[Federal Register Volume 66, Number 234 (Wednesday, December 5, 2001)]
[Rules and Regulations]
[Pages 63180-63184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30144]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NY002; FRL-7113-3]


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

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 York in accordance with 
Title V of the Clean Air Act (the Act) and its implementing regulations 
codified. This approved program allows New York to issue federally 
enforceable operating permits to all major stationary sources and to 
certain other sources within the State's jurisdiction. However, because 
certain of the regulations are emergency rules that will expire on 
December 21, 2001, unless extended, EPA is approving this program only 
until the expiration date of the emergency rules. EPA has proposed 
approval of permanent rules that are substantively the same as the 
emergency rules and the State expects to submit those rules in final 
adopted form shortly. Once these rules become effective, EPA will 
promulgate another final program approval to replace this action. In 
the interim, the emergency rules will still be in effect and, 
therefore, New York will still have a fully approved program. If EPA 
has not approved the State's revised permanent rules before the 
emergency rules expire, New York's title V permit program will expire 
and the federal program will automatically apply. If New York's 
emergency rules expire as discussed above and a federal program under 
part 71 takes effect in the state, EPA will provide notice to the 
public within two weeks of the effective date of the federal program in 
a subsequent Federal Register document. Because EPA received adverse 
comments on the proposed action published in the October 25, 2001 
Federal Register (66 FR 53966), this action responds to those comments.

EFFECTIVE DATE: November 30, 2001.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing this 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 permit program?
    2. What is being addressed in this document?
    3. What were the concerns raised by the commenters?
    4. What is the public's role in identifying program 
deficiencies?
    5. What are the program changes that EPA is approving?
    6. What is involved in this final action?
    7. What is the scope of EPA's full approval?
    8. What is the effective date of EPA's final full approval of 
the State of New York title V program?

1. What Is the Operating Permit Program?

    Title V of the Clean Air Act (the Act) 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 
federally enforceable documents all requirements of the Act 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 requirements of 
the Act 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 section 501 of the Act 
and in EPA's regulations at 40 CFR 70.3.
    The EPA reviews state programs pursuant to title V of the Act 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 automatically take 
effect. 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 will be 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 York State's first version of its operating permit program 
substantially, but not fully, met the requirements of part 70; 
therefore, EPA granted interim program approval on November 7, 1996, 
which became effective on December 9, 1996 (61 FR 57589). In the 
interim approval rulemaking EPA identified eight issues that needed 
correction before New York would be eligible for final full approval. 
New York State submitted a corrected program to EPA

[[Page 63181]]

on June 8, 1998, which addressed three of the deficiencies. The State 
submitted a second corrected program to EPA on October 5, 2001, which 
addressed three additional deficiencies. The latter three corrections 
were submitted in final form as emergency rules, which will expire on 
December 21, 2001, unless extended. At the same time, New York 
submitted proposed permanent rules (which were identical to the 
emergency rules) which will replace the emergency rules, and which the 
State is currently in the process of adopting. The State will submit 
the permanent rules shortly after the completion of the State's public 
comment process, and before the expiration of the emergency rules.
    As discussed in the proposed approval notice (66 FR 53966), EPA no 
longer considers the remaining two issues to be deficiencies. First, 
because New York State affords more time than part 70 requires for 
citizens to file a petition for judicial review, this issue is not 
considered to be a program deficiency. The second issue related to the 
definition of ``major source.'' EPA recently promulgated regulations 
revising the definition of major source, which is now consistent with 
the definition included in the New York State operating permit program. 
As such, there is no longer a program deficiency with respect to this 
definition.
    On October 25, 2001, EPA proposed full approval of New York State'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 53966). The 
proposed approval concerned the three permanent rules submitted on June 
8, 1998 (effective on June 26, 1998) as well as the emergency and draft 
permanent rules submitted on October 5, 2001. During the 30-day comment 
period, EPA received one comment letter dated November 23, 2001, from 
the New York Public Interest Research Group (NYPIRG). The comments 
contained in that letter are addressed below.

3. What Were the Concerns Raised by the Commenters?

    On November 23, 2001, we received a comment letter from NYPIRG on 
the proposed full approval of the New York program. In this notice, we 
are only addressing the comments which relate to our determination that 
New York has corrected the interim approval deficiencies in its title V 
program. Most of the comments submitted by NYPIRG are outside the scope 
of this action because they do not address the interim approval 
deficiencies and the subsequent correction of these deficiencies. Some 
of these issues have been raised previously by NYPIRG, either in its 
April 13, 1999 petition on the New York State Title V program, in 
subsequent facility specific petitions, or in its March 11, 2001 letter 
submitted in response to EPA's December 2000 notice.
    Of the remaining comments, four are new allegations of deficiencies 
in the New York State Title V program. That is, these allegations were 
not submitted in response to EPA's December 2000 notice that alerted 
the public to identify and bring to EPA's attention alleged 
programmatic and/or implementation deficiencies in state operating 
permit programs. These four comments are also outside of the scope of 
the eight issues identified by EPA in the November 7, 1996 Federal 
Register notice granting interim program approval to New York State. 
Nonetheless, EPA will investigate these allegations to ascertain 
whether they constitute a deficiency in the New York State's Title V 
program, and EPA will respond appropriately.
    In its comment letter, NYPIRG challenged our ability to proceed 
with full approval of New York's program when, according to the 
comment, the program does not clearly conform to the requirements of 
part 70.
    EPA is aware that issues other than those listed in the November 7, 
1996, interim approval may exist in the New York program. EPA agrees 
that these issues must be addressed. For the reasons discussed below, 
however, we disagree that newly identified deficiencies that may exist 
prohibit us from granting New York full program approval at this time.
    In 1990, Congress amended the Clean Air Act, 42 U.S.C. 7401 to 
7671q (``CAA'' or ``Act''), by adding title V, 42 U.S.C. 7661 to 7661f, 
which requires certain air pollutant emitting facilities, including 
``major source[s]'' and ``affected source[s],'' to obtain and comply 
with operating permits. See 42 U.S.C. 7661a(a). Title V is intended to 
be administered by local, state or interstate air pollution control 
agencies, through permitting programs that have been approved by EPA. 
See 42 U.S.C. 7661a(a). EPA is charged with overseeing the State's 
efforts to implement an approved program, including reviewing proposed 
permits and vetoing improper permits. See 42 U.S.C. Secs. 7661a(i) and 
7661d(b). Accordingly, Title V of the CAA provides a framework for the 
development, submission and approval of state operating permit 
programs. Following the development and submission of a state program, 
the Act provides two different approval options that EPA may utilize in 
acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to 
section 502(d), EPA ``may approve a program to the extent that the 
program meets the requirements of the Act * * *'' EPA may act on such 
program submittals by approving or disapproving, in whole or in part, 
the state program. An alternate option for acting on state programs is 
provided by the interim approval provision of section 502(g). This 
section states: ``If a program * * * substantially meets the 
requirements of this title, but is not fully approvable, the 
Administrator may by rule grant the program interim approval.'' This 
provision provides EPA with the authority to act on State programs that 
substantially, but do not fully, meet the requirements of Title V and 
part 70. Only those program submittals that meet the requirements of 
eleven key program areas are eligible to receive interim approval. See 
40 CFR 70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to 
``specify the changes that must be made before the program can receive 
full approval.'' 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit 
directive encompasses another, implicit one: Once a state corrects the 
specified deficiencies then it will be eligible for full program 
approval. EPA believes this is so even if deficiencies have been 
identified sometime after final interim approval, either because the 
deficiencies arose after EPA granted interim approval or, if the 
deficiencies existed at that time, EPA failed to identify them as such 
in proposing to grant interim approval.
    Thus, an apparent tension exists between these two statutory 
provisions. Standing alone, section 502(d) appears to prevent EPA from 
granting a state operating permit program full approval until the state 
has corrected all deficiencies in its program no matter how 
insignificant, and without consideration as to when such deficiency was 
identified. Alternately, section 502(g) appears to require that EPA 
grant a state program full approval if the state has corrected those 
issues that the EPA identified in the final interim approval. The 
central question, therefore, is whether New York by virtue of 
correcting the deficiencies identified in the final interim approval is 
eligible at this time for full approval, or whether New York must also 
correct any new or recently identified deficiencies that may exist as a 
prerequisite to receiving full program approval.
    According to settled principles of statutory construction, 
statutory provisions should be interpreted so that they are consistent 
with one another.

[[Page 63182]]

See Citizens to Save Spencer County v. EPA, 600 F.2d 844, 870 (D.C. 
Cir. 1979). Where an agency encounters inconsistent statutory 
provisions, it must give maximum possible effect to all of the 
provisions, while remaining within the bounds of its statutory 
authority. Id. at 870-71. Whenever possible, the agency's 
interpretation should not render any of the provisions null or void. 
Id. Courts have recognized that agencies are often delegated the 
responsibility to interpret ambiguous statutory terms in such a 
fashion. See Chevron U.S.A, Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always 
possible, however, and furthermore should not be sought if it requires 
distorting the language in a fashion never imagined by Congress. 
Citizens to Save Spencer County, 600 F.2d at 870.
    In this situation, in order to give effect to the principles 
embodied in Title V that major stationary sources of air pollution be 
required to have an operating permit that conforms to certain statutory 
and regulatory requirements, and that operating permit programs be 
administered and enforced by state permitting authorities, the 
appropriate and more cohesive reading of the statute recognizes EPA's 
authority to grant New York full approval in this situation while 
working simultaneously with the state, in its oversight capacity, on 
any additional problems that were recently identified. To conclude 
otherwise would disrupt the current administration of the state program 
and cause further delay in the state's ability to issue operating 
permits to major stationary sources. A smooth transition from interim 
approval to full approval is in the best interest of the public and the 
regulated community and best reconciles the statutory directives of 
Title V.
    Furthermore, requiring the State to fix all of the deficiencies 
that may exist and that have been recently identified prior to 
receiving full approval runs counter to the established regulatory 
process that is already in place to deal with newly identified program 
deficiencies. Section 502(i)(4) of the Act and 40 CFR 70.4(i) and 70.10 
provide EPA with the authority to issue notices of deficiency (``NOD'') 
whenever EPA makes a determination that a permitting authority is not 
adequately administering or enforcing a part 70 program, or that the 
State's permit program is inadequate in any other way. Consistent with 
these provisions, in its NOD EPA will specify a reasonable time frame 
for the permitting authority to correct the identified deficiency. The 
New York Title V interim approval expires on December 1, 2001. This 
deadline does not provide adequate time for the State to correct newly 
identified issues that may exist prior to the expiration of interim 
approval. Allowing the State's program to expire because of issues 
identified as recently as March 2001 will cause disruption and further 
delay in the issuance of permits to major stationary sources in New 
York. As explained above, we do not believe that Title V requires such 
a result. Rather, the appropriate mechanism for dealing with additional 
deficiencies that are identified sometime after a program received 
interim approval but prior to being granted full approval is the notice 
of program deficiency or administration deficiency as discussed herein. 
This process provides the State an adequate amount of time after such 
findings to implement any necessary changes without unduly disrupting 
the entire state operating permit program. As a result, addressing 
newly identified problems separately from the full approval process 
will not cause these issues to go unaddressed. Moreover, proceeding in 
this manner allows for a more rational and orderly method for 
addressing new issues as they arise.
    In addition, NYPIRG submitted one comment that directly relates to 
New York's full program approval process. This comment relates to the 
definition of ``major source.'' NYPIRG commented that EPA can only 
grant full approval if a program complies with part 70 as it exists on 
the date of full program approval. That is, approval cannot be based on 
a determination that a program complies with proposed regulations. EPA 
agrees. The decision to grant full approval is based on the fact that 
the definition of major source in New York State's program is now 
consistent with the definition in part 70. In EPA's proposed approval 
of the New York State program, it was noted that the agency had 
proposed revisions to part 70 relative to the major source definition 
that, when finalized, would be consistent with the definition in New 
York's rules. New York's definition of major source, which lists source 
categories that must include fugitive emissions in determining major 
source status reads, in part: ``All other source categories regulated 
by a standard under Sections 111, for which EPA has completed a 
rulemaking proceeding under 302(j) of the Act or 112 of the Act, but 
only with respect to those air pollutants that have been regulated for 
that category as of the effective date of this Part.'' On November 27, 
2001, the Agency published in the Federal Register a rule that 
finalized EPA's change to paragraph (2)(xvii) of the part 70 definition 
of major source. See 66 FR 59161, November 27, 2001. The revised 
paragraph now reads, ``(xvii) Any other stationary source category, 
which as of August 7, 1980 is being regulated by a standard promulgated 
under section 111 or 112 of the Act.'' This change means that part 70 
no longer requires states to provide that sources in categories subject 
to standards under sections 111 or 112 promulgated after August 7, 1980 
must include fugitive emissions in determining major source status 
under section 302 or part D of title I of the Act. The definition of 
major source in the New York program is now consistent with part 70. 
Although the New York definition is different than the EPA definition, 
the State's definition covers at least the same source categories as 
part 70 (as revised) and, therefore, it is now fully approvable.
    In addition to the above described change, EPA has deleted the 
phrase ``but only with respect to those air pollutants that have been 
regulated for that category'' from paragraph (c)(xvii) of the part 70 
definition of major source. EPA proposed to delete this phrase in its 
1995 supplemental proposal to revise part 70. See 60 FR 45530, August 
31, 1995. States, including New York, must revise their part 70 
programs accordingly, and submit the revision to EPA within 12 months 
of the date of publication of the final rule. If a state can 
demonstrate that additional legal authority is needed, the deadline for 
submittal of a revised program can be extended to 24 months after EPA's 
rule is published.

4. What Is the Public's Role in Identifying Program Deficiencies?

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permit programs until December 
1, 2001. (65 FR 32035). The action was subsequently challenged by the 
Sierra Club and 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. EPA published that notice on December 11, 
2000. (65 FR 77276).
    Several citizens commented on what they believe to be deficiencies 
with respect to the New York State Title V

[[Page 63183]]

program. As stated in the Federal Register notice published on October 
25, 2001 proposing to fully approve New York State's operating permit 
program, EPA takes no action on those comments in today's action. 
Rather, EPA expects to respond by December 14, 2001, to timely public 
comments on programs that had obtained interim approval, and by April 
1, 2002, to timely comments on fully approved programs. EPA will 
publish a notice of deficiency (NOD) when it is determined that a 
deficiency exists, or EPA will notify the commenter in writing to 
explain the agency's reasons for not making a finding of deficiency. In 
addition, EPA will publish a notice of availability in the Federal 
Register notifying the public that the agency has responded in writing 
to these comments and how the public may obtain a copy of such a 
response. 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. Furthermore, in the future, 
EPA may issue an additional NOD if EPA or a citizen identifies other 
deficiencies.

5. 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 53966). In summary, EPA approves the three rule 
revisions that became effective on June 26, 1998, and the three other 
rule revisions that were promulgated pursuant to emergency rulemaking 
on September 21, 2001.

6. What Is Involved in This Final Action?

    The State of New York has adequately fulfilled the conditions of 
the interim approval promulgated on November 7, 1996. EPA is therefore 
taking final action to fully approve New York State's operating permit 
program as revised by the three permanent rules submitted on June 8, 
1998 and the three emergency rules submitted on October 5, 2000. 
However, as previously discussed, since the emergency rules expire on 
December 21, 2001, unless extended, this final full approval will 
expire if EPA has not approved the State's revised permanent rules 
before the emergency rules expire. New York State has commenced a 
separate rulemaking proposal (that is, the ``normal'' rulemaking 
process utilized in the State of New York, including the opportunity 
for public participation), containing the identical regulatory changes. 
The permanent rules will replace the ``emergency'' rules once the 
rulemaking proposal is finalized. Today's approval, however, is 
contingent upon the final permanent rules being substantively the same 
as the draft rules on which EPA proposed this action and which were the 
same as the emergency rules that are already in effect. Once these 
permanent rules become effective, EPA will promulgate another final 
program approval to replace this action. In the interim, the emergency 
rules will still be in effect and, therefore, New York will still have 
a fully approved program. If the State of New York fails to adopt rules 
that are effective before expiration of the emergency rules, then the 
New York State operating permit program will expire and the federal 
part 71 program will automatically take effect. As previously 
discussed, if necessary, EPA will publish a notice in the Federal 
Register within two weeks of the effective date of the federal program.
    New York 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.

7. What Is the Scope of EPA's Full Approval?

    In its program submittal, New York State did not assert 
jurisdiction over Indian country. To date, no tribal government in New 
York 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.

8. What Is the Effective Date of EPA's Final Full Approval of the 
State of New York 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 finds 
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 York 
State's program expires on December 1, 2001. In the absence of this 
full approval taking effect on November 30, the federal part 71 program 
would automatically take effect in New York State 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 York has been 
administering the title V permit program for five years under an 
interim approval. Through this action, EPA is approving 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 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

[[Page 63184]]

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 29, 2001.
William J. Muszynski,
Acting Regional Administrator, Region 2.


    For reasons set out in the preamble, Appendix A of part 70 of title 
40, 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) in the 
entry for New York to read as follows:

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

* * * * *

New York

* * * * *
    (c) The New York State Department of Environmental Conservation 
submitted program revisions on June 8, 1998 and October 5, 2001. The 
rule revisions contained in the June 8, 1998 and October 5, 2001 
submittals adequately addressed the conditions of the interim 
approval effective on December 9, 1996, and which would expire on 
December 1, 2001. The October 5, 2001 submission consists of rules 
adopted pursuant to New York's emergency rulemaking procedures. The 
State is hereby granted final full approval effective on November 
30, 2001.
* * * * *
[FR Doc. 01-30144 Filed 12-4-01; 8:45 am]
BILLING CODE 6560-50-P