02-2708. Clean Air Act Final Full Approval of Operating Permit Program; State of New York

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is promulgating final full approval of the operating permit program submitted by the State of New York in accordance with Title V of the Clean Air Act (the Act) and its implementing regulations. This approved program allows New York to issue federally enforceable operating permits to all major stationary sources and to certain other sources within the State's jurisdiction. EPA is promulgating this final program approval to replace the approval granted in the December 5, 2001 Federal Register (66 FR 63180), effective on November 30, 2001, which was based on New York State emergency rules that will expire on February 1, 2002.

EFFECTIVE DATE:

January 31, 2002.

ADDRESSES:

Copies of the State's submittal and other supporting information used in developing this final full approval are available for inspection during normal business hours at the following location: U.S. Environmental Protection Agency, Region 2, 290 Broadway, 25th Floor, New York, New York 10007-1866.

FOR FURTHER INFORMATION CONTACT:

Steven C. Riva, Chief, Permitting Section, Air Programs Branch, at the above EPA office in New York or at telephone number [phone].

SUPPLEMENTARY INFORMATION:

In the December 5, 2001 Federal Register (66 FR 63180), EPA issued a final approval of the operating permit program submitted by the State of New York, based, in part, on emergency rules that became effective on September 19, 2001, and that were scheduled to expire on December 18, 2001. Concurrent with EPA's proposed approval of the emergency rules, EPA proposed approval of the New York State operating permit program based on draft permanent rules that the State was expected to shortly submit in adopted form. The draft permanent rules were identical to the adopted emergency rules. On December 4, 2001, New York State filed a 60-day extension to its emergency rulemaking. Thus, the emergency rules are now scheduled to expire on February 1, 2002.

Subsequent to publication of the December 5, 2001 Federal Register Notice (66 FR 63180), New York submitted to EPA on January 2, 2002, copies of final permanent rules that became effective on January 18, 2002. These permanent rules are identical to those effective under the emergency rulemaking.

The final New York State operating permit program approval that was effective on November 30, 2001, and based in part on New York's emergency rules, was proposed by EPA in an October 25, 2001 Federal Register Notice (66 FR 53966). During the subsequent 30-day public comment period, EPA received one comment letter dated November 23, 2001 from the New York Public Interest Research Group (NYPIRG). NYPIRG challenged EPA's ability to proceed with full approval when, according to the comment, the program does not clearly conform to the requirements of 40 CFR part 70. NYPIRG also commented on the inadequacy of New York's definition of “major source.” The remaining issues raised in this comment letter were outside the scope of the subject action. As discussed in the December 5, 2001 Federal Register, EPA disagrees with these comments. 66 FR at 63181.

Therefore, based on the final, permanent rulemaking that became effective on January 18, 2002, EPA hereby grants final, full approval to the State of New York for an operating permit program in accordance with Title V of the Act and 40 CFR part 70. The specific program changes that are the subject of this Notice, which are the same changes that were the subject of EPA's approval under New York State's emergency rules, are delineated in the December 5, 2001 Federal Register Notice (66 FR 63180).

EPA is using the good cause exception under the Administrative Procedure Act (APA) to make the full approval of the State's program effective on January 31, 2002. In relevant part, section 553(d) provides that publication of “a substantive rule shall be made not less than 30 days before its effective date, except—* * * (3) as otherwise provided by the agency for good cause found and published with the rule.” Good cause may be supported by an agency determination that a delay in the effective date is “impracticable, unnecessary, or contrary to the public interest.” APA section 553(b)(3)(B). EPA finds that it is necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that it is in the public interest for the program to take effect before February 1, 2002. EPA's full final approval of New York State's program based on the State's emergency rulemaking expires on February 1, 2002. In the absence of this full approval taking effect on January 31, 2002, the federal part 71 program would automatically take effect in New York State and would remain in place until the effective date of the fully-approved state program. EPA believes it is in the public interest for sources, the public and the State to avoid any gap in coverage of the State program, as such a gap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because New York has been administering the title V permit program for more than five years, first under an interim approval and then under full approval. Finally, sources are already complying with many of the newly approved requirements as a matter of state law. Thus, there is little or no additional burden with complying with these requirements under the federally approved State program.

Administrative Requirements

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Act and 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2). This rule will be effective on January 31, 2002.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 8, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the Act).

List of Subjects in 40 CFR Part 70

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Intergovernmental relations
• Operating permits
• Reporting and recordkeeping requirements

Dated: January 28, 2002.

Jane M. Kenny,

Regional Administrator, Region 2.

For reasons set out in the preamble, Appendix A of part 70 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. Appendix A to part 70 is amended by adding paragraph (d) in the entry for New York to read as follows:

Appendix A to Part 70—Approval Status of State and Local Operating Permit Programs

* * * * *

New York

* * * * *

(d) The New York State Department of Environmental Conservation submitted program revisions on June 8, 1998 and January 2, 2002. The rule revisions contained in the June 8, 1998 and January 2, 2002 submittals adequately addressed the conditions of the interim approval effective on December 9, 1996. The State is hereby granted final full approval effective on January 31, 2002.

* * * * *