Clean Air Act Final Interim Approval of Operating Permits Program; New York

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NY001; FRL-5646-7]

Clean Air Act Final Interim Approval of Operating Permits

Program; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating final interim approval of the

operating permits program that the State of New York (NY) submitted in

accordance with Title V of the Clean Air Act (the Act) and its

implementing regulations codified at Part 70 of Title 40 of the Code of

Federal Regulations (40 CFR Part 70). This approved interim program

allows NY to issue operating permits to all major stationary sources,

and to certain other sources, for a period of two years, at which time

the interim program must be replaced by a fully approved program.

EFFECTIVE DATE: This interim program will be effective December 9,

1996.

ADDRESSES: Copies of NY's submittal and other supporting information

used in developing the final interim approval as well as the Technical

Support Document are available for inspection, during normal business

hours, at the following location: U.S. Environmental Protection Agency,

Region 2 Office, 290 Broadway, 25th Floor, New York, NY 10007-1866;

Attention: Steven C. Riva.

FOR FURTHER INFORMATION CONTACT: Gerald P. DeGaetano, Permitting

Section, Air Programs Branch, Division of Environmental Planning and

Protection, at the above EPA Office, or at telephone number (212) 637-

4020.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

The Act and its implementing regulations at 40 CFR Part 70 require

that States develop and submit operating permit programs to the EPA by

November 15, 1993, and that the EPA act to approve or disapprove each

program within one year after receiving a complete submittal. The EPA

reviews State programs pursuant to Section 502 of the Act and the Part

70 regulations, which together outline the criteria for approval or

disapproval. Where a program substantially, but not fully, meets the

requirements of 40 CFR Part 70, EPA may grant the program interim

approval for a period of up to two years. If a State does not have an

approved program by the end of an interim program, EPA must establish

and implement a federal operating permits program for that State.

On July 30, 1996, EPA proposed interim approval of the operating

permits program submitted by NY (see 61 FR 39617). In that Federal

Register document, EPA indicated that NY was in the process of re-

proposing Appendix B of Title 6 of the Official Compilation of Codes,

Rules and Regulations of the State of New York (6 NYCRR) Part 201

(Appendix B is entitled, ``Transition Plan Application Schedule''), and

that such would be finalized prior to EPA's final interim approval of

the NY program. Subsequently, Appendix B was adopted by NY on September

11, 1996, and became effective 30-days from that date, on October 11,

1996.

During the 30-day public comment period that ended on August 29,

1996, two comment letters were received on the aforementioned EPA

proposal to grant NY interim program approval. One comment letter

supported the State program, and the other letter provided a number of

comments and concerns and asked that these be addressed. A response to

all of the pertinent comments received is included in Section II.B. of

this notice. Based upon EPA's review, none of the comments received

alters EPA's decision to approve the NY program. Therefore, in this

notice, the EPA is taking final action to promulgate interim approval

of the NY Operating Permits Program.

II. Final Action and Implications

A. Analysis of State Submission

On July 30, 1996, the EPA proposed interim approval of NY's Title V

Operating Permits Program. The program elements discussed in the

proposed notice are unchanged, except for Appendix B of 6 NYCRR Part

201, discussed above. EPA's position remains unchanged, in that the NY

program substantially meets the requirements of 40 CFR Part 70.

B. Response to Public Comments

1. Comments From the Society of Plastics Industry, Inc.

In this letter, dated August 27, 1996, the commenter supports NY's

efforts to implement an operating permits program. In addition, the

commenter requested that EPA finalize its August 1994 and August 1995

proposals (to 40 CFR Part 70), to allow the State to quickly receive

final program approval.

Response. In the July 30, 1996 Federal Register Notice, EPA listed

eight items that NY must correct in order for EPA to grant full (rather

than interim) program approval to the State. Under 5 of these 8 items,

it was noted that EPA had proposed revisions to 40 CFR Part 70 on

August 29, 1994 and August 31, 1995 which, if such revisions were to be

promulgated as proposed, would eliminate these 5 issues from being a

barrier to full program approval for NY. That is, NY would not have to

revise its regulations for these 5 issues to receive full program

approval. However, NY will still be required to revise its regulations

with respect to the other 3 issues (refer to Section II.C., below, for

additional discussion on this matter).

EPA is required to grant or deny Title V program approval based on

current requirements. At present, these requirements are those listed

in the 40 CFR Part 70 regulations promulgated on July 21, 1992. Unless

and until these regulations are revised, the July 21, 1992 version will

be applied to determine a State program's approvability. Also, if

future revisions to 40 CFR Part 70 do not address the ``Interim Program

Approval'' items noted in EPA's July 30, 1996 Federal Register Notice,

then New York State must correct those items as described therein, in

order to be granted full program approval.

2. Comments From the Consumer Policy Institute

This letter, dated August 29, 1996, provided a number of comments

on

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EPA's proposed interim operating permits program approval to NY (this

included specific comments to EPA Region 2 on its proposed approval of

NY's program, and an attachment with comments that were previously

provided to NY during the State's public comment period relative to

revisions to regulations codified at 6 NYCRR Parts 200, 201 and 621).

In today's Notice, EPA will address each of the comments made by the

Consumer Policy Institute in its August 29th submittal that pertains to

the subject Title V program. However, a number of other comments in

this letter and attachment relate solely to how changes to NY's

permitting rules impact the State Implementation Plan (SIP). Approval

of the Title V permitting program does not revise any SIP requirements.

Therefore, these SIP-related comments will not be addressed in this

Notice, but will be deferred until such time as EPA processes the

State's rule changes as a SIP revision.

a. Public Review. The commenter states that the public never

received the permit application forms or the compliance tracking and

enforcement program description during the comment period, and that a

chart of SIP-applicable requirements (for use by Title V-affected

sources to ensure that applications list all SIP-applicable

requirements) was still being prepared by NY.

Response. As was noted in the July 30, 1996 Federal Register, which

commenced the public comment period, copies of the State's Title V

operating permits program submittal and other supporting information

are available for inspection during normal business hours at the EPA

Region 2 Office and the New York State Department of Environmental

Conservation (NYSDEC) Central Office, located in Albany, New York. This

available documentation included both the permit application forms, as

well as the compliance and enforcement program description. In

addition, the July 30th Notice listed two EPA Region 2 representatives

that could be contacted for additional information. During the 30-day

public comment period, Region 2 personnel did not receive any calls

from the public requesting to visit the EPA Office to review this

documentation, or requesting that copies be provided.

With respect to the compilation of a chart of SIP-applicable

requirements, while the EPA agrees that such a document will be a

valuable guide for applicants, preparation of the subject chart is not

a criterion of approval for a State Title V program. Therefore, lack of

a final SIP chart will not affect EPA's determination on final program

approval.

b. Fee Demonstration. The commenter states that the purpose of the

fee demonstration is to show that adequate resources will be available

to carry out the Title V program. However, the NYSDEC (the permitting

authority in NY) and, specifically, its Air Division, has lost large

numbers of employees. EPA was questioned as to whether the State's fee

demonstration identifies the resources for program implementation, and

whether fees are being spent where intended, or are being funneled

elsewhere. It was requested that State staff that will work on this

program be identified by name and technical qualifications.

Response. Based upon the EPA's review of NY's fee demonstration, it

has been determined that the State has the authority to collect

sufficient fees to implement its Title V program. As noted in the July

30, 1996 Federal Register Notice, NY's fee demonstration shows that the

State will collect the equivalent of EPA's ``presumptive minimum'' fee

amount. As such, as delineated at 40 CFR Sec. 70.9, a detailed analysis

showing staffing and qualifications was not required. EPA has

determined that the fees collected will enable NY to adequately

implement the operating permits program. This will be certified through

EPA's ongoing program audit of permitting activities, and the review by

EPA of State-prepared, annual program cost documentation.

c. Definition of Source. The commenter states that NY does not

define ``source'' as that term is defined in the Act. Instead, the

State regulates by `emission-point,' and this difference between the

State regulations and 40 CFR Part 70 would allow sources to avoid Title

V permitting via emissions ``capping'' of one or more emission units.

Response. First, it must be noted that NY's definition of source is

consistent with that of the Act (see 6 NYCRR Part 201-2(b)(21)). In

addition, the rules promulgated at 6 NYCRR Part 201-6 are consistent

with the requirements of 40 CFR Part 70, in that all major stationary

sources of air pollution will need to apply for and obtain a Title V

operating permit. However, major sources may wish to restrict their

operations by accepting federally enforceable permit restrictions, so

as to escape from the purview of Title V, and may do so by establishing

such federally enforceable limits in accordance with the State rules

promulgated at 6 NYCRR Part 201-7 (that is, such sources would become

``synthetic'' minor sources). These procedures are acceptable in

accordance with the operating permit program requirements delineated at

40 CFR Part 70 and, as such, do not affect EPA's determination to grant

NY interim program approval.

d. Permitting of Dry Cleaners. The commenter asserts that New York

should have made a provision for permitting non-major area source dry

cleaners.

Response. With respect to non-major sources regulated under section

112 of the Act after July 21, 1992, 40 CFR Part 70 provides that

permitting requirements will be determined at the time that the new

standard is promulgated. However, for dry cleaners and numerous other

non-major sources regulated under section 112, EPA promulgated

regulations deferring the Title V permitting of such sources until

December, 1999 (see 61 FR 27785, dated June 3, 1996). Prior to that

point in time, EPA will determine whether permanent exemptions to Title

V permitting should be established.

e. Two-Phased Application. The commenter asserts that use of a two-

phased application system by NYSDEC during its 3-year transition period

will impact the public's right to review complete applications and

participate in enforcement activities. In addition, the commenter

states that the plan provides for permit shield protection based only

on Phase I submittals.

Response. A two-phased application system, such as the one

established by NY, is discussed in EPA's first ``White Paper,'' dated

July 10, 1995. This guidance document provides that permitting

authorities have considerable flexibility in initially processing the

large amount of applications over a 3-year period, and determining

application completeness pursuant to 40 CFR Sec. 70.5(c). It further

discusses the need to balance the receipt of information to support

timely permit issuance versus the workload associated with managing and

updating the initially submitted information. The White Paper allows

that permitting authorities may implement a two-phased permit

application process during the transition period, first providing for

submittal of an administratively complete application and followed, at

the appropriate time, with a complete application that will ensure

issuance of a draft Title V permit. Furthermore, this EPA guidance

document states that permitting authorities must award the application

shield if the source submits a timely application pursuant to 40 CFR

Sec. 70.5(c).

The Phase I application requirement developed by NY for use during

its

[[Page 57591]]

transition period meets the minimum information submittal requirements

delineated at 40 CFR Part 70 and EPA's White Paper. It should be noted,

however, that not all Title V-affected sources will need to file a

Phase I application. If a source is required, pursuant to NY's

transition plan, to apply during the first year after program approval,

then only the Phase II application need be submitted. The Phase I

application is only to be used by those sources whose permit

applications are due subsequent to the first year after program

approval.

Finally, it should be noted that an application shield (see 40 CFR

Secs. 70.5(a)(2) and 70.7(b)) should not be confused with a permit

shield (see 40 CFR Sec. 70.6(f)). An application shield provides, in

general, that if an affected source submits a timely and complete Title

V application, then that source's failure to have a valid permit is not

a violation of the operating permits program. A permit shield provides,

in general, that a source's compliance with the conditions of its

permit constitutes compliance with any applicable requirements as of

the date of permit issuance.

f. Professional Engineers Certification. The commenter believes

that NYSDEC should retain the former requirement that permit

application submittals be certified by a licensed professional

engineer, in addition to the requirement of certification by a

responsible official, to ensure the quality and accuracy of the

information submitted.

Response. The requirement for a professional engineer's

certification is discretionary on the part of the permitting authority.

Lack of such a requirement in a Title V program is not an issue

relating to program approval.

g. Incorporation of ``State-only'' Requirements. The commenter

opposes a provision in 6 NYCRR Part 201-6.6(a)(2), which allows a

source to delay incorporating State-only requirements into its Title V

permit until the expiration of an existing State permit held by the

source, if the State permit contains solely State-only requirements.

Response. This section of NY's rules does not affect the

requirement of 40 CFR Part 70 that a Title V operating permit must

include all ``applicable requirements'' (State-only requirements are

not ``applicable requirements'' and, as such, do not fall under the

purview of EPA review of Title V program approvability). Because EPA

cannot base its review for approvability of State program submittals on

criteria not required by Part 70, this comment will not change EPA's

decision to approve the NY program on an interim basis.

h. Special Treatment Under 201-6.3(c). The commenter poses a

question as to which sources are being afforded ``special treatment,''

as defined at 6 NYCRR Part 201-6.3(c), during the transition period,

and what is the meaning of, and justification for, such treatment.

[Specifically, this provision states that the 18-month timeframe for

permit issuance does not apply to Title V applications that are

afforded special expedited review during the transition period.]

Response. The purpose of this NY State provision is to

differentiate between initial permit issuance (i.e., permits issued

during the 3-year transition period) and all permits issued thereafter.

In accordance with the requirements of Title V, all permits must be

issued within 18-months of receipt of a complete application (see 40

CFR Sec. 70.7(a)(2)), with the exception of those permits issued during

the transition period. During this transition period, Part 70 provides

for initial permit issuance over a 3-year period from the date the

program becomes effective, with approximately one third of the total

number of permits issued each year (see 40 CFR Sec. 70.4(b)(11)). This

reflects the ``special treatment'' that NY is affording sources during

the transition period; as such, this State provision conforms to the

requirements of Title V and 40 CFR Part 70.

i. Public Review When NY is an ``Affected State''. The commenter

states that the NYSDEC has not made any plans to notify the affected

public when NY receives notice of a permitting action from an adjacent

State. The commenter further suggests that, in these situations, NY

request that the adjacent State publish a notice of the permitting

action in a widely circulated newspaper.

Response. Title V and 40 CFR Part 70 only require that permitting

authorities notify other affected States of permitting actions.

Although there is no requirement to provide public notification in

another State, oftentimes, the public notice for the permitting action

being processed in the adjacent State will be circulated over the State

boundaries into the ``affected'' State (i.e., newspaper circulation, if

that is the method used, usually crosses State lines). It should also

be noted that, in accordance with the provisions of 40 CFR 70.7(h)(1),

anyone can request to be placed on the mailing list (i.e., a list of

``interested persons'') developed for the operating permits program by

the permitting authority, and such a request can be made to any

permitting authority. In any case, the public notification and

participation procedures implemented under NY's program meet the

requirements of Title V.

j. Exempt and Trivial Activities. The commenter requested that

NYSDEC provide scientific analysis that supports the identification in

6 NYCRR Part 201-3 of exempt and trivial activities. The commenter

further notes that these regulations include exemptions entirely new to

Part 201, and activities not provided for in EPA's ``White Paper.''

Response. Exempt and trivial activities are allowed for under the

Title V program, and are expounded upon in EPA's first White Paper.

During its review of the NY program, EPA reviewed the State's list of

exempt and trivial activities and determined that the lists comply with

the requirements and general intent of the provisions of the Title V

program. This list can only be revised by NY through the rulemaking

process. With respect to the listing of trivial activities provided in

EPA's White Paper, it was noted therein that this was not an all-

inclusive, comprehensive list, but a ``starting-point'' that permitting

authorities can supplement in their own programs. In addition, there

exists a ``gatekeeper'' for these listed activities in NY's rule that

precludes any of the activities listed from being considered as exempt

or trivial if such activities are subject to an applicable requirement.

EPA's review, together with this gatekeeper, are sufficient to

determine that the NY program is approvable with respect to this issue.

k. Insignificant Emission Levels. The commenter requested that

NYSDEC provide scientific analysis that supports the listing of

insignificant emission levels at 6 NYCRR Part 201-6.3(d)(7).

Response. The insignificant emission levels established by NY at 6

NYCRR Part 201-6.3(d)(7) conform to National EPA guidance on

establishing such levels and, as such, are approvable.

l. Operational Flexibility. The commenter states that NYSDEC

should, under the operational flexibility provisions of 6 NYCRR Part

201-6.5, prohibit the trading of toxic air pollutants, or trading that

would directly effect exposing employees to higher concentrations of a

particular pollutant.

Response. Operational flexibility, such as the flexibility

delineated under NY's program at 6 NYCRR Parts 201-6.5(f) (3) and (4),

is provided for by the Title V program. Specifically, 40 CFR

Sec. 70.4(b)(12)(iii), which corresponds to NY's regulations at 6 NYCRR

Part 201-6.5(f)(4), allows for the trading of any regulated pollutant,

as long as no applicable requirements are

[[Page 57592]]

contravened. The NY program includes such a gatekeeper. Trading of

toxic air pollutants cannot normally be achieved via the provision

listed at 6 NYCRR Part 201-6.5(f)(3), because this provision only

allows trades to occur if such trades are allowed by the SIP.

m. Operational Flexibility Protocol. The commenter requested that

NYSDEC drop the provision at 6 NYCRR Part 201-6.5(f)(2), which allows

an applicant to propose incorporation of a protocol to evaluate changes

for compliance with applicable requirements. Descriptions or

definitions relating to such protocols or their approval procedures are

not contained in Part 201.

Response. This provision in NY's rule is an additional provision

that the State has incorporated into its program. It is not

specifically addressed in 40 CFR Part 70, nor is it precluded by those

federal regulations. NY would have to set the procedures for approval

of such protocols as part of the program implementation.

C. Final Action

The EPA is promulgating interim approval of the operating permits

program submitted by NY on November 12, 1993, as supplemented on June

17, 1996, and June 27, 1996. Among other things, the State has

demonstrated that the program substantially meets the minimum

requirements for an interim State operating permits program as

specified in 40 CFR Part 70, and as discussed in EPA's Guidance

entitled ``Interim Title V Program Approvals'' issued by John S. Seitz,

Director, Office of Air Quality Planning and Standards on August 2,

1993. This interim approval, which may not be renewed, extends until

December 7, 1998. Under the approved interim operating permits program,

NY may issue operating permits pursuant to Title V of the Act to all

major stationary sources, and to certain other sources, for the

duration of this approval. During this interim approval period, the

State is protected from sanctions, and EPA is not obligated to

promulgate, administer and enforce a federal operating permits program

in NY. Permits issued under a program with interim approval have full

standing with respect to Part 70, and the one-year time period for

submittal of permit applications by subject sources begins upon the

effective date of this interim approval, as does the 3-year time period

for processing initial permit applications. In order to ensure that a

fully approved program will be in place by the expiration date of the

interim approval, NY must submit a modified program to EPA by June 8,

1998 that addresses the following deficiencies (for additional

discussion of these deficiencies, refer to the July 30, 1996 Federal

Register document, 61 FR 39617):

1. Regulated Air Pollutant

NY's definition of `Regulated Air Pollutant' in 6 NYCRR Part

200.1(bq) must be changed to be made consistent with the definition in

40 CFR 70.2 (unless, as described in the above-cited Federal Register

document, the Part 70 regulations are revised in a way that would make

this NY provision acceptable, prior to the time that NY State's full

program submittal is due). The definition in 40 CFR part 70 currently

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 * * *''. NY's

definition of regulated air pollutant only includes hazardous air

pollutants, which the State defines by providing a list of the 112(b)

pollutants. Therefore, NY must include in its definition not only the

section 112(b) hazardous air pollutants, but also pollutants regulated

under section 112(r) of the Act.

2. Enforcement Discretion

NY must revise its rules at 6 NYCRR 201-6.5(c)(3)(ii) to clarify

that the discretion to excuse a violation under 6 NYCRR Part 201-1.4

will not extend to federal requirements, unless the specific federal

requirement provides for affirmative defense during start-ups,

shutdowns, malfunctions, or upsets.

3. Alternative Emission Limits

NY must change its provision at 6 NYCRR Part 201-6.5(a)(1)(ii), so

that it is equivalent to 40 CFR 70.6(a)(1)(iii). That is, the State

provision should be revised to require that permits will only include

alternative emission limitations if provided for in the SIP and if the

alternative emission limit is determined to be equivalent to the limit

contained in the SIP.

4. Operational Flexibility

NY must add to its program the operational flexibility provisions

provided for by section 502(b)(10) of the Act. However, as discussed in

the above-cited Federal Register document, NY may not need to make such

changes if revisions to 40 CFR Part 70 are promulgated prior to NY's

full program submittal, and such Part 70 revisions would not require

the State to provide for this type of operational flexibility.

5. Definition of Major Source

NY must revise its definition of major source to be consistent with

the definition in 40 CFR part 70, as it relates to accounting for

fugitive emissions to determine the applicability of section 111

sources. As noted in the July 30, 1996 Federal Register document, this

NY definition need not be revised if the Part 70 regulations are

changed in a way that would make this NY provision acceptable, and such

change occurs prior to the time that NY State's full program submittal

is due.

6. Emissions Trading

NY must include the two gatekeepers listed in 40 CFR 70.4(b)(12) in

its regulations at 6 NYCRR Parts 201-6.5 (f)(3) and (f)(4).

Specifically, NY must add to its rule at 6 NYCRR Part 201-6.5(f)(3) the

gatekeeper which states that changes under this provision 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. In addition,

NY must supplement its rule at 6 NYCRR Part 201-6.5(f)(4) by adding the

two gatekeepers of 40 CFR 70.4(b)(12) which state 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 and the changes

do not exceed the emissions allowable under the permit.

7. Minor Permit Modification Procedures

New York must revise its rule at 6 NYCRR Part 201-6.7(c)(2) to

provide that minor modification procedures can only 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'' (the language in quotations must be

added). This change must be made unless revisions to 40 CFR part 70 are

promulgated prior to NY's full program submittal, and such revisions

would exclude this issue from affecting full program approval.

8. Petitions for Judicial Review

In order for NY to be consistent with 40 CFR part 70 and receive

full program approval, the State must adopt a 90 day statute of

limitations, through rulemaking, for judicial review of final permit

actions, rather than its current 120-day review period. As discussed in

the July 30, 1996 Federal Register document, this change may not be

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required if the regulations at 40 CFR Part 70 are revised in a way that

would make this NY provision acceptable, and such a revision would

occur prior to the time that NY State's full program submittal is due.

If NY fails to submit a complete corrective program for full

approval by June 8, 1998, EPA will start an 18-month clock for

mandatory sanctions. If the State then fails to submit a complete

corrective program before the expiration of that 18-month period, EPA

will apply sanctions as required by section 502(d)(2) of the Act, which

will remain in effect until EPA determines that NY has corrected the

deficiencies by submitting a complete corrective program.

If EPA disapproves NY's complete corrective program, EPA will apply

sanctions as required by Section 502(d)(2) on the date 18 months after

the effective date of the disapproval unless, prior to that date, NY

has submitted a revised program and EPA has determined that it

corrected the deficiencies that prompted the disapproval.

In addition, discretionary sanctions may be applied where warranted

any time after the expiration of an interim approval period if NY has

not timely submitted a complete corrective program or EPA has

disapproved its submitted corrective program. Moreover, if EPA has not

granted full approval to the NY program by the expiration of this

interim approval, EPA must promulgate, administer and enforce a federal

operating permits program for the State upon interim approval

expiration.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of Section 112 standards as promulgated by the EPA as they apply to

Part 70 sources. Section 112(l)(5) requires that the State's program

contain adequate authorities, adequate resources for implementation, an

expeditious compliance schedule, and adequate enforcement ability,

which are also requirements under 40 CFR part 70. In a letter dated

June 18, 1996, NY requested delegation through section 112(l) of all

existing section 112 standards for both Part 70 sources and those not

subject to the Part 70 requirements and infrastructure programs, with

the following exceptions. NY does not intend to take delegation of

either the section 112(r) program or the National Emission Standards

for Hazardous Air Pollutants for Asbestos, Standards for Demolition and

Renovation; however, the State will still implement the appropriate

permit conditions relevant to the risk management program in part 70

permits. With respect to future 112 standards, the State intends to

accept delegation of most, if not all, of the standards. This will be

accomplished either through incorporation by reference of the federal

regulations into State regulations, as expeditiously as possible, or

via case-by-case program substitution. In the June 18, 1996 letter, NY

demonstrated that it has sufficient legal authorities, adequate

resources, and adequate enforcement ability for implementation of

Section 112 of the Act for all Part 70 sources. Therefore, the EPA is

also promulgating interim approval under Section 112(l)(5) and 40 CFR

63.91 to grant NY approval for its program mechanism for receiving

delegation of all existing and future Section 112(d) standards for all

Part 70 sources, and Section 112 infrastructure programs that are

unchanged from federal rules as promulgated.

In its June 18, 1996 letter, NY also requested delegation of all

existing New Source Performance Standards promulgated pursuant to

Section 111 of the Act, except for 40 CFR part 60, subpart AAA,

Standards of Performance for New Residential Wood Heaters. While EPA

proposed to approve this request in the July 30, 1996 Federal Register

document, we are deferring a final decision on this matter until a

later date.

III. Administrative Requirements

A. Docket

Copies of the NY submittal and other information relied upon for

the final interim approval, including the public comments received and

reviewed by EPA on the proposal, are contained in the docket maintained

at the EPA Region 2 Office. The docket is an organized and complete

file of all the information submitted to or otherwise considered by EPA

in the development of this final interim approval. The docket is

available for public inspection at the location listed under the

ADDRESSES section of this document.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under Section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy 40 CFR Part 70. Since these operating permits

programs were already adopted at the State level, and today's action

does not introduce any additional requirements that are new to the

State program already in effect, no significant impact on a substantial

number of small entities is expected to occur as a result of today's

action. Therefore, I certify that this rule will not have a significant

impact on a substantial number of small entities.

D. Unfunded Mandates

Under Section 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

annual 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 of the Unfunded Mandates Act

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated today

does not include a Federal mandate that may result in estimated annual

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 Federal requirements. Accordingly, no additional costs

to State, local, or tribal governments, or to the private sector,

result from this action.

E. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(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.

[[Page 57594]]

Dated: October 22, 1996.

William J. Muszynski,

Acting Regional Administrator.

Part 70, title 40 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 the entry for New

York in alphabetical order to read as follows:

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

Permit Programs

* * * * *

New York

(a) The New York State Department of Environmental Conservation

submitted an operating permits program on November 12, 1993,

supplemented on June 17, 1996 and June 27, 1996; interim program

approval effective on May 7, 1999; interim program approval expires

December 7, 1998.

(b) [Reserved]

* * * * *

[FR Doc. 96-28539 Filed 11-6-96; 8:45 am]

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