[Federal Register Volume 66, Number 234 (Wednesday, December 5, 2001)]
[Rules and Regulations]
[Pages 63168-63170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30096]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NJ002; FRL-7113-1]


Clean Air Act Final Full Approval of Operating Permit Program; 
New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is promulgating final full approval of the operating 
permit program submitted by the State of New Jersey in accordance with 
Title V of the Clean Air Act (the Act) and its implementing 
regulations. This approved program allows New Jersey to issue federally 
enforceable operating permits to all major stationary sources and to 
certain other sources within the State's jurisdiction.

EFFECTIVE DATE: November 30, 2001.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the final full approval are available 
for inspection during normal business hours at the following location: 
U.S. Environmental Protection Agency, Region 2, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.

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: This section provides additional information 
by addressing the following questions:

    1. What is the operating permits program?
    2. What is being addressed in this document?
    3. What are the program changes that EPA is approving?
    4. What is involved in this final action?
    5. What is the effective date of EPA's final full approval of 
the New Jersey title V program?

1. What Is the Operating Permits Program?

    Title V of the Clean Air Act (CAA) and its implementing regulations 
at 40 CFR part 70 (part 70) direct all states to develop and implement 
operating permit programs that meet certain criteria. Operating permit 
programs are intended to consolidate into single

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federally enforceable documents all CAA requirements that apply to 
individual sources. This consolidation of all of the applicable 
requirements for a source enables the source, the public, and 
permitting authorities to more easily determine what CAA requirements 
apply and whether the source is complying with them. Sources required 
to obtain operating permits include ``major'' sources of air pollution 
and certain other sources specified in CAA section 501 and in EPA's 
regulations at 40 CFR 70.3.
    The EPA reviews state programs pursuant to title V of the CAA and 
part 70, which outline the criteria for approval or disapproval. Where 
a program substantially, but not fully, meets the requirements of part 
70, EPA may grant the program interim approval which would be effective 
for two years. If a state does not have in place a fully approved 
program by the time the interim approval expires, the federal operating 
permit program under 40 CFR part 71 (part 71) will be implemented. Due 
to unexpected circumstances that affected states' timeliness in 
developing fully approvable programs, EPA extended the effective date 
of all interim approvals until December 1, 2001. For any state that has 
not received full approval from EPA by December 1, 2001, its interim 
approval will then expire and be immediately replaced by the federal 
part 71 program. All sources subject to the federal program that do not 
have final part 70 permits already issued to them by the state are then 
required to submit a part 71 permit application and the appropriate 
fees within one year to their respective EPA Regional offices under 
part 71.

2. What Is Being Addressed in This Document?

    New Jersey's first version of its operating permit program 
substantially, but not fully, met the requirements of part 70; 
therefore, EPA granted the program interim approval on May 16, 1996, 
which became effective on June 17, 1996 (61 FR 24715). EPA identified 
four issues that needed correction before New Jersey would be eligible 
for full approval. New Jersey submitted a corrected program to EPA on 
May 31, 2001, which addressed each of the four deficiencies.
    On October 25, 2001, EPA proposed full approval of New Jersey's 
title V operating permit program and provided the public a period of 30 
days to submit comments on EPA's proposed action (66 FR 53969). During 
the 30-day comment period, EPA received no comments on the proposed 
full approval. However, EPA finds it appropriate to clarify a statement 
made in the ``Nonmajor Sources Section'' of the proposal. Where it was 
stated that ``[a]n exemption not only relieves the subject sources from 
the permitting requirement; it also relieves them from the substantive 
requirements,'' EPA did not mean to imply that an exemption from the 
permitting requirement would also exempt the subject source for 
substantive requirements in the standard. The subject nonmajor source 
must check the individual standards to determine if requirements other 
than the need to obtain a part 70 permit apply to it. This document 
finalizes EPA's action on the proposal.

3. What Are the Program Changes That EPA Is Approving?

    The details on the program changes can be found in EPA's proposed 
action which was published in the October 25, 2001 issue of the Federal 
Register (see 66 FR 53969). In summary, EPA approves the following 
changes to the New Jersey Operating Permit Rule that became effective 
on August 2, 1999:
    (1) N.J.A.C. 7:27-22.20(b)(7);
    (2) N.J.A.C. 7:27-22.29(a) and 22.29(e); and
    (3) N.J.A.C. 7:27-22.1.

4. What Is Involved in This Final Action?

    The State of New Jersey has fulfilled the conditions of the interim 
approval granted on May 16, 1996. EPA is therefore taking final action 
to fully approve New Jersey's operating permit program. EPA is also 
taking final action to approve other program changes made by the State 
since the interim approval was granted as identified in the October 25, 
2001 issue of the Federal Register notice (see 66 FR 53969). This final 
full approval has no expiration date. However, the State may revise its 
operating permit program as appropriate in the future by following the 
procedures stipulated in 40 CFR 70.4(i). EPA may also exercise its 
oversight authorities under section 502(i) of the Act to require 
changes to the State's program consistent with the procedure stipulated 
in 40 CFR 70.10.
    In its program submittal, New Jersey did not assert jurisdiction 
over Indian country. To date, no tribal government in New Jersey has 
applied to EPA for approval to administer a title V program in Indian 
country within the State. On February 12, 1998, EPA promulgated 
regulations (40 CFR part 49) under which eligible Indian tribes may be 
approved by EPA to implement a title V program on Indian reservations 
and in non-reservation areas over which the tribe has jurisdiction. EPA 
has promulgated regulations (40 CFR part 71) governing the issuance of 
federal operating permits in Indian country. EPA's authority to issue 
permits in Indian country was challenged in Michigan v. EPA, (D.C. Cir. 
No. 99-1151). On October 30, 2001, the court issued its decision in the 
case, vacating a provision that would have allowed EPA to treat areas 
over which EPA determines there is a question regarding the area's 
status as if it is Indian country, and remanding to EPA for further 
proceedings. EPA will respond to the court's remand and explain EPA's 
approach for further implementation of part 71 in Indian country in a 
future action.

5. What Is the Effective Date of EPA's Final Full Approval of the 
New Jersey Title V Program?

    EPA is using the good cause exception under the Administrative 
Procedure Act (APA) to make the full approval of the State's program 
effective on November 30, 2001. In relevant part, section 553(d) 
provides that publication of ``a substantive rule shall be made not 
less than 30 days before its effective date, except--* * * (3) as 
otherwise provided by the agency for good cause found and published 
with the rule.'' Good cause may be supported by an agency determination 
that a delay in the effective date is ``impracticable, unnecessary, or 
contrary to the public interest.'' APA section 553(b)(3)(B). EPA 
believes that it is necessary and in the public interest to make this 
action effective sooner than 30 days following publication. In this 
case, EPA believes that it is in the public interest for the program to 
take effect before December 1, 2001. EPA's interim approval of New 
Jersey's program expires on December 1, 2001. In the absence of this 
full approval taking effect on November 30, 2001, the federal part 71 
program would automatically take effect in New Jersey and would remain 
in place until the effective date of the fully-approved state program. 
EPA believes it is in the public interest for sources, the public and 
the State to avoid any gap in coverage of the State program, as such a 
gap could cause confusion regarding permitting obligations. 
Furthermore, a delay in the effective date is unnecessary because New 
Jersey has been administering the title V permit program for five years 
under an interim approval. Through this action, EPA is approving a few 
revisions to the existing and currently operational program. The change 
from the interim approved program which substantially but did not fully 
meet the part 70 requirements, to the fully approved program is 
relatively minor, in

[[Page 63170]]

particular if compared to the changes between a state-approved program 
and the federal program. Finally, sources are already complying with 
many of the newly approved requirements as a matter of state law. Thus, 
there is little or no additional burden with complying with these 
requirements under the federally approved State program.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this final 
approval will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it approves pre-existing requirements under 
state law and does not impose any additional enforceable duties beyond 
that required by state law. This rule also does not have tribal 
implications because it will not have a substantial direct effect on 
one or more Indian tribes, 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 by Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). This 
rule also does not have Federalism implications because it will not 
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, 
as specified in Executive Order 13132, ``Federalism'' (64 FR 43255, 
August 10, 1999). This rule merely approves existing requirements under 
state law, and does not alter the relationship or the distribution of 
power and responsibilities between the State and the Federal government 
established in the Clean Air Act. This final approval also is not 
subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) or Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866. This action will not impose any collection of 
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.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program , to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply.
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on November 30, 2001.
    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 February 4, 2002. 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, 
Reporting and recordkeeping requirements.

    Dated: November 28, 2001.
William J. Muszynski,
Acting Regional Administrator, Region 2.

    For reasons set out in the preamble, chapter I, 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 paragraph (c) to the 
entry for New Jersey to read as follows:

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

* * * * *

New Jersey

* * * * *
    (c) The New Jersey Department of Environmental Protection 
submitted program revisions on September 17, 1999 and May 31, 2001. 
The rule revisions contained in the September 17, 1999 and May 31, 
2001 submittals adequately addressed the conditions of the interim 
approval effective on June 17, 1996, and which would expire on 
December 1, 2001. The State is hereby granted final full approval 
effective on November 30, 2001.
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[FR Doc. 01-30096 Filed 12-4-01; 8:45 am]
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