[Federal Register Volume 64, Number 85 (Tuesday, May 4, 1999)]
[Rules and Regulations]
[Pages 23777-23779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10853]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NJ002; FRL-6333-8]


Approval of State Operating Permit, Rule Revision; New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final approval.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action on revisions to the New Jersey operating permit rule 
(N.J.A.C. 7:27-22.4 and 22.5) as submitted by the State of New Jersey 
to fulfill the requirements of Title V of the Clean Air Act. The 
revisions extend the deadlines for the last two waves of permit 
applications until February 4, 1999 and May 4, 1999, if these 
applications are submitted in electronic format.

DATES: This rule is effective on July 6, 1999 without further notice, 
unless EPA receives adverse comment by June 3, 1999. If EPA receives 
such comment, EPA will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to: 
Raymond Werner, Acting Chief, Air Programs Branch, Environmental 
Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, 
New York 10007-1866.
    Copies of the State submittal are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
New Jersey Department of Environmental Protection, Air Quality 
Permitting Program, Bureau of Operating Permits, 401 E. State Street, 
Trenton, New Jersey 08625-0027.

FOR FURTHER INFORMATION CONTACT: Suilin Chan, Air Programs Branch, U.S. 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, NY 10007-1866, (212) 637-4019.

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to title V of the Clean Air Act (``the Act'') and its 
implementing regulations codified at 40 CFR part 70, EPA granted source 
category-limited interim approval to the New Jersey operating permit 
program. See, 61 FR 24715 (May 16, 1996). New Jersey's category-limited 
interim program became effective on June 17, 1996 and was scheduled to 
expire on June 17, 1998, two years after the approval. However, EPA has 
recently granted extensions to all interim programs, including that of 
NJ's, to June 1, 2000.
    The Act states that:

``any person required to have a permit shall, not later than 12 
months after the date on which the source becomes subject to a 
permit program approved or promulgated under this title, or such 
earlier date as the permitting authority may establish, submit to 
the permitting authority a compliance plan and an application for a 
permit signed by a responsible official, who shall certify the 
accuracy of the information submitted.'' See, 40 CFR section 70.5.

    New Jersey's operating permit rule contains application submittal 
deadlines established for different source categories. Under the rule, 
applications are submitted to the New Jersey Department of 
Environmental Protection (``NJDEP'') at different times in seven waves 
as determined by the

[[Page 23778]]

source's Standard Industrial Classification (SIC) Code. The first five 
waves of sources are subject to the interim program and the last two 
waves will be subject to the full program. Consistent with the Act and 
40 CFR part 70, all sources subject to the interim program must submit 
their applications by June 17, 1997 (12 months after the program's 
effective date) and those subject to the full program must submit by 
June 17, 1999 (12 months after the anticipated full program approval 
date). Despite two extensions granted to New Jersey for the interim 
program, extending the effectiveness of the interim program to June 1, 
2000, the application submittal deadline for the remaining two waves of 
applications has not changed. See, 63 FR 40053 (July 27, 1998). It 
remains June 17, 1999. It should be noted that New Jersey's original 
application submittal schedule had required all applications to be 
submitted by May 18, 1998, 13 months before the deadline prescribed by 
the Act.

State Submittal

    To encourage electronic submittal of permit applications, the State 
of New Jersey amended its operating permit rule (N.J.A.C. 7:27-22) to 
extend the application submittal due dates for sources required to 
submit their applications during the last two waves of submittals from 
November 15, 1997 to February 4, 1999 and from May 15, 1998 to May 4, 
1999, respectively if the applications were submitted in electronic 
format. Amendments to N.J.A.C. 7:27-22.4 and 22.5 were proposed on June 
2, 1997 and January 20, 1998 and subsequently adopted on October 20, 
1997 and May 4, 1998, respectively. On June 11, 1998, New Jersey 
submitted a copy of the adopted rules and requested that EPA update New 
Jersey's operating permit program to reflect the newly adopted 
amendments. The New Jersey submittal included such information as 
responses to comments and copies of the adoption notices showing that 
the rule adoptions were procedurally correct as required by 40 CFR 
Sec. 70.4(b)(2).

Review of State Submittal

    The extension sought by the NJDEP affects only the last two waves 
of applications. According to New Jersey's operating permit rule, the 
original application submittal (paper or electronic) due dates for the 
last two waves were November 15, 1997 and May 15, 1998, respectively. 
These deadlines still hold for paper submission. However, for those 
sources submitting electronically, the amendment allows additional 
time. The last two waves may submit electronic applications by February 
4, 1999 and May 4, 1999, respectively. Based on New Jersey's interim 
program effective date of June 17, 1996, all applications subjected to 
the interim program and full program must be submitted by June 17, 
1999. Since the amended electronic application submittal deadlines 
still fall within the June 17, 1999 due date as required under section 
503(c) of the Act and part 70.5(a), EPA finds New Jersey's rule/program 
revision approvable.

Conclusion

    EPA has evaluated New Jersey's amended operating permit rule and 
the request to incorporate the changes into the approved interim 
program. EPA has concluded that the amended operating permit rule as 
submitted by New Jersey bears no adverse effect on the implementation 
or enforcement of the source category-limited interim program which was 
originally approved. The New Jersey operating permit program, with the 
current amendment, continues to be in compliance with the requirements 
of the Act and the part 70 regulations as codified at 40 CFR part 70; 
therefore, EPA is approving the amended New Jersey Operating Permit 
Rule. Under this approval, New Jersey may extend the permit application 
submittal due dates for the sixth and seventh waves until February 4, 
1999 and May 4, 1999, respectively.
    The granting of final approval to the amended operating permit rule 
for the State of New Jersey only changes the application submittal due 
dates for certain affected sources. All other aspects of the New Jersey 
Operating Permit Program remain fully operational and enforceable. Any 
source that fails to comply with the amended application submittal 
schedule or any provisions of the approved program may be subject to 
N.J.A.C. 7:27-22.3(ll) as well as section 502(a) of the Act. The 
federal oversight and sanctions provisions of the final interim 
approval as promulgated on May 16, 1996 for the State of New Jersey 
remain in full force irrespective of the granting of final approval to 
the amended operating permit rule.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the State rule revision if adverse comments 
are filed. This rule will be effective on July 6, 1999 without further 
notice unless the Agency receives adverse comments by June 3, 1999. If 
EPA receives adverse comments, EPA will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect. EPA will then address all public comments in a subsequent final 
rule based on the proposed rule. The EPA will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time.

Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the

[[Page 23779]]

environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This final approval is not subject to E.O. 
13045 because it approves a state program implementing a Federal 
regulation, and it is not economically significant under E.O. 12866.

Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statue, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the OMB, in a separately identified section of the preamble 
to the rule, a description of the extent of EPA's prior consultation 
with representatives of affected tribal governments, a summary of the 
nature of their concerns, and a statement supporting the need to issue 
the regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final approval will not have a significant impact on a 
substantial number of small entities because it does not create any new 
requirements but simply allows additional time for the submittal of 
electronic applications from major stationary sources. I certify that 
this action will not have a significant economic impact on a 
substantial number of small entities.

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 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 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 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.

Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 6, 1999. 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 70

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

    Dated: April 19, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.

    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 new paragraph (b) to 
the entry for New Jersey State in alphabetical order to read as 
follows:

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

* * * * *

New Jersey

* * * * *
    (b) The New Jersey State Department of Environmental Protection 
submitted an operating permits program revision request on June 11, 
1998; interim program revision approval effective on July 6, 1999.
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[FR Doc. 99-10853 Filed 5-3-99; 8:45 am]
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