COMMENTS BY THE CONNECTICUT BUSINESS & INDUSTRY ASSOCIATION REGARDING THE PROPOSED GENERAL PERMIT TO LIMIT POTENTIAL TO EMIT (GPLPE)

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1 September 18, 2015 COMMENTS BY THE CONNECTICUT BUSINESS & INDUSTRY ASSOCIATION REGARDING THE PROPOSED GENERAL PERMIT TO LIMIT POTENTIAL TO EMIT (GPLPE) The Connecticut Business & Industry Association (CBIA) submits the following comments regarding the GPLPE accompanying the Notice of Tentative Determination Intent to Issue, dated August 13, I. Retain the applicability of the GPLPE to sources with actual emissions of less than 100% of Title V source thresholds The Connecticut GPLPE has a 20-year track record as an innovative compliance tool for smaller sources including small businesses, to comply with a broad and complex federal air permitting program. We are unaware of any instances where the existing GPLPE failed to protect human health or the environment. Unfortunately, we understand that legal counsel within the federal Environmental Protection Agency (EPA) in Washington D.C. recently reviewed Connecticut s GPLPE program and decided, based on a rationale we have yet to see articulated, that it was not stringent enough. The current proposed GPLPE would subject dozens of Connecticut companies, including many manufacturers, to additional regulatory burdens that will add to their expenses and hurt their ability to compete and grow without any documented environmental benefit. It will also leave some of these companies with no practical alternative but to endure the even greater expense and regulatory burden associated with acquiring an individual Title V permit. The impact will be especially intense for affected businesses in Fairfield County where the emission triggers are already 50% lower than the rest of the state. Additionally, this proposed reduction in GPLPE applicability could detrimentally impact Connecticut s and New England s ability to respond in the event of an energy emergency. Hundreds of Connecticut sources, including a number of GPLPE permittees participate in ISO- New England s 30-minute demand load response program. Under this program, companies agree to take load off the grid in an energy demand emergency. This is generally accomplished through the use of emergency engines. Ratcheting down on a company s flexibility to switch to this alternative power source could impact their ability to provide relief to the grid and thereby increase the likelihood of an emergency becoming an economic and public health crisis. Finally, Connecticut regulations expressly authorize the Department of Energy and Environmental Protection (DEEP) to provide a mechanism for sources to avoid Title V permitting by limiting emissions to less than Title V thresholds. RCSA 22a (d)(1). It

2 does not require that the emissions be limited to any amounts other than the thresholds. CBIA understands that this regulation is a component of Connecticut s State Implementation Plan approved by EPA. Therefore, we find it inconsistent and perhaps legally challengeable that EPA now seeks to constrain Connecticut s authority in operating the program. CBIA urges the Department to insist that EPA produce its written legal and environmental justification for imposing this additional burden on Connecticut businesses after 20 years of successful implementation and making New England s power grid more vulnerable. The justification should be made publicly available and, until such justification can be produced and evaluated, DEEP should retain the GPLPE s availability to sources with actual emissions of less than 100% of the major source thresholds. II. Bring the GPLPE into compliance with federal law regarding greenhouse gas emissions. As the Department is aware, in 2014 the U. S. Supreme Court ruled that the 100,000 tons/yr. PTE Title V permitting trigger that EPA created uniquely for greenhouse gases (GHGs) lacked any basis in the Clean Air Act, and was unlawful. Utility Air Regulatory Group v. EPA, 134 S.Ct (June 23, 2014). Consistent with that ruling and subsequent proceedings on remand, EPA has issued guidance and has now removed from the federal Title V regulations those provisions that require a source to obtain a Title V permit solely because the source emits or has the potential to emit GHGs above applicable thresholds. See 80 Fed. Reg (Aug. 19, 2015). Also as the Department is aware, prior to UARG v. EPA, the Connecticut Title V regulations were amended in 2013 to incorporate the 100,000 tons/yr. trigger. However, now that this trigger has been rejected by the U.S. Supreme Court, CBIA asks the Department to remove all references or cross-references to a 100,000 tons/yr. trigger or any percentage thereof for GHGs in the reissued GPLPE. Similarly, pending additional rulemaking by EPA to further implement the Supreme Court s decision, CBIA asks the Department to amend the state s Title V regulations to remove the references to GHGs in RCSA 22a (a)(10)(F). Alternatively, CBIA asks the Department to issue interim guidance to state that pending such additional EPA rulemaking, the Department will not require Title V permits for sources based solely on their GHG emissions or potential emissions. Interim guidance issued earlier this year by the Rhode Island Department of Environmental Management provides a straightforward example (Interim Guidance on Prevent of Significant Deterioration (PSD) and Title V Permitting for Greenhouse Gases (GHGs), RIDEM (May 22, 2015)).

3 III. 6-Month permit extension CBIA is very concerned about the very limited time period in which the revised GPLPE is being reviewed and implemented. We understand the timing is not the Department s preference or doing, and we appreciate the Department having released a prior (and at points significantly different) draft of the proposed GPLPE shortly before the public notice, but that unfortunately does not change the situation. As the Department is aware, the GPLPE is heavily-used currently by some 221 sources throughout the state in a broad variety of industries and activities and is critical to avoiding significant time and costs to both regulated parties and the Department. The limited timing of the current schedule would force the Department to rush through significant changes to a major program, and give regulated parties little time to assess and review these changes. Even in a best-case scenario under the current schedule, the proposed GPLPE simply cannot be adopted in time for permittees to assemble, certify and submit the extensive information required for registration, and for the Department to review and approve these registrations before the current GPLPE expires on November 19, Even aside from that, rushing the revised GPLPE to adoption will inevitably result in quality issues that will not be discovered until it is too late to address them. This is too important a program to rush, particularly where there is absolutely no environmental benefit to doing so. Importantly, CBIA also notes that forms to implement the GPLPE are not yet available. While these forms are not formally required to be included in a notice of intent and opportunity to comment, for purposes of a sound GPLPE program, they should be. These forms are critical to ensuring that the regulated community understands what is required and that the forms are consistent with the substance of the general permit. Similarly, ensuring these forms are as accurate and user-friendly as possible is important to promote maximum compliance. The forms are also important for confirming the targeted purpose of the GPLPE in limiting potential and actual site-wide emissions, and to understanding how the revised GPLPE may or may not impact the hundreds of affected sources. The unavailability of these forms during the public comment period limits affected sources ability to fully understand the implications of the permit on their facilities and therefore their ability to provide fully informed comment on the GPLPE. 1 In order to give the renewal of this critical program the careful attention it deserves, to allow time to solicit informal public feedback on the necessary supporting forms, and to avoid a wasteful last-minute application and approval rush around the November 17, 2015 deadline, CBIA requests that the Department extend the current GPLPE by six months, while continuing to proceed with development of a renewed GPLPE. Such a limited extension, necessitated by extraordinary circumstances outside of DEEP s control and serving important purposes as discussed above, would seem authorized under the grant to the Commissioner of all incidental powers necessary to carry out the purposes of [air quality 1 CBIA also understands DEEP shortly intends to issue a revised GPLPE based on discussions with the federal EPA. Accordingly, CBIA urges that in doing so, DEEP include the proposed revised annual certification and instruction forms along with the materials for review and public comment.

4 statutes], CGS 22a-174(d). A limited extension would also not contravene the directive in CGS 22a-174(k)(3) that general permits for air quality be issued for a term of no more than five years (emphasis supplied). IV. Specific provisions of the proposed GPLPE Section 2: Definitions Some terms in this section, including a new definition for Continuous emission monitoring or CEM, are already defined in section 22a of the Regulations of Connecticut State Agencies. Restating the definition within the general permit may lead to potential inconsistencies should the regulatory definition change. On the other hand, the permit is more readable for regulated entities if it is self-contained and does not require cross-referencing to other documents. We suggest that the definitions in the general permit reference the regulatory definition where there is one (as is the case for example, with Potential emissions ) or the statutory definition (as with Person ), but that the electronic version of the general permit include hyperlinks to the regulatory or statutory definitions so, at least when working off the electronic version, the regulated community can have immediate access to the correct definition. There is one new proposed definition and section within the GPLPE that CBIA urges DEEP to modify for the limited purposes of the GPLPE in accordance with our comments on section 5(c), below. Section 5(b). Source of Data for Calculating Emissions Flexibility in this area is extremely important. Published emission factors and engineering calculations are routinely accepted for estimating emissions for Title V sources and commonly specified as means of demonstrating compliance with NSR permits. And while we understand the desire for a high level of detail with respect to implementation of the permit to go through the public participation process, AP-42 emission factors are not currently available for all types of emissions, necessitating reservation of flexibility to deal with such occasional instances. For example, many businesses operate propane-fired emergency engines, many of which are quite small, but nevertheless need to be included in GPLPE emission calculations. However, there are no emission factors in AP-42 for propane or LPG-fired engines and obtaining useable manufacturer s data for these small engines is next to impossible, especially for older engines. Without access to published emission factors and engineering calculations, this could leave facilities with no options for evaluating emissions from certain emission sources other than performing stack testing, which as a practical matter is entirely unrealistic in many situations. Therefore, CBIA requests at least two additional options for determining emissions be included in section 5(b):

5 1. Determine emissions through use of published emission factors such as from the Aerometric Information Retrieval System (AIRS) Facility Subsystem (a/k/a Air Facility System (AFS)).. DEEP has previously sanctioned these emission factors and referenced their use in instruction documents. The proposed GPLPE, however, does not mention them, and therefore arguably would prohibit their use. 2. Allow a permittee to estimate emissions in accordance with EPA s Emission Inventory Improvement Program (EIIP). Similarly, the provision in the current GLPLE for another engineering methodology, provided such other methodology has been approved in writing by the commissioner before being used to calculate emissions (section 5(b)(7)) is important for flexibility and should be retained. The procedural concerns previously cited by the Department for omitting it in the proposed GPLPE seem readily resolved by adding provisions for public notice and EPA approval. Section 5(c). Monitoring and Emission Testing Requirements Section 5(c) introduces a new subsection on monitoring and emission testing. The subsection proposes to utilize the definition of the term monitoring as provided in RCSA 22a-174-1(74) for purposes of air programs generally. However, in the specific context of the GPLPE, this definition is significantly overbroad and beyond the scope of the type of monitoring that would be consistent with the goals of the GPLPE. Specifically, unlike the Title V permit, the GPLPE serves a targeted purpose: to limit potential and actual emissions on a site-wide basis to below trigger thresholds for a Title V permit. The first part of the general definition of monitoring -- any action or procedure that is used to determine actual emissions from a stationary source -- is consistent with this purpose. However, the general definition also includes or compliance with the requirements of any permit, order, statute or regulation. Including this in the definition of monitoring for purposes of the GPLPE, as proposed, could be construed as requiring GPLPE registrants not just to certify compliance with the GPLPE s emission limits, but also with any other applicable airrelated requirement. This, in our view, is wholly inconsistent with the GPLPE s limited purpose. For example, the proposed definition might be construed to imply that GPLPE sources would need to document and certify performance of all procedures used to determine compliance with any and all requirements under other, unrelated air programs: opacity monitoring, oil filter changes under the RICE MACT, Boiler MACT, MASC, NOx RACT, general house-keeping practices under Chrome MACT, and even purely administrative requirements such as reporting and record-retention. This would effectively collapse the GPLPE into Title V, which we are certain is not the Department s intent. Our understanding is that the agency has introduced a monitoring component into the GPLPE for the focused purpose of ensuring that a source s potential and actual emissions figures verify the

6 source s continued eligibility for, and compliance with the GPLPE. Therefore, we suggest modifying the definition of monitoring in section 2(a) in either of the following ways: Monitoring means any action or procedure that is used to determine actual emissions from a stationary source or compliance with the requirements of any permit, order, statute or regulation. or Monitoring means monitoring as defined in RCSA 22a-174-1(74) except that for purposes of this general permit, monitoring shall not include any action or procedure to determine compliance with the requirements of any other permit, order, statute or regulation. Additionally, section 5(c)(1) as proposed would require the permittee to monitor regulated air pollutant emission rates and operating parameters for each subject emission unit in accordance with the requirements of all applicable permits, orders, statutes and regulations. It will be important to ensure that this requirement likewise stays focused on the purpose of the GPLPE in limiting actual and potential emissions, rather than addressing compliance with any and all applicable requirements. Ensuring the GPLPE reflects this focus is particularly important since the annual reporting and compliance certification forms to implement the revised GPLPE are not yet available. Also, for many sources, applicable requirements require monitoring of emission rates (e.g., with a CEM) or operating parameters, but not both. To prevent potential misinterpretation of section 5(c)(1) on either of these points, it should be revised as follows: The permittee shall monitor regulated air pollutant emission rates and or operating parameters used to calculate emission rates for each subject emission unit in accordance with the requirements of all applicable permits, orders, statutes and regulations. Section 5(d). Record Keeping Requirements Section 5(d)(1)(A)(iv) would modify the existing GPLPE by requiring all sources to keep records of the total quantity of emissions for each air pollutant for each monthly and rolling 12- month period. The current GPLPE only requires such record-keeping for facilities having actual emissions within 20% of the major source thresholds. This expansion of regulatory burdens will add significant expense to many small sources with no reasonable expectation of environmental benefit or protection. CBIA urges that DEEP restore the economically and environmentally justifiable approach of limiting the sources required to conduct such record-keeping to those within 80% of the Title V major source thresholds.

7 Additionally, the inclusion of new reporting and record-keeping requirements will require modification and upgrading of existing GPLPE recordkeeping systems to include emission factors for all emission sources and applicable pollutants and additional emission calculations. Therefore, we request that DEEP provide a compliance grace period for those calculations/records (e.g., by adding language to this effect to the GPLPE, or by releasing a Department policy statement). Although current GPLPE registrants have spreadsheets and other recordkeeping systems that maintain monthly operating records (e.g., monthly fuel consumption, monthly fuel purchases, equipment operating hours, etc.) as required by the current GPLPE, significant efforts will be needed to modify and upgrade those systems to include emission factors for all emissions sources and applicable pollutants and to perform the required emissions calculations. For facilities such as schools and hospitals that have a variety of small emissions sources and very limited resources, this will be a major undertaking. Further, it is not clear that the proposed new GPLPE, if it were to be adopted and become effective before the end of 2015 and require emission calculations each month, would or legally could require the compliance certification due on March 1, 2016 to include rolling 12-month emissions for each month of 2015, including periods preceding the effective date of the new GPLPE. To avoid confusion, CBIA requests confirmation that this would not be the case. Finally, CBIA would also appreciate understanding DEEP s reason for advancing the deadline for annual records required by the general permit to February 15 th (subsection 5(d)(3)). Some businesses have reported difficulty in meeting the current March 1 deadline. Unless there is a compelling reason to move this date, CBIA would appreciate the annual reporting deadline remaining March 1. This would also promote consistency and simplicity because the proposed GPLPE already sets March 1 as the submittal deadline for the annual compliance certification (section 5(e)(1)(A)). CBIA appreciates the Department s consideration of these comments.