[Federal Register Volume 61, Number 147 (Tuesday, July 30, 1996)]
[Proposed Rules]
[Pages 39617-39623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19325]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NY001; FRL-5544-3]
Clean Air Act Proposed Interim Approval of Operating Permits
Program: State of New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes interim approval of the operating permits
program submitted by the State of New York 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.
DATES: Comments on this proposed action must be received in writing by
August 29, 1996.
ADDRESSES: Written comments should be addressed to Steven C. Riva,
Chief, Permitting and Toxics Support Section, at the New York Region II
Office listed below. Copies of the State's submittal and other
supporting information used in developing the proposed interim approval
as well as the Technical Support Document are available for inspection
during normal business hours at the following locations:
EPA Region II, 290 Broadway (21st Floor until July 19, 25th Floor
after July 19), New York, New York 10007-1866, Attention: Steven C.
Riva.
New York State Department of Environmental Conservation, 50 Wolf
[[Page 39618]]
Road, Room 608, Albany, New York 12233-1500, Attention: John Higgins.
FOR FURTHER INFORMATION CONTACT: Gerald DeGaetano, Permitting and
Toxics Support Section, at the above EPA office in New York or at
telephone number (212) 637-4020.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under Title V of the Clean Air Act (``the Act'') as
amended (1990), 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 Title 40 of
the Code of Federal Regulations (40 CFR) part 70. Title V of the Act
directs States to develop, and submit to EPA for approval, programs for
issuing operating permits to all major stationary sources and to
certain other sources. Due to pending litigation over several aspects
of the part 70 rule which was promulgated on July 21, 1992, part 70 is
in the process of being revised. When the final revisions to part 70
are promulgated, the requirements of the revised part 70 may re-define
EPA's criteria for the minimum elements of an approvable State
operating permits program and the corresponding standards and
procedures by which EPA will approve, oversee, and withdraw approval of
State operating permits program submittals. Until the date on which the
revisions to part 70 are promulgated, the currently effective July 21,
1992 version of part 70 shall be used as the basis for EPA's review.
The Act directs States to develop and submit these programs for EPA
approval. 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 2 years after the November 15, 1993 date, or by
the end of an interim program, it must establish and implement a
Federal program.
Proposed Action and Implications
A. Analysis of State Submission
1. Support materials. Commissioner Thomas C. Jorling of the
Department of Environmental Conservation (DEC) submitted a part 70
permitting program for the State of New York with a letter requesting
EPA's approval on November 12, 1993 and Deputy Commissioner David
Sterman submitted a supplemental package on June 17, 1996. These
submittals contain a description of how the DEC intends to implement
the program consistent with the requirements of the Act and 40 CFR part
70. The submittals include supporting documentation such as evidence of
the procedurally correct adoption of the permitting rule, the permit
application form, and a description of the compliance tracking and
enforcement program. On June 27, 1996 the Attorney General of New York
submitted a legal opinion stating that DEC has adequate legal authority
to carry out the program. The Attorney General Legal Opinion was the
final submission of the DEC's complete part 70 application.
The analysis contained in this document focuses on the major
portions of New York's operating permits program submittal, including
regulations and program implementation, the permit fee demonstration,
and provisions implementing the requirements of sections 111 and 112 of
Title I and of Title IV of the Act. This document also addresses the
deficiencies in New York's submittal which will need to be corrected
prior to full approval by EPA.
2. Regulations and program implementation.
New York's part 70 permitting regulations are contained in Title 6
of the Official Compilation of Codes, Rules and Regulations of the
State of New York (``6 NYCRR'') Part 200; 201-1.1 to 201-1.3, 201-1.5
to 201-1.10, 201-2, 201-3, 201-6, 201-8 and Appendices A and B of Part
201; 482-2; 621.1, 621.3(e), 621.3(f), 621.4(g), 621.5, 621.6, 621.7,
621.9, 621.13 and 621.14; 624.3 and 624.12. New York's regulations meet
the main requirements of part 70 as described below:
a. applicability (40 CFR 70.2 and 70.3): Sources required to obtain
a part 70 permit under New York's regulation include all major
stationary sources as defined in 6 NYCRR 201-2, any source subject to a
New Source Performance Standard, any source subject to a standard under
section 112 of the Act (except that a source is not required to obtain
a part 70 permit solely because it is subject to 112(r) of the Act),
any affected source under the acid rain provisions of Title IV of the
Act, and any stationary source designated by the Administrator and
added by the DEC pursuant to rulemaking. Please note that while New
York lists sources subject to a New Source Performance Standard in 40
CFR part 60, et seq. as being subject to Title V, EPA interprets this
also to include rules that DEC promulgates pursuant to section 111(d)
of the Act, as defined in 40 CFR part 60, subparts B and C, but that
are approved by EPA under 40 CFR part 62. New York is also deferring
non-major sources, consistent with part 70, until the Administrator
completes a rulemaking to determine how the Title V program should be
structured for non-major sources and the appropriateness of any
permanent exemptions. New York's regulation permanently exempts any
source that would be required to obtain a permit solely because it is
subject to Standards of Performance for New Residential Wood Heaters or
the National Emission Standard for Hazardous Air Pollutants for
Asbestos, Standards for Demolition and Renovation. (6 NYCRR 201-2 and
201-6.1)
b. permit content (40 CFR 70.6): 6 NYCRR 201-6.5 requires that each
permit contain emission limitations and standards to ensure compliance
with all applicable requirements at the time of permit issuance.
Permits may also contain certain operational flexibility requirements
such as terms and conditions for alternate operating scenarios and for
the trading of emissions increases and decreases (to the extent the
applicable requirements provide for such trading) in the permitted
facility. If requested by the applicant, permits can be issued that
provide for emissions trading in the permitted facility solely for the
purpose of complying with a federally enforceable emissions cap
independent of otherwise applicable requirements.
c. public participation (40 CFR 70.7): The public will be provided
with notice of, and an opportunity to comment on, draft permits
relating to initial permit issuance, permit renewals, and significant
modifications (6 NYCRR 621.6).
d. permit modifications (40 CFR 70.7): Sources may apply for
expedited permit changes for minor permit modifications. Significant
modifications must undergo all part 70 permit issuance procedures (6
NYCRR 201-6.7).
e. EPA oversight (40 CFR 70.8): Each permit, renewal, and minor or
significant modification is subject to EPA oversight and veto (6 NYCRR
201-6.4).
f. insignificant activities (40 CFR 70.5): The list of
insignificant activities can be found at 6 NYCRR 201-3.2 (``Exempt
Activities'') and the list of trivial activities is found at 201-3.3.
Activities can only be considered insignificant or trivial if not
subject to any applicable requirements. In addition, sources must not
omit
[[Page 39619]]
emissions from insignificant or trivial activities from emission
calculations to determine if a source is subject to the part 70 permit
program. Insignificant activities must still be listed in the permit
application while trivial activities do not need to be listed. In
addition, 6 NYCRR 201-6.3(d)(7) provides that emissions from units at
major stationary sources shall be considered insignificant as long as
they are not subject to any applicable requirements and meet the
following criteria: emissions of criteria contaminants do not exceed
2.5 tpy based on actual emissions, provided on-site records are
maintained to verify these emissions, or 2.5 tpy based on potential to
emit; and emissions of a hazardous air pollutant do not exceed 1000 lb/
yr and/or 5000 lb/yr for any combination of hazardous air pollutants
except where the Administrator has established lower thresholds for a
specific hazardous air pollutant or major source threshold (emissions
can be based on actual emissions if on-site records are maintained or
on potential emissions if records are not kept); and the emission unit
does not utilize air pollution control devices or is not limited by an
emission cap to meet the above criteria.
g. enforcement authority (40 CFR 70.11): Section 71-2103(1) of New
York's Environmental Conservation Law provides that civil penalties
shall be recoverable in an amount up to $10,000 per day per violation
for a first violation and $15,000 per day for subsequent violations.
Section 71-2103(1) also provides for injunctive authority. Section 71-
2105(1) provides that for willful violations criminal fines of up to
$10,000 per day per violation and/or imprisonment are available in the
case of a first violation and criminal fines of up to $15,000 per day
per violation and/or imprisonment are available in the case of a second
or further violation.
Pursuant to 72-0201(12) of the Environmental Conservation Law, any
person who fails to pay fees shall pay a penalty of 50% of the unpaid
fee amount plus interest. If the source continues not to pay its fees,
New York may exercise its authority under 6 NYCRR 481.8 to revoke or
suspend the title V permit. The source could then be subject to civil
and criminal liability for operating without a permit.
h. complete application forms (40 CFR 70.5): 6 NYCRR 201-6.2 and
201-6.3 define what elements must be in an application in order for it
to be complete during the first phase application submittal and second
phase application submittal. All sources, except those required to
submit the entire application within the first year, must submit the
phase I application within twelve months after EPA approves the program
to allow DEC to commence review of the permit application. Phase II
applications, which contain all required information, must be submitted
in accordance with the application schedule in Appendix B of Part 201
(not yet complete--see item k. below). All information identified in 40
CFR 70.5 is included in New York's permit application.
i. prompt reporting: Part 70 requires prompt reporting of
deviations from the permit requirements. Section 70.6(a)(3)(iii)(B)
requires the permitting authority to define ``prompt'' in relation to
the degree and type of deviation likely to occur and the applicable
requirements. Although the permit program regulations should define
``prompt'' for purposes of administrative efficiency and clarity, an
acceptable alternative is to define ``prompt'' in each individual
permit. In general, the EPA believes that ``prompt'' should be defined
as requiring reporting within two to ten days for deviations that may
result in emission increases. Two to ten days is sufficient time in
most cases to protect public health and safety as well as to provide a
forewarning of potential problems. For deviations resulting in low
levels of excess emissions, a longer time period may be acceptable.
Where ``prompt'' is defined in the individual permit but not in the
program regulations, EPA may veto permits that do not contain
sufficient permit conditions for the prompt reporting of deviations.
New York's 6 NYCRR 201-6.5(c)(3)(i) requires submittal of reports of
any required monitoring at least every six months. 201-6.5(c)(3)(ii)
provides that permit deviations must be reported with the monitoring
reports required in 201-6.5(c)(3)(i) unless DEC specifies a different
reporting requirement in the permit. DEC must issue permits which
require prompt reporting of deviations. Absent this, EPA may veto
permits.
j. emergency: In 201-1.5, New York provides for the affirmative
defense to an action brought for noncompliance with emission
limitations or permit conditions as long as the source follows specific
procedures consistent with 40 CFR 70.6(g). New York defines
``emergency'' in 201-2 consistent with Sec. 70.6(g) and limits the
applicability to technology-based requirements under the permit or
State-established emission limitations.
k. Transition Plan: New York currently plans to issue permits to
all sources within three years. Originally, when proposing Part 201,
New York had planned to request source category-limited interim
approval in order to issue all permits over a five-year period.
However, because the enabling legislation requires that initial permits
be issued within three years, Part 201 was promulgated to provide for a
three-year transition period. Currently, New York is re-proposing
Appendix B of 6 NYCRR Part 201 ``Transition Plan Application Schedule''
which will inform sources of when during the three year period they
must submit their Phase II permit applications. Appendix B will be
finalized prior to EPA's promulgation of final interim approval of New
York's part 70 program.
3. Permit fee demonstration. New York's resource fee demonstration
shows that the state will collect sufficient revenue to implement the
Title V program. New York began collecting permit fees on January 1,
1994 at $25 per ton of regulated pollutants up to 6000 tons annually of
each regulated pollutant. This rate of $25 per ton was adjusted by the
Consumer Price Index (CPI) [base year 1994]. New York's resource fee
demonstration shows that New York will collect the equivalent of EPA's
presumptive minimum because New York's cap on fees is 2000 tons higher
than the cap assumed for the presumptive minimum and because New York
has ramp-up funds available to cover the four year period provided in
the resource fee demonstration. EPA agrees that New York's fee,
although based on a different year for the CPI, can be considered
equivalent to the presumptive minimum and should be sufficient to
support the Title V program (EPA's presumptive minimum assumes use of
the 1989 base year CPI). In addition, New York is required to report
annually to the Governor, Legislature, and Office of State Comptroller
on its program costs, revenue and progress. EPA will review these
reports to ensure that New York's fee is sufficient to cover program
costs after the program has been in effect for one to two years.
As specified in the enabling legislation and 6 NYCRR 482-2, fees
shall be based on actual emissions for the prior calendar year, as
demonstrated to DEC's satisfaction, or in the absence of such
demonstration, on permitted emissions, or, where there is no permit, on
potential to emit. Furthermore, New York's enabling legislation
establishes a special account entitled ``operating permit account''
under the Clean Air Fund to cover the reasonable direct and indirect
costs of developing and administering New York's operating permits
program and the small business stationary source technical and
[[Page 39620]]
environmental compliance assistance program.
4. Provisions implementing Section 112 of the Act. a. authority for
section 112 implementation: New York has demonstrated in its Title V
program submittal adequate legal authority to implement and enforce all
section 112 requirements through the Title V permit. This legal
authority is contained in New York's enabling legislation and in
regulatory provisions defining ``applicable requirements'' in that the
permit must incorporate all applicable requirements. EPA has determined
that this legal authority is sufficient to allow New York to issue
permits that assure compliance with all section 112 requirements,
including section 112(r).
b. implementation of section 112(g): The EPA issued an interpretive
notice on February 14, 1995 (60 FR 8333), which outlines EPA's revised
interpretation of 112(g) applicability. The notice postpones the
effective date of 112(g) until after EPA has promulgated a rule
addressing that provision. The notice sets forth in detail the
rationale for the revised interpretation.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), New York must be able to
implement section 112(g) during the period between promulgation of the
Federal section 112(g) rule and the adoption of New York rules
implementing EPA's section 112(g) regulations or New York's
incorporation by reference of the 112(g) regulations.
The EPA is proposing to approve New York's preconstruction
permitting program, found in 6 NYCRR Part 201, under the authority of
Title V and part 70 solely for the purpose of implementing section
112(g) to the extent necessary during the transition period between
Title V approval and adoption of a State rule implementing EPA's
section 112(g) regulations.
c. program for straight delegation of section 112 standards:
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 General Provision Subpart A and standards as promulgated
by EPA as they apply to part 70 sources. Section 112(l)(5) requires
that a State's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule, which are
also requirements under part 70. Therefore, the EPA is also proposing
to grant approval under section 112(l)(5) and 40 CFR 63.91 of the
State's program for receiving delegation of section 112 standards that
are unchanged from the Federal standards as promulgated. New York has
informed EPA that it intends to accept delegation of section 112
standards through either: case-by-case rule adoption; or incorporation
by reference of the Federal regulation into State regulation. The
details of this delegation mechanism are set forth in a letter dated
June 18, 1996 in which New York requested delegation of section 112
standards and section 111 New Source Performance Standards. This
program applies to both existing and future standards and covers both
part 70 and non-part 70 sources. However, New York does not intend to
take delegation of the 112(r) program, but will still implement the
appropriate permit conditions relevant to the risk management program
in part 70 permits. In addition, this delegation does not include
National Emission Standards for Hazardous Air Pollutants for Asbestos,
Standards for Demolition and Renovation.
5. Provisions implementing Section 111 of the Act. As requested in
the letter dated June 18, 1996, the EPA is approving New York's request
for delegation of all existing New Source Performance Standards
promulgated pursuant to section 111 of the Act except for 40 CFR part
60, subpart AAA, Standards of Performance for New Residential Wood
Heaters.
New York also commits to implement appropriately the existing and
future requirements of sections 111, 112 and 129 of the Act, and all
MACT standards promulgated in the future, in a timely manner.
Currently, 6 NYCRR Part 200.10(d), Table 4, does not include 40 CFR
part 63, subpart D--Compliance Extensions for Early Reductions of HAPs.
In addition, 6 NYCRR Part 200.10(b), Table 2, is missing 40 CFR part
60, subpart WWW--New Source Performance Standards for Landfills. New
York must use its minor rulemaking procedures to incorporate by
reference these federal rules.
6. Provisions implementing Title IV of the Act. In 6 NYCRR
200.10(e), Table 5, New York has incorporated by reference the
provisions of 40 CFR parts 72 through 78 for purposes of implementing
an acid rain program that meets the requirements of Title IV of the
Act. By incorporating by reference, New York has the authority to
include the applicable requirements of Title IV in permits and to
enforce such requirements. 201-6.6(b) also provides additional
information for facilities subject to the Acid Rain Program and
clarifies that, where an applicable requirement of the Act is more
stringent than the regulations promulgated under Title IV, both
requirements will be incorporated into the permit.
B. Options for Approval/Disapproval and Implications
1. Interim approval. The EPA is proposing to grant interim approval
to the operating permits program submitted by New York on November 12,
1993 and supplemented on June 17 and 27, 1996. New York must make the
following changes to receive full program approval within eighteen
months of EPA's final approval to grant interim approval program
status:
i. New York's definition of `Regulated Air Pollutant' in 6 NYCRR
200.1(bq) is not consistent with the definition in 40 CFR 70.2 since it
fails to include pollutants regulated under section 112(r) of the Act.
Part 70 includes in the definition of Regulated Air Pollutant ``any
pollutant subject to a standard promulgated under section 112 or other
requirements established under section 112 of the Act, including
sections 112(g), (j), and (r) of the Act * * *''. New York's definition
of regulated air pollutant only includes hazardous air pollutants which
New York defines by providing a list of the 112(b) pollutants. In order
to receive full approval, New York must include in the definition not
only hazardous air pollutants but also pollutants regulated under
section 112(r) of the Act. As a note, the August 31, 1995 revisions to
part 70 proposed to eliminate 112(r) pollutants from the definition of
regulated air pollutant. Therefore, if the revisions to part 70 are
promulgated as proposed prior to the expiration of EPA's interim
approval of New York's program, New York may not need to address this
issue in order to receive full approval.
ii. Under the reporting requirements of 6 NYCRR 201-6.5(c)(3)(ii),
New York provides that a permittee can seek to have a violation excused
as provided in 201-1.4 if such violations are reported as required in
201-1.4(b). [Note: Although 201-1.4 is part of the state regulation
pending approval into the State Implementation Plan (SIP), similar
provisions are already part of the currently-approved SIP at 201.5.
Part 201-1.4 is not part of the Title V regulation.] The language in
201-1.4 that provides the DEC Commissioner
[[Page 39621]]
discretion to excuse violations of any applicable emission standard for
necessary scheduled equipment maintenance, start-up/shutdown
conditions, malfunctions, and upsets if such violations are unavoidable
and the permittee meets certain conditions and reporting requirements
only applies to SIP requirements or State-only requirements. This
provision does not extend to other Federal requirements such as NSPS,
NESHAPs or PSD/NSR (although some Federal requirements, such as some
NSPS rules, provide for an affirmative defense). In order to receive
full approval, New York must add a sentence to 6 NYCRR 201-
6.5(c)(3)(ii) which clarifies that the discretion to excuse a violation
under 201-1.4 will not extend to Federal requirements unless the
specific Federal requirement provides for the affirmative defense
during start-ups, shutdowns, malfunctions, or upsets.
iii. 40 CFR 70.6 provides that permits can include alternative
emission limits, equivalent to those contained in the SIP, as long as
the SIP allows for alternative emission limits to be made through the
permit issuance, renewal or significant modification process. However,
New York's language as found in 6 NYCRR 201-6.5(a)(1)(ii) is overly
broad in that it allows DEC to provide for an alternative emission
limit through the part 70 permit issuance, renewal or significant
modification process at any time, regardless of whether such an
alternative emission limit is allowed for in a particular regulation
approved into the SIP. New York's rule also fails to restrict such
alternative emission limits to only those limits that are equivalent to
the limits in the SIP. Therefore, this would allow DEC to issue permits
with alternative emission limits regardless of whether such limits were
determined to be ``equivalent''. The intent of part 70 is to only grant
alternative emission limits if allowed for in a State rule that
provides criteria for determining equivalency and if that rule has been
approved by EPA into the SIP. Furthermore, New York frequently refers
to variances in its rules and these variances are not equivalent
emissions. When the state proposes to approve such variances, EPA
generally identifies these as requiring SIP revisions (e.g., they
cannot be handled through permit revision procedures until first
approved as a source-specific SIP revision (see Table in 40 CFR
52.1679)). In order to receive full approval, New York must change this
provision so that it is equivalent to 40 CFR 70.6(a)(1)(iii), in that
permits will only include alternative emission limitations if provided
for in the SIP and if the alternative emission limit is determined to
be equivalent to the limit contained in the SIP.
iv. New York's regulation does not provide for one of the three
elements defined to provide operational flexibility under section
502(b)(10) of the Act. 40 CFR 70.2 defines ``section 502(b)(10)
changes'' as changes that contravene an express permit term as long as
such changes would not violate applicable requirements or contravene
federally enforceable permit terms and conditions that are monitoring,
recordkeeping, reporting, or compliance certification requirements.
Because 40 CFR 70.4(b)(12)(i) requires that State part 70 programs
allow for such flexibility, New York must add to its program this type
of flexibility in order to receive full program approval. However, the
August 29, 1994 proposal to revise part 70 would remove the definition
of ``section 502(b)(10) changes'' and requests comment on narrowing the
types of changes eligible under section 502(b)(10) to emissions trading
and not to changes that contravene a permit condition. Therefore, if
the revisions to part 70 are promulgated as proposed prior to the
expiration of EPA's interim approval of New York's program, New York
may not need to address this issue in order to receive full program
approval.
v. New York's definition of ``major source'' at 6 NYCRR 201-
2(b)(21) is not consistent with the definition in 40 CFR 70.2. In 40
CFR 70.2, the last category in the list of 27 categories of stationary
sources in which fugitive emissions must be included to determine if a
source is subject to Title V includes ``* * * all other stationary
source categories regulated by a standard promulgated under section 111
or 112 of the Act, but only with respect to those air pollutants that
have been regulated for that category.'' New York's rule limits this
last provision to source categories for which EPA has completed a
rulemaking under 302(j) of the Act. Therefore, New York's rule would
only require fugitives to be included in determining applicability for
sources in categories subject to a New Source Performance Standard
established prior to August 7, 1980. Because New York's rule is less
stringent than the current part 70 rule which requires all NSPS sources
to include fugitives for those air pollutants that have been regulated
for that category, New York needs to revise its definition of major
source to be consistent with the definition in part 70. However, as a
note, revisions to part 70 were proposed on August 29, 1994 and August
31, 1995 which would change the last category of sources in which
fugitives must be included in determining applicability to only those
source categories in which the Administrator has made an affirmative
decision under section 302(j) of the Act. Therefore, if part 70 is
promulgated as proposed prior to the expiration of EPA's interim
approval of New York's program, New York may not need to address this
issue in order to receive full program approval.
vi. 6 NYCRR 201-6.5(f)(3) on emissions trading under the SIP does
not include the gatekeeper of 40 CFR 70.4(b)(12) which states that
changes do not need to undergo a permit revision as long as the changes
are not modifications under any provision of Title I of the Act. 6
NYCRR 201-6.5(f)(4) on emissions trading under a cap does not include
the two gatekeepers of 40 CFR 70.4(b)(12) which state that changes do
not need to undergo a permit revision as long as the changes are not
modifications under any provision of Title I of the Act and the changes
do not exceed the emissions allowable under the permit. While New
York's enabling legislation includes these gatekeepers under ECL
Sec. 19-0311(p), EPA believes that the gatekeepers should also be in
the regulations, because it will be the regulations that sources will
be referencing to submit applications and to comply with New York's
operating permits program. Therefore, in order for New York to receive
full approval, the gatekeepers in 40 CFR 70.4(b)(12) must be added to
New York's Part 201 rule.
vii. 40 CFR 70.7(e)(2)(i)(B) states that minor permit modification
procedures may be used for permit modifications involving the use of
economic incentives, marketable permits, emissions trading, and other
similar approaches ``to the extent that such minor permit modification
procedures are explicitly provided for in an applicable implementation
plan or in applicable requirements promulgated by EPA''. 6 NYCRR 201-
6.7(c)(2), which provides for use of minor modification procedures for
permit modifications involving the use of economic incentives and
marketable permits, does not include the language quoted above. In
order to receive full program approval, New York must revise its rule
to provide that minor modification procedures can only be used for
these types of changes if explicitly provided for in the underlying SIP
or EPA rule. However, as a note, EPA is revising the permit revision
procedures in part 70. Therefore, if part 70 is promulgated in such a
way that this is no longer an issue before the expiration of EPA's
[[Page 39622]]
interim approval of New York's program, New York may not need to
address this issue in order to receive full program approval.
viii. 40 CFR 70.4(b)(3)(xii) requires that petitions for judicial
review be filed no later than 90 days after the final permit action, or
such shorter time as the State shall designate. While New York's law
allows DEC to adopt a 90 day statute of limitations for judicial review
of final permit actions, DEC prefers to retain the four month statute
of limitations as provided in Article 78 of the New York Civil Practice
Law and Rules. However, in order for New York to be consistent with
part 70 and receive full approval, New York must adopt a 90 day statute
of limitations through rulemaking. As a note, the August 29, 1994
revisions to part 70 propose to extend the filing date of requesting
judicial review from 90 days to 125 days. Therefore, if part 70 is
promulgated as proposed prior to 6 months before the expiration of
EPA's interim approval of New York's program, New York may not need to
address this issue in order to receive full program approval.
2. Federal oversight and sanctions. 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 1-year time period for
submittal of permit applications by subject sources begins upon EPA's
granting of interim approval, as does the 3-year time period for
processing the initial permit applications.
Following final interim approval, if New York fails to submit a
complete corrective program for full approval by the date six months
before expiration of the interim approval, EPA would start an 18-month
clock for mandatory sanctions. If New York then fails to submit a
corrective program that EPA finds complete before the expiration of
that 18-month period, EPA is required to apply one of the two sanctions
listed in section 179(b) of the Act, and, once applied, the sanction
will remain in effect until EPA determines that New York has corrected
the deficiency by submitting a complete corrective program. Moreover,
if the Administrator finds a lack of good faith on the part of New
York, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determines
that New York had come into compliance. In any case, if, six months
after application of the first sanction, New York still has not
submitted a corrective program that EPA finds complete, the second
sanction will be applied.
If, following final interim approval, EPA disapproves New York's
complete corrective program for full approval, EPA will be required to
apply one of the section 179(b) sanctions on the date 18-months after
the effective date of the disapproval, unless prior to that date New
York has submitted a revised program and EPA has determined that it
corrected the deficiencies that prompted the disapproval. Moreover, if
the Administrator finds a lack of good faith on the part of New York,
both sanctions under section 179(b) shall apply after the expiration of
the 18-month period until the Administrator determines that New York
had come into compliance. In all cases, if, six months after EPA
applies the first sanction, New York has not submitted a revised
program that EPA has determined corrected the deficiencies that
prompted disapproval, a second sanction is required.
In addition to the above, discretionary sanctions may be applied
where warranted any time after the expiration of an interim approval
period if New York has not timely submitted a complete corrective
program or EPA has disapproved a corrective program submittal.
Moreover, if EPA has not granted full approval to a New York program by
the expiration of an interim approval, EPA must promulgate, administer
and enforce a Federal permits program for New York upon interim
approval expiration.
3. Other actions. Requirements for approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) approval requirements 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. Therefore, the EPA is also proposing to grant approval
under section 112(l)(5) and 40 CFR 63.91 of the State's program for
receiving delegation of section 112 standards that are unchanged from
Federal standards as promulgated for both part 70 and non-part 70
sources. In addition, EPA is also delegating to New York all existing
section 111 standards.
The scope of the New York part 70 program approved in this notice
applies to all part 70 sources (as defined in the approved program)
within the State of New York, except any sources of air pollution over
which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, and
55815-55818 (November 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 Act; see also 59 FR 43956, and
43962 (August 25, 1994); and 58 FR 54364 (October 21, 1993).
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 located in New York and at the
DEC office in Albany. 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 rulemaking. 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 August 29, 1996.
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 Act
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 annual
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
[[Page 39623]]
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 proposed approval action being
promulgated today does not include a federal mandate that may result in
annual 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 pre-existing requirements under State or local
law, and imposes no new federal 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: July 18, 1996.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 96-19325 Filed 7-29-96; 8:45 am]
BILLING CODE 6560-50-P
