[Federal Register Volume 67, Number 24 (Tuesday, February 5, 2002)]
[Rules and Regulations]
[Pages 5216-5218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2708]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NY002; FRL-7137-7]


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. 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. EPA is 
promulgating this final program approval to replace the approval 
granted in the December 5, 2001 Federal Register (66 FR 63180), 
effective on November 30, 2001, which was based on New York State 
emergency rules that will expire on February 1, 2002.

EFFECTIVE DATE: January 31, 2002.

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: In the December 5, 2001 Federal Register (66 
FR 63180), EPA issued a final approval of the operating permit program 
submitted by the State of New York, based, in part, on emergency rules 
that became effective on September 19, 2001, and that were scheduled to 
expire on December 18, 2001. Concurrent with EPA's proposed approval of 
the emergency rules, EPA proposed approval of the New York State 
operating permit program based on draft permanent rules that the State 
was expected to shortly submit in adopted form. The draft permanent 
rules were identical to the adopted emergency rules. On December 4, 
2001, New York State filed a 60-day extension to its emergency 
rulemaking. Thus, the emergency rules are now scheduled to expire on 
February 1, 2002.
    Subsequent to publication of the December 5, 2001 Federal Register 
Notice (66 FR 63180), New York submitted to EPA on January 2, 2002, 
copies of final permanent rules that became effective on January 18, 
2002. These permanent rules are identical to those effective under the 
emergency rulemaking.
    The final New York State operating permit program approval that was 
effective on November 30, 2001, and based in part on New York's 
emergency rules, was proposed by EPA in an October 25, 2001 Federal 
Register Notice (66 FR 53966). During the subsequent 30-day public 
comment period, EPA received one comment letter dated November 23, 2001 
from the New York Public Interest Research Group (NYPIRG). NYPIRG 
challenged EPA's ability to proceed with full approval when, according 
to the comment, the program does not clearly conform to the 
requirements of 40 CFR part 70. NYPIRG also commented on the inadequacy 
of New York's definition of ``major source.'' The remaining issues 
raised in this comment letter were outside the scope of the subject 
action. As discussed in the December 5, 2001 Federal Register, EPA 
disagrees with these comments. 66 FR at 63181.
    Therefore, based on the final, permanent rulemaking that became 
effective on January 18, 2002, EPA hereby grants final, full approval 
to the State of New York for an operating permit program in accordance 
with Title V of the Act and 40 CFR part 70. The specific program 
changes that are the subject of this Notice, which are the same changes 
that were the subject of EPA's approval under New York State's 
emergency rules, are delineated in the December 5, 2001 Federal 
Register Notice (66 FR 63180).
    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 January 31, 2002. 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

[[Page 5217]]

that it is in the public interest for the program to take effect before 
February 1, 2002. EPA's full final approval of New York State's program 
based on the State's emergency rulemaking expires on February 1, 2002. 
In the absence of this full approval taking effect on January 31, 2002, 
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 
more than five years, first under an interim approval and then under 
full approval. 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 Act and 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. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA 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. 
section 804(2). This rule will be effective on January 31, 2002.
    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 April 8, 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) of the Act).

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: January 28, 2002.
Jane M. Kenny,
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 (d) 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
* * * * *
    (d) The New York State Department of Environmental Conservation 
submitted program revisions on June 8, 1998 and January 2, 2002. The 
rule revisions contained in the June 8, 1998 and January 2, 2002 
submittals adequately addressed the conditions of the interim 
approval effective on December 9, 1996. The State is hereby

[[Page 5218]]

granted final full approval effective on January 31, 2002.
* * * * *
[FR Doc. 02-2708 Filed 2-4-02; 8:45 am]
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