[Federal Register Volume 63, Number 170 (Wednesday, September 2, 1998)]
[Rules and Regulations]
[Pages 46658-46659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23332]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY27-2-181; FRL-6140-3]


Approval and Promulgation of Implementation Plans; Emission Trade 
to Meet Reasonably Available Control Technology for the State of New 
York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is announcing approval of a revision to the New York 
State Implementation Plan for ozone. This revision establishes and 
allows an emission trade between Niagara Mohawk Power Corporation and 
Champion International Corporation which will result in both sources 
meeting the requirements of reasonably available control technology for 
oxides of nitrogen. The intended effect of this action is to approve 
source-specific permit conditions, requiring the sources to trade 
emissions in accordance with requirements of the Clean Air Act, and 
resulting in emission reductions which will help toward attaining the 
national ambient air quality standards for ozone.

EFFECTIVE DATE: This rule will be effective October 2, 1998.

ADDRESSES: Copies of the state submittals and other information are 
available for public inspection during normal business hours, by 
appointment, at the Air Programs Branch, U.S. EPA, Region II Office, 
290 Broadway, 25th Floor, New York, New York, 10007-1866; as well as 
the New York State Department of Environmental Conservation, Division 
of Air Resources, 50 Wolf Road, Albany, New York 12233; and the EPA, 
Air and Radiation Docket and Information Center, Air Docket (6102), 401 
M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Richard Ruvo, Environmental Engineer, 
Air Programs Branch, U.S. EPA, Region II Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866; (212) 637-4014.

SUPPLEMENTARY INFORMATION: On April 9, 1996, New York State submitted 
special permit conditions for two sources to EPA as a source-specific 
revision to the State Implementation Plan (SIP) for ozone. The special 
permit conditions are for the Niagara Mohawk Power Corporation and the 
Champion International Corporation for an emission trade to meet the 
reasonably available control technology for oxides of nitrogen 
(NOx RACT) requirements of New York State's Part 227-2. New 
York supplemented the April 9, 1996 SIP revision with amended special 
permit conditions on February 2, 1998. On May 21, 1998, EPA published 
in the Federal Register (63 FR 27897) a Notice of Proposed Rulemaking 
(NPR) proposing to approve the special permit conditions as a SIP 
revision and providing for a 30-day public comment period. EPA received 
no comments regarding the NPR. For a more detailed discussion of New 
York's SIP submittal and EPA's action, the reader is referred to the 
NPR.

Conclusion

    EPA is approving the source-specific permit conditions which allow 
Niagara Mohawk Power Corporation and Champion International Corporation 
to trade emissions to meet the requirements of NOx RACT. EPA is 
approving these special permit conditions, as submitted by the State of 
New York on April 9, 1996 and supplemented on February 2, 1998, as part 
of the SIP.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not create any new requirements, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities. Moreover, due to the nature of 
the Federal-State relationship under the Clean Air Act, preparation of 
a flexibility analysis would constitute Federal inquiry into the 
economic reasonableness of state action. The Clean Air Act forbids EPA 
to base its actions concerning SIPs on such grounds. Union Electric 
Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Executive Order 13045

    The final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and Safety Risks,'' because 
it is not an ``economically significant'' action under E.O. 12866.

[[Page 46659]]

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 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 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 approval action promulgated 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 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA is not required to submit a rule 
report regarding today's action under section 801 because this is a 
rule of particular applicability. Section 804 exempts from section 801 
the following types of rules: rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. section 
804(3).

Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 2, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: July 30, 1998.
Jeanne M. Fox,
Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

    2. Section 52.1670 is amended by adding new paragraph (c)(94) to 
read as follows:


Sec. 52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (94) A revision to the State Implementation Plan submitted by the 
New York State Department of Environmental Conservation on April 9, 
1996 and supplemented on October 17, 1996 and February 2, 1998 that 
allows Niagara Mohawk Power Corporation and Champion International 
Corporation to trade emissions to meet the requirements of 
NOX RACT.
    (i) Incorporation by reference:
    (A) Permits to Construct and/or Certificates to Operate: The 
following facilities have been issued permits to construct and/or 
certificates to operate by New York State and such permits and/or 
certificates are incorporated for the purpose of establishing an 
emission trade to be consistent with Subpart 227-2:
    (1) Niagara Mohawk Power Corporation's system-wide utility boilers; 
New York special permit conditions and approval letter dated December 
14, 1995.
    (2) Champion International Corporation's two coal-fired boilers, 
Units 1 and 2, Jefferson County; New York special permit conditions and 
approval letter dated December 2, 1997.
    (ii) Additional information:
    (A) Documentation and information to support the emission trade in 
three letters addressed to EPA from the New York State Department of 
Environmental Conservation and dated as follows:
    (1) April 9, 1996 to Mr. Conrad Simon, Director of Air and Waste 
Management Division from Deputy Commissioner David Sterman for a SIP 
revision for Niagara Mohawk Power Corporation and Champion 
International Corporation.
    (2) October 17, 1996 letter to Mr. Ted Gardella, EPA from Mr. 
Patrick Lentlie, supplementing the SIP revision with the special permit 
condition approval letters.
    (3) February 2, 1998 letter to Mr. Ronald Borsellino, Chief of the 
Air Programs Branch from Mr. Patrick Lentlie, supplementing the SIP 
revision with the amended special permit conditions for Champion 
International Corporation.

[FR Doc. 98-23332 Filed 9-1-98; 8:45 am]
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