Approval and Promulgation of Implementation Plans; Emission Trade to Meet Reasonably Available Control Technology for the State of New York

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY27-2-181; FRL-6140-3]

Approval and Promulgation of Implementation Plans; Emission Trade

to Meet Reasonably Available Control Technology for the State of New

York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is announcing approval of a revision to the New York

State Implementation Plan for ozone. This revision establishes and

allows an emission trade between Niagara Mohawk Power Corporation and

Champion International Corporation which will result in both sources

meeting the requirements of reasonably available control technology for

oxides of nitrogen. The intended effect of this action is to approve

source-specific permit conditions, requiring the sources to trade

emissions in accordance with requirements of the Clean Air Act, and

resulting in emission reductions which will help toward attaining the

national ambient air quality standards for ozone.

EFFECTIVE DATE: This rule will be effective October 2, 1998.

ADDRESSES: Copies of the state submittals and other information are

available for public inspection during normal business hours, by

appointment, at the Air Programs Branch, U.S. EPA, Region II Office,

290 Broadway, 25th Floor, New York, New York, 10007-1866; as well as

the New York State Department of Environmental Conservation, Division

of Air Resources, 50 Wolf Road, Albany, New York 12233; and the EPA,

Air and Radiation Docket and Information Center, Air Docket (6102), 401

M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Richard Ruvo, Environmental Engineer,

Air Programs Branch, U.S. EPA, Region II Office, 290 Broadway, 25th

Floor, New York, New York 10007-1866; (212) 637-4014.

SUPPLEMENTARY INFORMATION: On April 9, 1996, New York State submitted

special permit conditions for two sources to EPA as a source-specific

revision to the State Implementation Plan (SIP) for ozone. The special

permit conditions are for the Niagara Mohawk Power Corporation and the

Champion International Corporation for an emission trade to meet the

reasonably available control technology for oxides of nitrogen

(NOx RACT) requirements of New York State's Part 227-2. New

York supplemented the April 9, 1996 SIP revision with amended special

permit conditions on February 2, 1998. On May 21, 1998, EPA published

in the Federal Register (63 FR 27897) a Notice of Proposed Rulemaking

(NPR) proposing to approve the special permit conditions as a SIP

revision and providing for a 30-day public comment period. EPA received

no comments regarding the NPR. For a more detailed discussion of New

York's SIP submittal and EPA's action, the reader is referred to the

NPR.

Conclusion

EPA is approving the source-specific permit conditions which allow

Niagara Mohawk Power Corporation and Champion International Corporation

to trade emissions to meet the requirements of NOx RACT. EPA is

approving these special permit conditions, as submitted by the State of

New York on April 9, 1996 and supplemented on February 2, 1998, as part

of the SIP.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not create any new requirements, I certify

that this action will not have a significant economic impact on a

substantial number of small entities. Moreover, due to the nature of

the Federal-State relationship under the Clean Air Act, preparation of

a flexibility analysis would constitute Federal inquiry into the

economic reasonableness of state action. The Clean Air Act forbids EPA

to base its actions concerning SIPs on such grounds. Union Electric

Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Executive Order 13045

The final rule is not subject to E.O. 13045, entitled ``Protection

of Children from Environmental Health Risks and Safety Risks,'' because

it is not an ``economically significant'' action under E.O. 12866.

[[Page 46659]]

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 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 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated 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

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

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 is not required to submit a rule

report regarding today's action under section 801 because this is a

rule of particular applicability. Section 804 exempts from section 801

the following types of rules: rules of particular applicability; rules

relating to agency management or personnel; and rules of agency

organization, procedure, or practice that do not substantially affect

the rights or obligations of non-agency parties. 5 U.S.C. section

804(3).

Petitions for Judicial Review

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 November 2, 1998. 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, Incorporation by

reference, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Dated: July 30, 1998.

Jeanne M. Fox,

Regional Administrator, Region 2.

Part 52, 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 HH--New York

2. Section 52.1670 is amended by adding new paragraph (c)(94) to

read as follows:

Sec. 52.1670 Identification of plan.

* * * * *

(c) * * *

* * * * *

(94) A revision to the State Implementation Plan submitted by the

New York State Department of Environmental Conservation on April 9,

1996 and supplemented on October 17, 1996 and February 2, 1998 that

allows Niagara Mohawk Power Corporation and Champion International

Corporation to trade emissions to meet the requirements of

NOX RACT.

(i) Incorporation by reference:

(A) Permits to Construct and/or Certificates to Operate: The

following facilities have been issued permits to construct and/or

certificates to operate by New York State and such permits and/or

certificates are incorporated for the purpose of establishing an

emission trade to be consistent with Subpart 227-2:

(1) Niagara Mohawk Power Corporation's system-wide utility boilers;

New York special permit conditions and approval letter dated December

14, 1995.

(2) Champion International Corporation's two coal-fired boilers,

Units 1 and 2, Jefferson County; New York special permit conditions and

approval letter dated December 2, 1997.

(ii) Additional information:

(A) Documentation and information to support the emission trade in

three letters addressed to EPA from the New York State Department of

Environmental Conservation and dated as follows:

(1) April 9, 1996 to Mr. Conrad Simon, Director of Air and Waste

Management Division from Deputy Commissioner David Sterman for a SIP

revision for Niagara Mohawk Power Corporation and Champion

International Corporation.

(2) October 17, 1996 letter to Mr. Ted Gardella, EPA from Mr.

Patrick Lentlie, supplementing the SIP revision with the special permit

condition approval letters.

(3) February 2, 1998 letter to Mr. Ronald Borsellino, Chief of the

Air Programs Branch from Mr. Patrick Lentlie, supplementing the SIP

revision with the amended special permit conditions for Champion

International Corporation.

[FR Doc. 98-23332 Filed 9-1-98; 8:45 am]

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