[Federal Register Volume 61, Number 217 (Thursday, November 7, 1996)]
[Rules and Regulations]
[Pages 57589-57594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28539]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NY001; FRL-5646-7]
Clean Air Act Final Interim Approval of Operating Permits
Program; New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating final interim approval of the
operating permits program that the State of New York (NY) submitted in
accordance with Title V of the Clean Air Act (the Act) and its
implementing regulations codified at Part 70 of Title 40 of the Code of
Federal Regulations (40 CFR Part 70). This approved interim program
allows NY to issue operating permits to all major stationary sources,
and to certain other sources, for a period of two years, at which time
the interim program must be replaced by a fully approved program.
EFFECTIVE DATE: This interim program will be effective December 9,
1996.
ADDRESSES: Copies of NY's submittal and other supporting information
used in developing the final interim approval as well as the Technical
Support Document are available for inspection, during normal business
hours, at the following location: U.S. Environmental Protection Agency,
Region 2 Office, 290 Broadway, 25th Floor, New York, NY 10007-1866;
Attention: Steven C. Riva.
FOR FURTHER INFORMATION CONTACT: Gerald P. DeGaetano, Permitting
Section, Air Programs Branch, Division of Environmental Planning and
Protection, at the above EPA Office, or at telephone number (212) 637-
4020.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
The Act and its implementing regulations at 40 CFR Part 70 require
that States develop and submit operating permit programs to the EPA by
November 15, 1993, and that the EPA act to approve or disapprove each
program within one year after receiving a complete submittal. The EPA
reviews State programs pursuant to Section 502 of the Act and the Part
70 regulations, which together outline the criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of 40 CFR Part 70, EPA may grant the program interim
approval for a period of up to two years. If a State does not have an
approved program by the end of an interim program, EPA must establish
and implement a federal operating permits program for that State.
On July 30, 1996, EPA proposed interim approval of the operating
permits program submitted by NY (see 61 FR 39617). In that Federal
Register document, EPA indicated that NY was in the process of re-
proposing Appendix B of Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York (6 NYCRR) Part 201
(Appendix B is entitled, ``Transition Plan Application Schedule''), and
that such would be finalized prior to EPA's final interim approval of
the NY program. Subsequently, Appendix B was adopted by NY on September
11, 1996, and became effective 30-days from that date, on October 11,
1996.
During the 30-day public comment period that ended on August 29,
1996, two comment letters were received on the aforementioned EPA
proposal to grant NY interim program approval. One comment letter
supported the State program, and the other letter provided a number of
comments and concerns and asked that these be addressed. A response to
all of the pertinent comments received is included in Section II.B. of
this notice. Based upon EPA's review, none of the comments received
alters EPA's decision to approve the NY program. Therefore, in this
notice, the EPA is taking final action to promulgate interim approval
of the NY Operating Permits Program.
II. Final Action and Implications
A. Analysis of State Submission
On July 30, 1996, the EPA proposed interim approval of NY's Title V
Operating Permits Program. The program elements discussed in the
proposed notice are unchanged, except for Appendix B of 6 NYCRR Part
201, discussed above. EPA's position remains unchanged, in that the NY
program substantially meets the requirements of 40 CFR Part 70.
B. Response to Public Comments
1. Comments From the Society of Plastics Industry, Inc.
In this letter, dated August 27, 1996, the commenter supports NY's
efforts to implement an operating permits program. In addition, the
commenter requested that EPA finalize its August 1994 and August 1995
proposals (to 40 CFR Part 70), to allow the State to quickly receive
final program approval.
Response. In the July 30, 1996 Federal Register Notice, EPA listed
eight items that NY must correct in order for EPA to grant full (rather
than interim) program approval to the State. Under 5 of these 8 items,
it was noted that EPA had proposed revisions to 40 CFR Part 70 on
August 29, 1994 and August 31, 1995 which, if such revisions were to be
promulgated as proposed, would eliminate these 5 issues from being a
barrier to full program approval for NY. That is, NY would not have to
revise its regulations for these 5 issues to receive full program
approval. However, NY will still be required to revise its regulations
with respect to the other 3 issues (refer to Section II.C., below, for
additional discussion on this matter).
EPA is required to grant or deny Title V program approval based on
current requirements. At present, these requirements are those listed
in the 40 CFR Part 70 regulations promulgated on July 21, 1992. Unless
and until these regulations are revised, the July 21, 1992 version will
be applied to determine a State program's approvability. Also, if
future revisions to 40 CFR Part 70 do not address the ``Interim Program
Approval'' items noted in EPA's July 30, 1996 Federal Register Notice,
then New York State must correct those items as described therein, in
order to be granted full program approval.
2. Comments From the Consumer Policy Institute
This letter, dated August 29, 1996, provided a number of comments
on
[[Page 57590]]
EPA's proposed interim operating permits program approval to NY (this
included specific comments to EPA Region 2 on its proposed approval of
NY's program, and an attachment with comments that were previously
provided to NY during the State's public comment period relative to
revisions to regulations codified at 6 NYCRR Parts 200, 201 and 621).
In today's Notice, EPA will address each of the comments made by the
Consumer Policy Institute in its August 29th submittal that pertains to
the subject Title V program. However, a number of other comments in
this letter and attachment relate solely to how changes to NY's
permitting rules impact the State Implementation Plan (SIP). Approval
of the Title V permitting program does not revise any SIP requirements.
Therefore, these SIP-related comments will not be addressed in this
Notice, but will be deferred until such time as EPA processes the
State's rule changes as a SIP revision.
a. Public Review. The commenter states that the public never
received the permit application forms or the compliance tracking and
enforcement program description during the comment period, and that a
chart of SIP-applicable requirements (for use by Title V-affected
sources to ensure that applications list all SIP-applicable
requirements) was still being prepared by NY.
Response. As was noted in the July 30, 1996 Federal Register, which
commenced the public comment period, copies of the State's Title V
operating permits program submittal and other supporting information
are available for inspection during normal business hours at the EPA
Region 2 Office and the New York State Department of Environmental
Conservation (NYSDEC) Central Office, located in Albany, New York. This
available documentation included both the permit application forms, as
well as the compliance and enforcement program description. In
addition, the July 30th Notice listed two EPA Region 2 representatives
that could be contacted for additional information. During the 30-day
public comment period, Region 2 personnel did not receive any calls
from the public requesting to visit the EPA Office to review this
documentation, or requesting that copies be provided.
With respect to the compilation of a chart of SIP-applicable
requirements, while the EPA agrees that such a document will be a
valuable guide for applicants, preparation of the subject chart is not
a criterion of approval for a State Title V program. Therefore, lack of
a final SIP chart will not affect EPA's determination on final program
approval.
b. Fee Demonstration. The commenter states that the purpose of the
fee demonstration is to show that adequate resources will be available
to carry out the Title V program. However, the NYSDEC (the permitting
authority in NY) and, specifically, its Air Division, has lost large
numbers of employees. EPA was questioned as to whether the State's fee
demonstration identifies the resources for program implementation, and
whether fees are being spent where intended, or are being funneled
elsewhere. It was requested that State staff that will work on this
program be identified by name and technical qualifications.
Response. Based upon the EPA's review of NY's fee demonstration, it
has been determined that the State has the authority to collect
sufficient fees to implement its Title V program. As noted in the July
30, 1996 Federal Register Notice, NY's fee demonstration shows that the
State will collect the equivalent of EPA's ``presumptive minimum'' fee
amount. As such, as delineated at 40 CFR Sec. 70.9, a detailed analysis
showing staffing and qualifications was not required. EPA has
determined that the fees collected will enable NY to adequately
implement the operating permits program. This will be certified through
EPA's ongoing program audit of permitting activities, and the review by
EPA of State-prepared, annual program cost documentation.
c. Definition of Source. The commenter states that NY does not
define ``source'' as that term is defined in the Act. Instead, the
State regulates by `emission-point,' and this difference between the
State regulations and 40 CFR Part 70 would allow sources to avoid Title
V permitting via emissions ``capping'' of one or more emission units.
Response. First, it must be noted that NY's definition of source is
consistent with that of the Act (see 6 NYCRR Part 201-2(b)(21)). In
addition, the rules promulgated at 6 NYCRR Part 201-6 are consistent
with the requirements of 40 CFR Part 70, in that all major stationary
sources of air pollution will need to apply for and obtain a Title V
operating permit. However, major sources may wish to restrict their
operations by accepting federally enforceable permit restrictions, so
as to escape from the purview of Title V, and may do so by establishing
such federally enforceable limits in accordance with the State rules
promulgated at 6 NYCRR Part 201-7 (that is, such sources would become
``synthetic'' minor sources). These procedures are acceptable in
accordance with the operating permit program requirements delineated at
40 CFR Part 70 and, as such, do not affect EPA's determination to grant
NY interim program approval.
d. Permitting of Dry Cleaners. The commenter asserts that New York
should have made a provision for permitting non-major area source dry
cleaners.
Response. With respect to non-major sources regulated under section
112 of the Act after July 21, 1992, 40 CFR Part 70 provides that
permitting requirements will be determined at the time that the new
standard is promulgated. However, for dry cleaners and numerous other
non-major sources regulated under section 112, EPA promulgated
regulations deferring the Title V permitting of such sources until
December, 1999 (see 61 FR 27785, dated June 3, 1996). Prior to that
point in time, EPA will determine whether permanent exemptions to Title
V permitting should be established.
e. Two-Phased Application. The commenter asserts that use of a two-
phased application system by NYSDEC during its 3-year transition period
will impact the public's right to review complete applications and
participate in enforcement activities. In addition, the commenter
states that the plan provides for permit shield protection based only
on Phase I submittals.
Response. A two-phased application system, such as the one
established by NY, is discussed in EPA's first ``White Paper,'' dated
July 10, 1995. This guidance document provides that permitting
authorities have considerable flexibility in initially processing the
large amount of applications over a 3-year period, and determining
application completeness pursuant to 40 CFR Sec. 70.5(c). It further
discusses the need to balance the receipt of information to support
timely permit issuance versus the workload associated with managing and
updating the initially submitted information. The White Paper allows
that permitting authorities may implement a two-phased permit
application process during the transition period, first providing for
submittal of an administratively complete application and followed, at
the appropriate time, with a complete application that will ensure
issuance of a draft Title V permit. Furthermore, this EPA guidance
document states that permitting authorities must award the application
shield if the source submits a timely application pursuant to 40 CFR
Sec. 70.5(c).
The Phase I application requirement developed by NY for use during
its
[[Page 57591]]
transition period meets the minimum information submittal requirements
delineated at 40 CFR Part 70 and EPA's White Paper. It should be noted,
however, that not all Title V-affected sources will need to file a
Phase I application. If a source is required, pursuant to NY's
transition plan, to apply during the first year after program approval,
then only the Phase II application need be submitted. The Phase I
application is only to be used by those sources whose permit
applications are due subsequent to the first year after program
approval.
Finally, it should be noted that an application shield (see 40 CFR
Secs. 70.5(a)(2) and 70.7(b)) should not be confused with a permit
shield (see 40 CFR Sec. 70.6(f)). An application shield provides, in
general, that if an affected source submits a timely and complete Title
V application, then that source's failure to have a valid permit is not
a violation of the operating permits program. A permit shield provides,
in general, that a source's compliance with the conditions of its
permit constitutes compliance with any applicable requirements as of
the date of permit issuance.
f. Professional Engineers Certification. The commenter believes
that NYSDEC should retain the former requirement that permit
application submittals be certified by a licensed professional
engineer, in addition to the requirement of certification by a
responsible official, to ensure the quality and accuracy of the
information submitted.
Response. The requirement for a professional engineer's
certification is discretionary on the part of the permitting authority.
Lack of such a requirement in a Title V program is not an issue
relating to program approval.
g. Incorporation of ``State-only'' Requirements. The commenter
opposes a provision in 6 NYCRR Part 201-6.6(a)(2), which allows a
source to delay incorporating State-only requirements into its Title V
permit until the expiration of an existing State permit held by the
source, if the State permit contains solely State-only requirements.
Response. This section of NY's rules does not affect the
requirement of 40 CFR Part 70 that a Title V operating permit must
include all ``applicable requirements'' (State-only requirements are
not ``applicable requirements'' and, as such, do not fall under the
purview of EPA review of Title V program approvability). Because EPA
cannot base its review for approvability of State program submittals on
criteria not required by Part 70, this comment will not change EPA's
decision to approve the NY program on an interim basis.
h. Special Treatment Under 201-6.3(c). The commenter poses a
question as to which sources are being afforded ``special treatment,''
as defined at 6 NYCRR Part 201-6.3(c), during the transition period,
and what is the meaning of, and justification for, such treatment.
[Specifically, this provision states that the 18-month timeframe for
permit issuance does not apply to Title V applications that are
afforded special expedited review during the transition period.]
Response. The purpose of this NY State provision is to
differentiate between initial permit issuance (i.e., permits issued
during the 3-year transition period) and all permits issued thereafter.
In accordance with the requirements of Title V, all permits must be
issued within 18-months of receipt of a complete application (see 40
CFR Sec. 70.7(a)(2)), with the exception of those permits issued during
the transition period. During this transition period, Part 70 provides
for initial permit issuance over a 3-year period from the date the
program becomes effective, with approximately one third of the total
number of permits issued each year (see 40 CFR Sec. 70.4(b)(11)). This
reflects the ``special treatment'' that NY is affording sources during
the transition period; as such, this State provision conforms to the
requirements of Title V and 40 CFR Part 70.
i. Public Review When NY is an ``Affected State''. The commenter
states that the NYSDEC has not made any plans to notify the affected
public when NY receives notice of a permitting action from an adjacent
State. The commenter further suggests that, in these situations, NY
request that the adjacent State publish a notice of the permitting
action in a widely circulated newspaper.
Response. Title V and 40 CFR Part 70 only require that permitting
authorities notify other affected States of permitting actions.
Although there is no requirement to provide public notification in
another State, oftentimes, the public notice for the permitting action
being processed in the adjacent State will be circulated over the State
boundaries into the ``affected'' State (i.e., newspaper circulation, if
that is the method used, usually crosses State lines). It should also
be noted that, in accordance with the provisions of 40 CFR 70.7(h)(1),
anyone can request to be placed on the mailing list (i.e., a list of
``interested persons'') developed for the operating permits program by
the permitting authority, and such a request can be made to any
permitting authority. In any case, the public notification and
participation procedures implemented under NY's program meet the
requirements of Title V.
j. Exempt and Trivial Activities. The commenter requested that
NYSDEC provide scientific analysis that supports the identification in
6 NYCRR Part 201-3 of exempt and trivial activities. The commenter
further notes that these regulations include exemptions entirely new to
Part 201, and activities not provided for in EPA's ``White Paper.''
Response. Exempt and trivial activities are allowed for under the
Title V program, and are expounded upon in EPA's first White Paper.
During its review of the NY program, EPA reviewed the State's list of
exempt and trivial activities and determined that the lists comply with
the requirements and general intent of the provisions of the Title V
program. This list can only be revised by NY through the rulemaking
process. With respect to the listing of trivial activities provided in
EPA's White Paper, it was noted therein that this was not an all-
inclusive, comprehensive list, but a ``starting-point'' that permitting
authorities can supplement in their own programs. In addition, there
exists a ``gatekeeper'' for these listed activities in NY's rule that
precludes any of the activities listed from being considered as exempt
or trivial if such activities are subject to an applicable requirement.
EPA's review, together with this gatekeeper, are sufficient to
determine that the NY program is approvable with respect to this issue.
k. Insignificant Emission Levels. The commenter requested that
NYSDEC provide scientific analysis that supports the listing of
insignificant emission levels at 6 NYCRR Part 201-6.3(d)(7).
Response. The insignificant emission levels established by NY at 6
NYCRR Part 201-6.3(d)(7) conform to National EPA guidance on
establishing such levels and, as such, are approvable.
l. Operational Flexibility. The commenter states that NYSDEC
should, under the operational flexibility provisions of 6 NYCRR Part
201-6.5, prohibit the trading of toxic air pollutants, or trading that
would directly effect exposing employees to higher concentrations of a
particular pollutant.
Response. Operational flexibility, such as the flexibility
delineated under NY's program at 6 NYCRR Parts 201-6.5(f) (3) and (4),
is provided for by the Title V program. Specifically, 40 CFR
Sec. 70.4(b)(12)(iii), which corresponds to NY's regulations at 6 NYCRR
Part 201-6.5(f)(4), allows for the trading of any regulated pollutant,
as long as no applicable requirements are
[[Page 57592]]
contravened. The NY program includes such a gatekeeper. Trading of
toxic air pollutants cannot normally be achieved via the provision
listed at 6 NYCRR Part 201-6.5(f)(3), because this provision only
allows trades to occur if such trades are allowed by the SIP.
m. Operational Flexibility Protocol. The commenter requested that
NYSDEC drop the provision at 6 NYCRR Part 201-6.5(f)(2), which allows
an applicant to propose incorporation of a protocol to evaluate changes
for compliance with applicable requirements. Descriptions or
definitions relating to such protocols or their approval procedures are
not contained in Part 201.
Response. This provision in NY's rule is an additional provision
that the State has incorporated into its program. It is not
specifically addressed in 40 CFR Part 70, nor is it precluded by those
federal regulations. NY would have to set the procedures for approval
of such protocols as part of the program implementation.
C. Final Action
The EPA is promulgating interim approval of the operating permits
program submitted by NY on November 12, 1993, as supplemented on June
17, 1996, and June 27, 1996. Among other things, the State has
demonstrated that the program substantially meets the minimum
requirements for an interim State operating permits program as
specified in 40 CFR Part 70, and as discussed in EPA's Guidance
entitled ``Interim Title V Program Approvals'' issued by John S. Seitz,
Director, Office of Air Quality Planning and Standards on August 2,
1993. This interim approval, which may not be renewed, extends until
December 7, 1998. Under the approved interim operating permits program,
NY may issue operating permits pursuant to Title V of the Act to all
major stationary sources, and to certain other sources, for the
duration of this approval. During this interim approval period, the
State is protected from sanctions, and EPA is not obligated to
promulgate, administer and enforce a federal operating permits program
in NY. Permits issued under a program with interim approval have full
standing with respect to Part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing initial permit applications. In order to ensure that a
fully approved program will be in place by the expiration date of the
interim approval, NY must submit a modified program to EPA by June 8,
1998 that addresses the following deficiencies (for additional
discussion of these deficiencies, refer to the July 30, 1996 Federal
Register document, 61 FR 39617):
1. Regulated Air Pollutant
NY's definition of `Regulated Air Pollutant' in 6 NYCRR Part
200.1(bq) must be changed to be made consistent with the definition in
40 CFR 70.2 (unless, as described in the above-cited Federal Register
document, the Part 70 regulations are revised in a way that would make
this NY provision acceptable, prior to the time that NY State's full
program submittal is due). The definition in 40 CFR part 70 currently
includes: ``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 * * *''. NY's
definition of regulated air pollutant only includes hazardous air
pollutants, which the State defines by providing a list of the 112(b)
pollutants. Therefore, NY must include in its definition not only the
section 112(b) hazardous air pollutants, but also pollutants regulated
under section 112(r) of the Act.
2. Enforcement Discretion
NY must revise its rules at 6 NYCRR 201-6.5(c)(3)(ii) to clarify
that the discretion to excuse a violation under 6 NYCRR Part 201-1.4
will not extend to federal requirements, unless the specific federal
requirement provides for affirmative defense during start-ups,
shutdowns, malfunctions, or upsets.
3. Alternative Emission Limits
NY must change its provision at 6 NYCRR Part 201-6.5(a)(1)(ii), so
that it is equivalent to 40 CFR 70.6(a)(1)(iii). That is, the State
provision should be revised to require 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.
4. Operational Flexibility
NY must add to its program the operational flexibility provisions
provided for by section 502(b)(10) of the Act. However, as discussed in
the above-cited Federal Register document, NY may not need to make such
changes if revisions to 40 CFR Part 70 are promulgated prior to NY's
full program submittal, and such Part 70 revisions would not require
the State to provide for this type of operational flexibility.
5. Definition of Major Source
NY must revise its definition of major source to be consistent with
the definition in 40 CFR part 70, as it relates to accounting for
fugitive emissions to determine the applicability of section 111
sources. As noted in the July 30, 1996 Federal Register document, this
NY definition need not be revised if the Part 70 regulations are
changed in a way that would make this NY provision acceptable, and such
change occurs prior to the time that NY State's full program submittal
is due.
6. Emissions Trading
NY must include the two gatekeepers listed in 40 CFR 70.4(b)(12) in
its regulations at 6 NYCRR Parts 201-6.5 (f)(3) and (f)(4).
Specifically, NY must add to its rule at 6 NYCRR Part 201-6.5(f)(3) the
gatekeeper which states that changes under this provision 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. In addition,
NY must supplement its rule at 6 NYCRR Part 201-6.5(f)(4) by adding 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.
7. Minor Permit Modification Procedures
New York must revise its rule at 6 NYCRR Part 201-6.7(c)(2) to
provide that minor modification procedures can only 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'' (the language in quotations must be
added). This change must be made unless revisions to 40 CFR part 70 are
promulgated prior to NY's full program submittal, and such revisions
would exclude this issue from affecting full program approval.
8. Petitions for Judicial Review
In order for NY to be consistent with 40 CFR part 70 and receive
full program approval, the State must adopt a 90 day statute of
limitations, through rulemaking, for judicial review of final permit
actions, rather than its current 120-day review period. As discussed in
the July 30, 1996 Federal Register document, this change may not be
[[Page 57593]]
required if the regulations at 40 CFR Part 70 are revised in a way that
would make this NY provision acceptable, and such a revision would
occur prior to the time that NY State's full program submittal is due.
If NY fails to submit a complete corrective program for full
approval by June 8, 1998, EPA will start an 18-month clock for
mandatory sanctions. If the State then fails to submit a complete
corrective program before the expiration of that 18-month period, EPA
will apply sanctions as required by section 502(d)(2) of the Act, which
will remain in effect until EPA determines that NY has corrected the
deficiencies by submitting a complete corrective program.
If EPA disapproves NY's complete corrective program, EPA will apply
sanctions as required by Section 502(d)(2) on the date 18 months after
the effective date of the disapproval unless, prior to that date, NY
has submitted a revised program and EPA has determined that it
corrected the deficiencies that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if NY has
not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the NY program by the expiration of this
interim approval, EPA must promulgate, administer and enforce a federal
operating permits program for the State upon interim approval
expiration.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of Section 112 standards as promulgated by the 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, an
expeditious compliance schedule, and adequate enforcement ability,
which are also requirements under 40 CFR part 70. In a letter dated
June 18, 1996, NY requested delegation through section 112(l) of all
existing section 112 standards for both Part 70 sources and those not
subject to the Part 70 requirements and infrastructure programs, with
the following exceptions. NY does not intend to take delegation of
either the section 112(r) program or the National Emission Standards
for Hazardous Air Pollutants for Asbestos, Standards for Demolition and
Renovation; however, the State will still implement the appropriate
permit conditions relevant to the risk management program in part 70
permits. With respect to future 112 standards, the State intends to
accept delegation of most, if not all, of the standards. This will be
accomplished either through incorporation by reference of the federal
regulations into State regulations, as expeditiously as possible, or
via case-by-case program substitution. In the June 18, 1996 letter, NY
demonstrated that it has sufficient legal authorities, adequate
resources, and adequate enforcement ability for implementation of
Section 112 of the Act for all Part 70 sources. Therefore, the EPA is
also promulgating interim approval under Section 112(l)(5) and 40 CFR
63.91 to grant NY approval for its program mechanism for receiving
delegation of all existing and future Section 112(d) standards for all
Part 70 sources, and Section 112 infrastructure programs that are
unchanged from federal rules as promulgated.
In its June 18, 1996 letter, NY also requested 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. While EPA
proposed to approve this request in the July 30, 1996 Federal Register
document, we are deferring a final decision on this matter until a
later date.
III. Administrative Requirements
A. Docket
Copies of the NY submittal and other information relied upon for
the final interim approval, including the public comments received and
reviewed by EPA on the proposal, are contained in the docket maintained
at the EPA Region 2 Office. The docket is an organized and complete
file of all the information submitted to or otherwise considered by EPA
in the development of this final interim approval. The docket is
available for public inspection at the location listed under the
ADDRESSES section of this document.
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 40 CFR Part 70. Since these operating permits
programs were already adopted at the State level, and today's action
does not introduce any additional requirements that are new to the
State program already in effect, no significant impact on a substantial
number of small entities is expected to occur as a result of today's
action. Therefore, I certify that this rule will not have a significant
impact on a substantial number of small entities.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate,
or to the private sector, of $100 million or more. Under Section 205,
EPA must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 of the Unfunded Mandates Act
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated annual
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.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
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.
[[Page 57594]]
Dated: October 22, 1996.
William J. Muszynski,
Acting Regional Administrator.
Part 70, title 40 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 the entry for New
York in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permit Programs
* * * * *
New York
(a) The New York State Department of Environmental Conservation
submitted an operating permits program on November 12, 1993,
supplemented on June 17, 1996 and June 27, 1996; interim program
approval effective on May 7, 1999; interim program approval expires
December 7, 1998.
(b) [Reserved]
* * * * *
[FR Doc. 96-28539 Filed 11-6-96; 8:45 am]
BILLING CODE 6560-50-P
