[Federal Register Volume 66, Number 207 (Thursday, October 25, 2001)]
[Proposed Rules]
[Pages 53966-53969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26927]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 207 / Thursday, October 25, 2001 / 
Proposed Rules  

[[Page 53966]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NY002; FRL-7090-4]


Clean Air Act Proposed Full Approval of Operating Permits 
Program: State of New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes full approval of the operating permits 
program submitted by the State of New York for the purpose of complying 
with Federal requirements for an approvable State program to issue 
operating permits to all major stationary sources and to certain other 
sources.

DATES: Comments on this proposed action must be received in writing by 
November 26, 2001.

ADDRESSES: Written comments should be addressed to Steven C. Riva, 
Chief, Permitting Section, Air Programs Branch, at the New York Region 
2 Office listed below. Copies of the State's submittal and other 
supporting information used in developing the proposed full approval 
are available for inspection during normal business hours at the 
following location: EPA Region 2, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, Attention: Steven C. Riva.

FOR FURTHER INFORMATION CONTACT: Steven C. Riva, Chief, Permitting 
Section, Air Programs Branch, at the above EPA office in New York or at 
telephone number (212) 637-4074.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    As required under Title V of the Clean Air Act (``the Act''), EPA 
has promulgated rules which define the minimum elements of an 
approvable State operating permits program and the corresponding 
standards and procedures by which the EPA will approve, oversee, and 
withdraw approval of State operating permits programs (see 57 FR 32250 
(July 21, 1992)). These rules are codified at Title 40 of the Code of 
Federal Regulations (40 CFR) part 70. Title V of the Act directs States 
to develop, and submit to EPA for approval, programs for issuing 
operating permits to all major stationary sources and to certain other 
sources. The EPA's program review occurs pursuant to section 502 of the 
Act and the part 70 regulations, which together outline criteria for 
approval or disapproval.
    On November 7, 1996, EPA granted New York interim approval of its 
part 70 program. 61 FR 57589. At that time, EPA stated that there were 
eight interim approval issues that needed to be fixed in order for the 
EPA to grant New York full approval. However, with regard to five of 
the eight issues identified, EPA stated that if revisions to part 70 
were finalized (proposed revisions were published in the Federal 
Register on August 29, 1994 and August 31, 1995) prior to expiration of 
New York's interim approval, New York might not need to address those 
five issues.
    On June 8, 1998, New York submitted to EPA Region 2 revisions to 6 
NYCRR part 201 which address three of the interim approval issues. EPA 
has reviewed the changes and finds that they provide approvable 
corrections for the three issues cited in the final interim approval 
notice.
    On October 5, 2001, New York submitted additional revisions to 6 
NYCRR Parts 200 and 201 which addressed three of the remaining five 
interim approval issues. These changes were accomplished through New 
York State's emergency rulemaking procedures and were filed with the 
New York State Department of State with an effective date of September 
19, 2001. A separate rulemaking proposal with identical changes was 
also filed with the Department of State and will replace the 
``emergency'' package once the rulemaking proposal is finalized.
    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs until December 
1, 2001. (65 FR 32035) The action was subsequently challenged by the 
Sierra Club and the New York Public Interest Research Group (NYPIRG). 
In settling the litigation, EPA agreed to publish a notice in the 
Federal Register that would alert the public that they may identify and 
bring to EPA's attention alleged programmatic and/or implementation 
deficiencies in Title V programs and that EPA would respond to their 
allegations within specified time periods if the comments were made 
within 90 days of publication of the Federal Register notice.
    Several citizens commented on what they believe to be deficiencies 
with respect to the New York State Title V program. EPA takes no action 
on those comments in today's action and will respond to them separately 
by December 1, 2001. As stated in the Federal Register notice published 
on December 11, 2000, (65 FR 77376) EPA will respond by December 1, 
2001 to timely public comments on programs that have obtained interim 
approval; and EPA will respond by April 1, 2002 to timely comments on 
fully approved programs. We will publish a notice of deficiency (NOD) 
if we determine that a deficiency exists, or we will notify the 
commenter in writing to explain our reasons for not making a finding of 
deficiency. An NOD will not necessarily be limited to deficiencies 
identified by citizens and may include any deficiencies that EPA has 
identified through its program oversight.
    Therefore, citizens should limit any comments on today's Notice to 
the specific issues delineated herein; that is, those eight specific 
issues that were addressed pursuant to EPA's November 7, 1996 interim 
approval of the New York State operating permits program.

II. Proposed Action and Implications

A. Analysis of State Submission

    EPA is proposing full approval of New York's Title V program as 
submitted on November 12, 1993, June 17, 1996, and June 27, 1996, 
revised and resubmitted on June 8, 1998, and resubmitted under 
emergency rulemaking procedures on October 5, 2001. The following 
addresses the June 8, 1998, resubmission which fixes three of the 
program deficiencies EPA found on November 7, 1996, and the October 5, 
2001, emergency rulemaking which addresses three additional program 
deficiencies that were also identified by EPA on November 7, 1996. EPA 
seeks comment on its proposal to fully approve New York's program.

[[Page 53967]]

1. Issues Raised in the Interim Approval Notice That Have Been 
Corrected
    a. On June 8, 1998, New York submitted revisions to 6 NYCRR Part 
201 which satisfy three deficiencies noted in the November 7, 1996, 
Federal Register notice granting New York interim approval.
    i. Under the reporting requirements of 6 NYCRR 201-6.5(c)(3)(ii), 
New York provides that a permittee can seek to have a violation excused 
as provided in 201-1.4 if such violations are reported as required in 
201-1.4(b). The DEC Commissioner is provided discretion under 201-1.4 
to excuse violations of any applicable emission standard for necessary 
scheduled equipment maintenance, start-up/shutdown conditions, 
malfunctions, and upsets if such violations are unavoidable and the 
permittee meets certain conditions and reporting requirements. EPA 
found that New York's rule was deficient since it was not clear that 
the DEC Commissioner's discretion could only apply to state 
implementation plan (SIP) requirements or State-only requirements. Such 
discretion could not extend to other Federal requirements such as NSPS, 
NESHAPs or PSD/NSR. In its notice proposing interim approval, EPA 
stated that in order to receive full approval, New York must add a 
sentence to 6 NYCRR 201-6.5(c)(3)(ii) which clarifies that the 
discretion to excuse a violation under 201-1.4 will not extend to 
Federal requirements unless the specific Federal requirement provides 
for the affirmative defense during start-ups, shutdowns, malfunctions, 
or upsets. New York amended 201-6.5(c)(3)(ii) to state that a federal 
regulation can only be excused if the specific federal regulation 
provides an affirmative defense during start-up, shutdowns, 
malfunctions or upsets. Therefore, the affirmative defense provisions 
at 201-1.4 cannot be used for federally promulgated regulations. EPA 
considers this issue resolved for purposes of granting the State of New 
York full program approval.
    ii. 40 CFR 70.6 provides that permits can include alternative 
emission limits, equivalent to those contained in the SIP, as long as 
the SIP allows for alternative emission limits to be made through the 
permit issuance, renewal or significant modification process. EPA in 
its interim approval notice found that New York's language was overly 
broad in that it allowed New York to provide for alternative emission 
limits even if that was not provided in a particular regulation 
approved into the SIP or even if the limit was not determined to be 
``equivalent'' to that in the SIP. New York amended 201-6.5(a)(1)(ii) 
to state that permits can only include alternative emission limits if 
provided for in a SIP and if the alternative emission limit is 
determined by NYSDEC to be equivalent to the limit in the SIP. 
Therefore, EPA considers this issue resolved for purposes of granting 
the State of New York full program approval.
    iii. EPA in its interim approval notice had found that 6 NYCRR 201-
6.5(f)(3) concerning operational flexibility related to emissions 
trading under the SIP did not include one of the ``gatekeepers'' of 40 
CFR 70.4(b)(12)(i) which states that changes do not need to undergo a 
permit revision as long as the changes are not modifications under any 
provision of Title I of the Act. 6 NYCRR 201-6.5(f)(4) concerning 
operational flexibility related to emissions trading under a cap did 
not include the two gatekeepers of 40 CFR Sec. 70.4(b)(12) which state 
that (1) 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 (2) the changes do not exceed the emissions allowable under the 
permit. New York revised paragraphs 201-6.5(f)(3) and 201-6.5(f)(4) to 
include the needed gatekeepers from Sec. 70.4(b)(12)(i). Therefore, EPA 
considers this issue resolved for purposes of granting the State of New 
York full program approval.
    b. On October 5, 2001, New York submitted revisions to 6 NYCRR 
Parts 200 and 201 which satisfy three additional deficiencies noted in 
the November 7, 1996 Federal Register notice granting New York interim 
approval.
    i. 40 CFR 70.7(e)(2)(i)(B) states that minor permit modification 
procedures may be used for permit modifications involving the use of 
economic incentives, marketable permits, emissions trading, and other 
similar approaches ``to the extent that such minor permit modification 
procedures are explicitly provided for in an applicable implementation 
plan or in applicable requirements promulgated by EPA.'' EPA in its 
interim approval notice found that 6 NYCRR 201-6.7(c)(2) provided for 
use of minor modification procedures for permit modifications involving 
the use of economic incentives and marketable permits, but did not 
include the language quoted above. New York has revised 201-6.7(c)(2) 
to include the language quoted above. Therefore, EPA considers this 
issue resolved for purposes of granting the State of New York full 
program approval.
    ii. EPA had originally found as a deficiency New York's definition 
of ``Regulated Air Pollutant'' in 6 NYCRR 200.1(bq) because it failed 
to include pollutants regulated under section 112(r) of the Act. The 
definition of Regulated Air Pollutant at Sec. 70.2 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. * * *'' New York's definition 
of regulated air pollutant includes ``any hazardous air pollutant,'' 
which New York defines by providing a list of the 112(b) pollutants. 
New York added a new requirement at 6 NYCRR 201.1(bm) to include in its 
definition of regulated air pollutants, pollutants regulated under 
section 112(r) of the Act. Therefore, EPA considers this issue resolved 
for purposes of granting the State of New York full program approval.
    iii. 40 CFR 70.4(b)(12)(i) provides that states can allow sources 
to make 502(b)(10) changes without requiring a permit revision. 40 CFR 
Sec. 70.2 defines ``section 502(b)(10) changes'' as changes that 
contravene an express permit term as long as such changes would not 
violate applicable requirements or contravene federally enforceable 
permit terms and conditions that are monitoring, recordkeeping, 
reporting, or compliance certification requirements. New York's 
regulation did not provide for one of the three elements defined to 
provide operational flexibility under section 502(b)(10) of the Act. 
New York has revised its regulations at 6 NYCRR 201-6.5(f)(6) to 
provide the operational flexibility provisions as set forth in section 
502(b)(10) of the Act. Therefore, EPA considers this issue resolved for 
purposes of granting the State of New York full program approval.
2. Other Issues Raised in Interim Approval Notice
    i. Judicial Review: 40 CFR 70.4(b)(3)(xii) requires that petitions 
for judicial review be filed no later than 90 days after the final 
permit action, or such shorter time as the State shall designate. 
Article 78 of the New York Civil Practice Law and Rules (CPLR) provides 
a four month statute of limitations for persons to seek judicial review 
of all New York State agencies' actions. When granting the interim 
approval, EPA stated that New York must adopt a 90 day statute of 
limitations through rulemaking in order to be consistent with part 70. 
However, in granting New York interim approval

[[Page 53968]]

EPA also mentioned that it had proposed on August 29, 1994 to extend 
the filing date of requesting judicial review from 90 days to 125 days, 
and that if part 70 were promulgated as proposed, New York would not 
need to change the statute of limitations.
    EPA has revisited this issue and now proposes that New York need 
not change its filing date for seeking judicial review as its filing 
date is more stringent than the federal requirement. One goal of Title 
V is to provide more public participation in the air permitting 
process. The four month statute of limitations provided under the CPLR 
gives citizens an additional month to seek judicial review. EPA 
believes that imposing a unique, and shorter, statute of limitations 
than otherwise applies in New York State for Title V purposes would 
result in less public involvement in permitting actions. EPA also 
believes that the one additional month provided by New York's rule, 
beyond the 90 day period provided in part 70, is not so long as to deny 
facilities repose as to when their permits would no longer be subject 
to suit. Because EPA encourages involvement by citizens as well as 
permittees in the permitting process, it is prudent that EPA allow a 
state to continue to use the statute of limitations the public is 
familiar with when seeking judicial review. The statute of limitations 
has no impact on the implementation or enforcement of the Title V 
program. EPA also considers New York's statute of limitations to be 
more stringent than the one required under part 70 such that this 
should not have been raised as a program deficiency. Therefore, EPA 
proposes to remove the statute of limitations interim approval issue.
    ii. Definition of Major Source: In its interim approval, EPA found 
New York's definition of ``major source'' at 6 NYCRR 201-2(b)(21) to be 
inconsistent with the definition in 40 CFR 70.2. In 40 CFR 70.2, the 
last category in the list of 27 categories of stationary sources in 
which fugitive emissions must be included to determine if a source is 
subject to Title V includes ``* * * all other stationary source 
categories regulated by a standard promulgated under section 111 or 112 
of the Act, but only with respect to those air pollutants that have 
been regulated for that category.'' EPA determined this to be a 
deficiency based on a March 8, 1994 memorandum from Lydia Wegman 
entitled ``Consideration of Fugitive Emissions in Major Source 
Determinations.'' EPA stated it would grant interim approval for 
programs that do not require fugitives to be counted in determining the 
status of post 1980 NSPS source categories. That same memo also stated 
that EPA did not follow the procedural steps necessary for a proper 
rulemaking under Section 302(j) of the Act and would revise the 
definition in part 70.
    EPA has proposed a revision to the major source definition that 
will incorporate the 1980 cutoff date which will resolve this issue in 
the New York State program. We are therefore proposing to approve New 
York's definition of major source.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed full 
approval. Copies of the State's submittal and other information relied 
upon for the proposed approval are contained in a docket maintained at 
the EPA Regional Office located in New York. The docket is an organized 
and complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this proposed rulemaking. The 
principal purposes of the docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process; and
    (2) to serve as the record in case of judicial review. The EPA will 
consider any comments received by November 26, 2001.

B. Executive Order 12866

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

C. Paperwork Reduction Act

    This action will not impose any collection information subject to 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
other than those previously approved and assigned OMB control number 
2060-0243. For additional information concerning these requirements, 
see 40 CFR part 70. An agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

D. 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 
Executive Order 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 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.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

E. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) revokes and replaces Executive Order 12612 (Federalism) and 
Executive Order 12875 (Enhancing the Intergovernmental Partnership). 
Under section 6(c) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications and that preempts state law 
unless the agency consults with state and local officials early in the 
process of developing the proposed regulation.
    EPA has concluded that this proposed rule may have federal 
implications. For example, under the authority of section 505 of the 
Act, 42 U.S.C. 7661(d), EPA may object to a permit issued under the New 
York's Title V Operating Permit Program. Should New York fail to revise 
the permit based upon EPA's objection, EPA has the authority under this 
section of the Act to issue a federal permit for the facility under 40 
CFR Part 71. However, it will not impose direct compliance costs on 
State or local governments, nor will it preempt State law. Thus, the 
requirements of sections 6(b) and Executive Order 13132, entitled 
Federalism (64 FR 43255, August 10, 1999) require EPA to develop an 
accountable process to ensure ``meaningful and timely input by state 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal Government provides the funds. Therefore, section 6(c) of 
the Executive Order does not apply to this rule.

[[Page 53969]]

    Consistent with EPA policy, EPA nonetheless consulted closely with 
the Governor of New York and his staff early and throughout the process 
of developing New York's regulations to allow them to have meaningful 
and timely input in the development of its Title V Operating Permit 
Program. EPA worked closely with the Governor's legal staff in drafting 
the legislation and regulations for this program.

F. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

G. Regulatory Flexibility Act (RFA)

    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 rule will not have a significant impact on a substantial 
number of small entities because Part 70 approvals under Section 502 of 
the CAA do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this 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.

H. Unfunded Mandates

    Under sections 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 
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 does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either state, local, or tribal governments in the 
aggregate, or to the private sector. This federal action approves pre-
existing requirements under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

List of Subjects in 40 CFR Part 70

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

    Dated: October 19, 2001.
William J. Muszynski,
Acting Regional Administrator, Region 2
[FR Doc. 01-26927 Filed 10-24-01; 8:45 am]
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