[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