION CONTACT:

Brendan McCahill, [phone]; e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On January 21, 2003 (68 FR 2722), EPA published a notice of proposed rulemaking (NPR) for the state of Connecticut. The NPR proposes approval of the revisions to section 22a-174-1, “Definitions,” section 22a-174-2a, “Procedural Requirements for New Source Review and Title V Permitting,” and section 22a-174-3a, “Permit to Construct and Operate Stationary Sources.” The formal SIP revision was submitted on June 14, 2002.

Provisions in these rules that only affect programs other that PSD and NSR have not been incorporated into the SIP by today's action. For details, please contact the EPA regional office at the address given above. Furthermore, EPA is not taking action on portions of DEP's submittal that address NO_X increments. This aspect of the PSD Federal implementation plan remains in effect (see 40 CFR 52.382). The DEP has submitted other changes to the increment provisions of its SIP. EPA anticipates taking action on the NO_X increments and these other changes in a future action.

EPA has recently promulgated revisions to certain portions of the Federal PSD and nonattainment NSR regulations (67 FR 80244 (Dec. 31, 2002). These rules have an effective date of March 3, 2003. With respect to Connecticut's rules relating to new source review, EPA has determined that Connecticut's rules meet the requirements of 40 CFR part 51, subpart I, as currently in effect, and is taking no position on whether Connecticut will need to make changes to its new source review rules to meet requirements that EPA has promulgated, but are not yet effective, as part of new source review reform.

In addition, while EPA is approving Connecticut's PSD SIP, EPA recognizes that it has a responsibility to insure that all States properly implement their preconstruction permitting programs. EPA's approval of Connecticut's PSD program does not divest the Agency of the duty to continue appropriate oversight to insure that PSD determinations made by Connecticut are consistent with the requirements of the CAA, EPA regulations, and the SIP. EPA's authority to oversee PSD program implementation is set forth in sections 113, 167, and 505(b) of the Act. For example, section 167 provides that EPA shall issue administrative orders, initiate civil actions, or take whatever other enforcement action may be necessary to prevent construction of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) provides for administrative orders and civil actions whenever EPA finds that a State “is not acting in compliance with” any requirement or prohibition of the Act regarding construction of new or modified sources. Likewise, section 113(a)(1) provides for a range of enforcement remedies whenever EPA finds that a person is in violation of an applicable implementation plan.

The specific requirements of Connecticut's SIP revision and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

II. Response to Comments

EPA did not receive any comments during the comment period.

III. Final Action

EPA is approving the SIP revision submitted by Connecticut on June 14, 2002 as a revision to the SIP.

IV. Regulatory Assessment Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 28, 2003. 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).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides, and Volatile organic compounds

Dated: February 19, 2003.

Robert W. Varney,

Regional Administrator, EPA New England.

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart H—Connecticut

2. Section 52.370 is amended by adding paragraph (c)(91) to read as follows:

§ 52.370

Identification of plan.

* * * * *

(c) * * *

(91) Revisions to the State Implementation Plan submitted by the Connecticut Department of Environmental Protection on June 14, 2002.

(i) Incorporation by reference.

(A) Connecticut's amendments to Section 22a-174-1, Definitions except for the following sections: (4), (18), (20), (29), (44), (45), (60), (111), (112) and, (117). These regulations are effective in the state of Connecticut on March 15, 2002.

(B) Connecticut's new Section 22a-174-2a, Procedural Requirements for New Source Review and Title V Permitting except for the following sections: (a)(1) through (6); (b)(1) through (4); introduction to (b)(5); (b)(5)(D), (F) and, the last sentence of (G); (b)(9); (c)(2); clause after first comma “ * * * or order pursuant to section 22a-174-33(d) of regulations of Connecticut State Agency * * * ” in the introduction to (c)(6); (c)(6)(B) and (C); clause after first comma “ * * * or order pursuant to section 22a-174-33(d) of Regulations of Connecticut State Agencies * * * ” in (c)(9); reference to “Title V” in title of (d); (d)(4)(A) through (D); (d)(7)(A) through (D); (d)(8)(A) and (B); reference to “Title V” in title of (e); (e)(2)(A) and (B); (e)(3)(D); (e)(5)(A) through (F); reference to “Title V permit” in (e)(6); reference to “22a-174-33” in first clause of introduction to (f)(2); (f)(2)(F); (f)(5); (f)(6); (g)(1) and (2); (h)(1) through (3) and; (i)(1) through (3). These regulations are effective in the state of Connecticut on March 15, 2002.

(C) Connecticut's new Section 22a-174-3a, Permit to Construct and Operate Stationary Sources except for the following sections: (a)(1)(C); (c)(1)(H); (d)(3)(J) and (M); references to “Dioxin,” “PCDDs” and, “PCDFs” in Table 3a(i)-1 of (i)(1) and; (m)(1) through (8). These regulations are effective in the state of Connecticut on March 15, 2002.

(ii) Additional materials.

(A) Letter from the Connecticut Department of Environmental Protection dated June 14, 2002 submitting a revision to the Connecticut State Implementation Plan.

For the State of Connecticut:

3. In § 52.385, Table 52.385 is amended by revising existing entry in state citations for 22a-174-1, Definitions, and adding new entries in state citation for 22a-174-2a, Procedural Requirements for New Source Review and Title V Permitting and, 22a-174-3a, Permit to Construct and Operate Stationary Sources, to read as follows:

§ 52.385

EPA-approved Connecticut Regulations.

* * * * *

Table 52.385.—EPA-Approved Regulations

Connecticut State citation	Title/subject	Dates		Federal Register citation	52.370	Explanations/description
		Date adopted by State	Date approved by EPA
*         *         *         *         *         *         *
22a-174-1	Definitions	03/15/02	February 27, 2003.	[Insert FR citation from published date]		Adopting definitions applicable to PSD/NSR program.
*         *         *         *         *         *         *
22a-174-2a	Procedural Requirements for New Source Review and Title V Permitting	03/15/02	February 27, 2003.	[Insert FR citation from published date]		Provisions applicable to PSD/NSR in consolidated permit procedural requirements.
*         *         *         *         *         *         *
22a-174-3a	Permit to Construct and Operate Stationary Sources	03/15/02	February 27, 2003.	[Insert FR citation from published date]		PSD/NSR program requirements as revised by the CAAA.