[Federal Register Volume 67, Number 208 (Monday, October 28, 2002)]
[Rules and Regulations]
[Pages 65710-65713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25857]



[[Page 65710]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-01-48-7174a; A-1-FRL-7376-5]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Prevention of Significant Deterioration (PSD) of Air 
Quality Permit Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of New Hampshire. The revision consists of a new 
rule, PART Env-A 623, ``Prevention of Significant Deterioration (PSD) 
of Air Quality Permitting,'' that adopts into New Hampshire's SIP the 
federal PSD program provisions. The SIP revision also amends New 
Hampshire's permit procedural rule, PART Env-A 205, ``Permit Notice and 
Hearing Procedures: Temporary Permits and Permits to Operate,'' to make 
the rule consistent with the new state PSD rule. The approval of this 
revision will make the New Hampshire PSD program consistent with the 
federal plan requirements for a SIP-approved PSD program. This action 
is being taken in accordance with the Clean Air Act.

DATES: This direct final rule is effective on December 27, 2002 without 
further notice, unless EPA receives adverse comment by November 27, 
2002. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Comments may be mailed to Steven A. Rapp, Manager, Air 
Permits, Toxics and Indoor Programs, Office of Ecosystem Protection 
(mail code CAP), U.S. Environmental Protection Agency, EPA-New England, 
1 Congress Street--Suite 1100, Boston, MA 02114-2023. Copies of the 
documents relevant to this action are available for public inspection 
during normal business hours, by appointment at the Office Ecosystem 
Protection, U.S. Environmental Protection Agency, Region I, One 
Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and 
Information Center, U.S. Environmental Protection Agency, Room B-108, 
1301 Constitution Avenue, NW., Washington DC; and the Department of 
Environmental Services, 64 North Main Street, Caller Box 2033, Concord, 
NH 03302-2033.

FOR FURTHER INFORMATION CONTACT: Brendan McCahill, (617) 918-1652; 
email at [email protected].

SUPPLEMENTARY INFORMATION: On August 6, 2001, the State of New 
Hampshire submitted a formal request to revise its State Implementation 
Plan (SIP). This notice approves New Hampshire's submitted revisions 
and solicits comments on this approval. The SIP revision adopts into 
New Hampshire's SIP the federal PSD program provisions as set forth in 
40 CFR 52.21. The SIP revision also amends two sections of New 
Hampshire's permit procedural rules required to implement the new state 
PSD program; Part Env-A 205.03, ``Applications Subject to PSD 
Requirements,'' and Part-A 205.04, ``Applications Subject to 
Nonattainment Requirements.'' Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

I. Summary of SIP Revision

    The following table summarizes the contents of this document.

Table of Contents

I.A: What is the PSD Program?
I.B: What is the history of the PSD program in New Hampshire?
I.C: How will New Hampshire's SIP-approve PSD program under 40 CFR 
51.166 differ from the delegated PSD program under 40 CFR 52.21?
II. Final Action
III. Administrative Requirements

I.A: What Is the PSD Program?

    The Clean Air Act (CAA) requires new major sources and major 
modifications to major sources to obtain an air pollution permit before 
commencing construction. The PSD program is the set of regulations 
specifying the minimum permit requirements for new major sources or 
major modifications in areas that are in attainment of the national 
ambient air quality standards (NAAQS). The PSD program includes two 
major elements: (1) provisions for an air quality analysis that ensure 
new major sources or modifications do not violate NAAQS or applicable 
air quality increments and; (2) provisions for Best Available Control 
Technology (BACT) that require sources to install air pollutant 
controls and/or implement pollution reduction operations.

I.B: What Is the History of the PSD Program in New Hampshire?

    In a March 18, 1982 letter to the Director of the New Hampshire Air 
Resources Agency, EPA delegated to New Hampshire the administrative 
provisions of the Federal PSD program under 40 CFR 52.21. Under the 
terms of the delegation, New Hampshire was responsible for: (1) 
receiving and processing PSD applications and (2) developing the 
preliminary determination and draft permit that documents New 
Hampshire's technical findings regarding the air impact analysis and 
BACT requirements. New Hampshire would then forward the preliminary 
determination and draft permit to EPA for final issuance. EPA retained 
authority to issue and enforce the final PSD permit.
    On January 28, 1999, the New Hampshire Department of Environmental 
Services, Air Resources Division (ARD), submitted a SIP revision that 
consists of a new rule, PART Env-A 623, ``Prevention of Significant 
Deterioration of Air Quality Permitting. The submittal was intended to 
adopt into New Hampshire's SIP the federal PSD program provisions as 
set forth in 40 CFR 52.21. However, due to issues with the federal 
citations referenced in the submittal, EPA could not fully approve the 
rule and therefore, did not take action on the submittal.
    In a November 27, 2000 letter to the Regional Administrator, the 
ARD formally withdrew its January 28, 1999 SIP revision and requested 
full delegation to implement the federal PSD rules at 40 CFR 52.21 
including the authority to issue and enforce PSD permits. In addition, 
the ARD requested authority to enforce PSD permits already issued by 
EPA. On July 9, 2001, EPA Region I approved the ARD's request to accept 
full delegation of the PSD program under 40 CFR 52.21.
    On August 6, 2001, the ARD submitted SIP revisions that consist of 
new rule, PART Env-A 623 ``Permit Notice and Hearing Procedures: 
Temporary Permits and Permits to Operate,'' that adopts into New 
Hampshire's SIP the federal PSD program provisions as set forth in 40 
CFR 52.21. New Hampshire is also revising portions of its permit 
procedural rules, Env-A 205, ``Permit Notice and Hearing Procedures: 
Temporary Permits and Permits to Operate,'' to make these rules 
consistent with the new state PSD rule.

[[Page 65711]]

I.C: How Will New Hampshire's SIP-Approve PSD Program Under 40 CFR 
51.166 Differ From the Delegated PSD Program Under 40 CFR 52.21?

    There are two sets of PSD regulations. The first set, 40 CFR 
51.166, specifies the minimum requirements that a State PSD air quality 
permit program under Part C of Title I of the CAA must contain in order 
to obtain approval by EPA as a revision to the SIP. The second set, 40 
CFR 52.21, delineates the federal PSD program, which applies as part of 
the SIP for states that have not submitted a PSD program that meets the 
requirements of 40 CFR 51.166. New Hampshire's SIP revision PART Env-A 
623 adopts by reference into the State's SIP portions of the federal 
PSD program as promulgated in 40 CFR 52.21. By adopting portions of the 
federal PSD program as well as certain other provisions, PART Env-A 623 
satisfies the minimum plan approval requirements for a PSD program 
under 40 CFR 51.166.
    Since the state's new PSD program includes all the federal PSD 
program elements, the state program requirements will be equivalent to 
the federal program. However, New Hampshire adopted public 
participation and permit appeal procedural requirements that are 
specific to the state in place of procedures under the federal program. 
The federally delegated PSD program follows the public participation 
procedural requirements found in EPA's consolidated permit procedure 
regulation at 40 CFR part 124. The federal consolidated permit process 
regulation addresses, among other things, the appeal process for 
several EPA permitting programs including the PSD program. The 
regulation requires that petitions of PSD permit decisions be addressed 
to Federal Environmental Appeals Board (EAB).
    Under the SIP-approved PSD program, the appeal process follows the 
state's permit procedural rules for state-issued permits. With approval 
of New Hampshire's PSD rules, persons aggrieved by a PSD permit 
decision will now direct permit appeals to New Hampshire's Air 
Resources Council as required by the state's permit procedural 
requirements. If the Air Resources Council denies the appeal, the 
petitioner may request the state supreme court to hear the appeal.
    EPA notes that New Hampshire's pending SIP-approved PSD rule did 
not define a date of the incorporated rule revision of 40 CFR 52.21. 
Without this date, New Hampshire believes its PSD rules will 
automatically incorporate and implement all future revisions to 40 CFR 
52.21 without the need for additional state rulemaking. Typically, 
states need to revise their SIP-approved rules to comply with any 
revisions made to underlying federal rules.

II. Final Action

    EPA is approving New Hampshire's PART Env-A 623, ``Prevention of 
Significant Deterioration (PSD) of Air Quality Permit Requirements.'' 
In addition, EPA is approving New Hampshire's Part Env-A 205.03, 
``Applications Subject to PSD Requirements,'' and Part-A 205.04, 
``Applications Subject to Nonattainment Requirements'' adopted by the 
state on February 17, 1995 and amended on July 23, 2001.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective 
December 27, 2002 without further notice unless the Agency receives 
relevant adverse comments by November 27, 2002.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. Only parties 
interested in commenting on the rule should do so at this time. If no 
such comments are received, the public is advised that this rule will 
be effective on December 27, 2002 and no further action will be taken 
on the proposed rule.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 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 SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission 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. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 65712]]

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).
    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 December 27, 2002. Interested 
parties should comment in response to the proposed rule rather than 
petition for judicial review, unless the objection arises after the 
comment period allowed for in the proposal. 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 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 3, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart EE--New Hampshire

    2. Section 52.1520 is amended by adding paragraph (c)(60) to read 
as follows:


Sec.  52.1520  Identification of plan.

* * * * *
    (c) * * *
    (60) Revisions to the State Implementation Plan submitted by the 
New Hampshire Air Resources Division August 6, 2001 and April 26, 1995.
    (i) Incorporation by reference.
    (A) Section 623.01 and sections 623.03 through 623.06 of New 
Hampshire's rule PART Env-A 623 rule entitled, ``Prevention of 
Significant Deterioration (PSD) Of Air Quality Permit Requirements.'' 
This regulation was adopted in the State of New Hampshire on July 23, 
2001.
    (B) New Hampshire's rules PART Env-A 205.03, ``Applications Subject 
to PSD Requirements,'' and PART Env-A 205.04, ``Applications Subject to 
Nonattainment Requirements.'' These regulations were adopted in the 
State of New Hampshire on February 22, 1995 and amended on July 23, 
2001.
    (ii) Additional materials.
    (A) Letter from the New Hampshire Air Resources Division dated 
August 6, 2001 submitting a revision to the New Hampshire State 
Implementation Plan.
    (B) Letter from the New Hampshire Air Resources Division dated 
April 26, 1995 submitting a revision to the New Hampshire State 
Implementation Plan.
    (C) Nonregulatory portions of the State submittal.

    3. In Sec.  52.1525, Table 52.1525 is amended by adding new entries 
to existing state citations for PART Env-A 200 and PART Env-A 600 to 
read as follows:


Sec.  52.1525--EPA-approved  New Hampshire state regulations.

* * * * *

                                          Table 52.1525--EPA-Approved Rules and Regulations \1\--New Hampshire
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                                                               Date         Date
           Title/subject                State citation      adopted by  approved by    Federal  Register         52.1520             Explanations
                                         chapter \2\          State         EPA             citation
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                                                                      * * * * * * *
Procedural Rules..................  Env-A 200............      2/17/95     10/28/02  67 FR 65710..........  (c)(60)           Approving Env-A 205.03 &
                                                                     &                                                         Env-A 205.04 as amended 7/
                                                               7/23/01                                                         23/01
 
                                                                      * * * * * * *
Statewide Permitting System.......  Env-A 600............      7/23/01     10/28/02  67 FR 65710..........  (c)(60)           Adding Part Env-A 623: New
                                                                                                                               Hampshire's PSD permit
                                                                                                                               requirements.
 
                                                                     * * * * * * *
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\1\ These regulations are applicable statewide unless otherwise noted in the Explanation section.
\2\ When the New Hampshire Department of Environmental Services was established in 1987, the citation chapter title for the air regulations changed from
  CH Air to Env-A.


[[Page 65713]]


    4. Section 52.1529 is revised to read as follows:


Sec.  52.1529  Significant deterioration of air quality.

    New Hampshire's Part Env-A 623, ``Requirements for Prevention of 
Significant Deterioration Permits,'' as submitted on August 6, 2001, is 
approved as meeting the requirements of Subpart 1, Part C, Title I, of 
the Clean Air Act.

[FR Doc. 02-25857 Filed 10-25-02; 8:45 am]
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