[Federal Register Volume 61, Number 236 (Friday, December 6, 1996)]
[Proposed Rules]
[Pages 64651-64658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31057]
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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:
[[Page 64652]]
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
