2017-08109. Air Plan Approval; Connecticut; General Permit To Limit Potential To Emit From Major Stationary Sources of Air Pollution

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Connecticut. This revision approves into the Connecticut SIP the provisions of Connecticut's “General Permit to Limit Potential to Emit from Major Stationary Sources of Air Pollution” (GPLPE) as they apply to the restriction of emissions of criteria pollutants for which EPA has established national ambient air quality standards. Separately, we are also approving the provisions of the GPLPE as it applies to the restriction of emissions of hazardous air pollutants (HAPs). The State issued the GPLPE on November 9, 2015. The permit imposes legally and practicably enforceable emissions limitations restricting eligible sources' potential to emit air pollutants. Such restrictions would generally allow eligible sources to avoid having to comply with reasonably available control technology (RACT) that would otherwise apply to major stationary sources, title V operating permit requirements, or other requirements that apply only to major stationary sources. This action is being taken in accordance with the Clean Air Act (CAA or the Act).

DATES:

This direct final rule will be effective from June 23, 2017 to November 8, 2020, unless EPA receives adverse comments by May 24, 2017. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-OAR-2016-0542 at http://www.regulations.gov,, or via email to [e-mail]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Susan Lancey, Air Permits, Toxics, and Indoor Programs Unit, Office of Ecosystem Protection, 5 Post Office Square—Suite 100 (Mail code OEP05-2), Boston, MA 02109-3912, telephone [phone], fax [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

I. Background and Purpose

II. Evaluation of the GPLPE Under Section 110 of the Clean Air Act

III. Evaluation of the GPLPE Under Section 112 of the Clean Air Act

IV. Final Action

V. Incorporation by Reference

VI. Statutory and Executive Order Reviews

I. Background and Purpose

In a letter dated June 27, 2016, the State of Connecticut submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of Connecticut's GPLPE as it relates to criteria pollutants. Federally-enforceable limits on criteria pollutants or their precursors (e.g., VOCs or PM-10) may have the incidental effect of limiting certain HAPs listed pursuant to section 112(b) of the Act. As a legal matter, no additional program approval by the EPA is required beyond SIP approval under section 110 in order for these criteria pollutant limits to be recognized as federally enforceable. However, section 112 of the Act provides the underlying authority for controlling all HAP emissions, regardless of their relationship to criteria pollutant controls.

Connecticut's June 27, 2016 letter also requested that EPA approve the GPLPE under section 112(l) of the CAA, as the GPLPE relates to HAPs. The GPLPE was issued on November 9, 2015 and expires on November 8, 2020. As noted earlier, the GPLPE is a general permit designed to limit air pollutant emissions from major stationary sources to below major source thresholds by including legally and practicably enforceable permit restrictions on potential and actual emissions.

By letter dated August 18, 2016, CT DEEP withdrew from its June 27, 2016 SIP submittal, all explicit and implicit ^[1] references in the GPLPE to greenhouse gases (GHGs). The explicit references in the GPLPE are not being approved by EPA in this notice. In addition to those explicit references, to the extent that any provisions of, or definitions contained in, the GPLPE implicitly cover or address GHGs as a matter of state law, EPA's approval in this notice of the GPLPE specifically does not include such provisions or definitions in relation to GHGs. However, our approval excludes such definitions and provisions only insofar as, and to the extent that, they cover or address GHGs. To the extent that the same definitions and provisions implicitly address any and all other pollutants addressed by the GPLPE, those definitions and provisions are being approved into the SIP by EPA in this notice for purposes of those pollutants. In other words, EPA's approval of the GPLPE specifically excludes applicability of the GPLPE to sources of GHGs for purposes of federal law consistent with the U.S. Supreme Court's decision addressing the application of PSD permitting requirements to GHG emissions. See Utility Air Regulatory Group v. Environmental Protection Agency, 134 S. Ct. 2427. This does not, however, affect applicability of the GPLPE to sources of GHGs for purposes of state law.

We note that inclusion in our approval of Section 7 of the GPLPE, entitled “Commissioner's Powers,” does not, as a matter of law, and is not intended to, supersede or in any way affect EPA's authority under the CAA in relation to enforcement or any other authority. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

II. Evaluation of the GPLPE Under Section 110 of the Clean Air Act

As noted earlier, the State of Connecticut's principal purpose in issuing the GPLPE is to have a federally and practicably enforceable means of expeditiously restricting sources' potential and actual emissions of air pollutants, such that those eligible sources would no longer be required to comply with reasonably available control technology (RACT) that would otherwise apply to major stationary sources, title V operating permit requirements, or other requirements that only apply to major stationary sources. The operating permit provisions in title V of the Clean Air Act Amendments of 1990 created interest in mechanisms for limiting sources' potential to emit, thereby allowing eligible sources to avoid being defined as “major” with respect to title V operating permit programs. Please note, however, that a source that is eligible for coverage under the GPLPE may still need a title V operating permit if EPA promulgates a National Emissions Standard for Hazardous Air Pollutants (NESHAP) which requires non-major sources to obtain a title V permit.

The GPLPE requires a permittee to submit a registration that includes, among other things, calculation of a source's potential and actual emissions of regulated air pollutants and a detailed description of the methodology used to calculate those actual and potential emissions. The methodology used by an eligible source must be selected from a preferential hierarchy of methodologies explicitly identified in the GPLPE. Under the GPLPE, facilities may register to be limited to emissions less than 50% of the title V operating permit program thresholds for a major source; or, alternatively, facilities with certain specified source categories may apply to be limited to emissions up to, but no more than, 80% of the title V operating permit program thresholds for a major source, provided the permittee conducts the additional specified monitoring and any other additional requirements required by the GPLPE for the relevant source category. Section 5 of the GPLPE contains emissions limitations, requirements for the source to calculate potential and actual emissions, monitoring requirements, recordkeeping requirements, and requires eligible sources to submit an annual compliance certification. This approach was developed in accordance with an EPA guidance document entitled “Options for Limiting Potential to Emit of a Stationary Source under Section 112 and Title V of the Clean Air Act,” issued by John Seitz, Office of Air Quality Planning and Standards to EPA Air Division Directors, dated January 25, 1995. This guidance outlines various approaches to establishing federally-enforceable mechanisms to limit emissions from sources that wish to limit potential emissions to below major source levels.

We note that Connecticut is not relying on the GPLPE's emissions limitations for any National Ambient Air Quality Standards (NAAQS) attainment demonstration purposes. The GPLPE has a permit term of five years and expires on November 8, 2020. Therefore, when the permit expires as a matter of state law on November 8, 2020, the permit also will no longer be an enforceable part of the Connecticut SIP for purposes of federal law.

The GPLPE satisfies the criteria necessary for EPA's approval as a SIP revision under section 110 of the CAA. The GPLPE contains legally enforceable limitations on emissions that are also federally and practicably enforceable. As noted earlier, Connecticut is also seeking approval of the GPLPE under section 112(l) of the CAA for the purpose of limiting an eligible source's potential and actual emissions of HAPs. The following is a discussion of EPA's criteria for approval of the GPLPE under section 112(l).

III. Evaluation of the GPLPE Under Section 112 of the Clean Air Act

The state of Connecticut has also requested approval of its GPLPE under section 112(l) of the Act for the purpose of creating federally enforceable limitations on the potential to emit of HAPs. Approval under section 112(l) is necessary because the SIP approval discussed above, pursuant to section 110 of the Act, does not extend to HAPs. Approval pursuant to section 112(l) of the Act will render the GPLPE federally enforceable for sources of HAPs.

In order for EPA to approve the Connecticut GPLPE for limiting the potential to emit of HAPs, the GPLPE must meet the statutory criteria for approval under section 112(l)(5) of the Act. In a July 10, 1996 Federal Register notice EPA revised 40 CFR part 63, subpart E, to provide for approval of programs designed to limit sources' potential to emit HAPs under the authority of section 112(l) of the CAA. A state must demonstrate that it has satisfied the general approval criteria contained in 40 CFR 63.91(d). The process of providing “up-front approval” assures that a state has met the criteria in Section 112(l)(5) of the CAA (as codified in 40 CFR 63.91(d)). That is, that the state has demonstrated that its program contains adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. Under 40 CFR 63.91(d) (3), interim or final title V operating permit program approval satisfies the criteria set forth in 40 CFR 63.91(d) for “up-front approval.” On May 13, 2002, EPA granted full approval of Connecticut's title V operating permit program. See 67 FR 31966. Accordingly, the EPA is approving the Connecticut GPLPE pursuant to 40 CFR part 63, subpart E and section 112(l) of the Act because the program meets the applicable approval criteria in section 112(l)(5) of the Act and 40 CFR 63.91.

IV. Final Action

EPA is approving Connecticut's GPLPE as a revision to the State's SIP with respect to criteria pollutants and is separately approving the GPLPE under section 112(l) of the Act with respect to HAPs. The GPLPE was issued on November 9, 2015 and has an expiration date of November 8, 2020. EPA is not taking any action on any implicit or explicit references to GHGs contained in the GPLPE (which Connecticut withdrew from the June 27, 2016 SIP submittal). EPA is approving Connecticut's request in accordance with the requirements of sections 110 and 112 of the CAA.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective June 23, 2017 without further notice unless the Agency receives relevant adverse comments by May 24, 2017.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 23, 2017 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the General Permit to Limit Potential to Emit from Major Stationary Sources, issuance date November 9, 2015, except for all provisions related to greenhouse gases which Connecticut withdrew from consideration as part of the SIP as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov,, and/or at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

VI. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 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 action 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. 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 June 23, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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
• Volatile organic compounds

Dated: April 10, 2017.

Deborah A. Szaro,

Acting 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)(114) to read as follows:

§ 52.370

Identification of plan.

* * * * *

(c) * * *

(114) Revisions to the State Implementation Plan submitted by the Connecticut Department of Energy and Environmental Protection on June 27, 2016 and August 18, 2016.

(i) Incorporation by reference.

(A) General Permit to Limit Potential to Emit from Major Stationary Sources, issuance date November 9, 2015, except for the provisions listed below, related to greenhouse gases which Connecticut withdrew from consideration as part of the SIP.

(1) In Section 2, the definitions for “Carbon Dioxide Equivalent Emissions” or “CO₂”, “Greenhouse Gases” or “GHG”, “Hydroflourocarbon” or “HFC”, and “Perfluorocarbon” or “PFCs” in paragraph (a);

(2) In Sections 4 and 5, the words “excluding GHG which are limited to less than 100% of Title V source threshold as defined in section 22a-174-33(a)(10)(F)(iv) of the Regulations of Connecticut State Agencies” in paragraphs (4)(c)(2)(E)(i) and (ii), 4(c)(2)(J), 4(d)(1), and 4(g)(5)(A) and (B); and 5(a)(1) and (2);

(3) In Section 5, the words “excluding GHG which are limited to less than 100% of Title V source threshold” in the introductory paragraph;

(4) In Section 5, paragraphs 5(b)(2)(A)(vi) and 5(b)(2)(B)(i);

(5) In Section 5, the words “and (vi)” in paragraph 5(b)(2)(A)(vii); and

(6) In Section 5, the words “other than GHG” in paragraphs 5(b)(2)(B)(ii) and (iii).

Footnotes

1.  Certain terms used in the GPLPE are more fully defined in other parts of the State's SIP or Title V program regulations. To the extent that such terms are used in the GPLPE they would implicitly cover or address GHGs. These implicit references to GHGs also were withdrawn by Connecticut.