Approval of State Operating Permit, Rule Revision; New Jersey

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NJ002; FRL-6333-8]

Approval of State Operating Permit, Rule Revision; New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final approval.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct

final action on revisions to the New Jersey operating permit rule

(N.J.A.C. 7:27-22.4 and 22.5) as submitted by the State of New Jersey

to fulfill the requirements of Title V of the Clean Air Act. The

revisions extend the deadlines for the last two waves of permit

applications until February 4, 1999 and May 4, 1999, if these

applications are submitted in electronic format.

DATES: This rule is effective on July 6, 1999 without further notice,

unless EPA receives adverse comment by June 3, 1999. If EPA receives

such comment, EPA will publish a timely withdrawal in the Federal

Register informing the public that this rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to:

Raymond Werner, Acting Chief, Air Programs Branch, Environmental

Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York,

New York 10007-1866.

Copies of the State submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th

Floor, New York, New York 10007-1866.

New Jersey Department of Environmental Protection, Air Quality

Permitting Program, Bureau of Operating Permits, 401 E. State Street,

Trenton, New Jersey 08625-0027.

FOR FURTHER INFORMATION CONTACT: Suilin Chan, Air Programs Branch, U.S.

Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th

Floor, New York, NY 10007-1866, (212) 637-4019.

SUPPLEMENTARY INFORMATION:

Background

Pursuant to title V of the Clean Air Act (``the Act'') and its

implementing regulations codified at 40 CFR part 70, EPA granted source

category-limited interim approval to the New Jersey operating permit

program. See, 61 FR 24715 (May 16, 1996). New Jersey's category-limited

interim program became effective on June 17, 1996 and was scheduled to

expire on June 17, 1998, two years after the approval. However, EPA has

recently granted extensions to all interim programs, including that of

NJ's, to June 1, 2000.

The Act states that:

``any person required to have a permit shall, not later than 12

months after the date on which the source becomes subject to a

permit program approved or promulgated under this title, or such

earlier date as the permitting authority may establish, submit to

the permitting authority a compliance plan and an application for a

permit signed by a responsible official, who shall certify the

accuracy of the information submitted.'' See, 40 CFR section 70.5.

New Jersey's operating permit rule contains application submittal

deadlines established for different source categories. Under the rule,

applications are submitted to the New Jersey Department of

Environmental Protection (``NJDEP'') at different times in seven waves

as determined by the

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source's Standard Industrial Classification (SIC) Code. The first five

waves of sources are subject to the interim program and the last two

waves will be subject to the full program. Consistent with the Act and

40 CFR part 70, all sources subject to the interim program must submit

their applications by June 17, 1997 (12 months after the program's

effective date) and those subject to the full program must submit by

June 17, 1999 (12 months after the anticipated full program approval

date). Despite two extensions granted to New Jersey for the interim

program, extending the effectiveness of the interim program to June 1,

2000, the application submittal deadline for the remaining two waves of

applications has not changed. See, 63 FR 40053 (July 27, 1998). It

remains June 17, 1999. It should be noted that New Jersey's original

application submittal schedule had required all applications to be

submitted by May 18, 1998, 13 months before the deadline prescribed by

the Act.

State Submittal

To encourage electronic submittal of permit applications, the State

of New Jersey amended its operating permit rule (N.J.A.C. 7:27-22) to

extend the application submittal due dates for sources required to

submit their applications during the last two waves of submittals from

November 15, 1997 to February 4, 1999 and from May 15, 1998 to May 4,

1999, respectively if the applications were submitted in electronic

format. Amendments to N.J.A.C. 7:27-22.4 and 22.5 were proposed on June

2, 1997 and January 20, 1998 and subsequently adopted on October 20,

1997 and May 4, 1998, respectively. On June 11, 1998, New Jersey

submitted a copy of the adopted rules and requested that EPA update New

Jersey's operating permit program to reflect the newly adopted

amendments. The New Jersey submittal included such information as

responses to comments and copies of the adoption notices showing that

the rule adoptions were procedurally correct as required by 40 CFR

Sec. 70.4(b)(2).

Review of State Submittal

The extension sought by the NJDEP affects only the last two waves

of applications. According to New Jersey's operating permit rule, the

original application submittal (paper or electronic) due dates for the

last two waves were November 15, 1997 and May 15, 1998, respectively.

These deadlines still hold for paper submission. However, for those

sources submitting electronically, the amendment allows additional

time. The last two waves may submit electronic applications by February

4, 1999 and May 4, 1999, respectively. Based on New Jersey's interim

program effective date of June 17, 1996, all applications subjected to

the interim program and full program must be submitted by June 17,

1999. Since the amended electronic application submittal deadlines

still fall within the June 17, 1999 due date as required under section

503(c) of the Act and part 70.5(a), EPA finds New Jersey's rule/program

revision approvable.

Conclusion

EPA has evaluated New Jersey's amended operating permit rule and

the request to incorporate the changes into the approved interim

program. EPA has concluded that the amended operating permit rule as

submitted by New Jersey bears no adverse effect on the implementation

or enforcement of the source category-limited interim program which was

originally approved. The New Jersey operating permit program, with the

current amendment, continues to be in compliance with the requirements

of the Act and the part 70 regulations as codified at 40 CFR part 70;

therefore, EPA is approving the amended New Jersey Operating Permit

Rule. Under this approval, New Jersey may extend the permit application

submittal due dates for the sixth and seventh waves until February 4,

1999 and May 4, 1999, respectively.

The granting of final approval to the amended operating permit rule

for the State of New Jersey only changes the application submittal due

dates for certain affected sources. All other aspects of the New Jersey

Operating Permit Program remain fully operational and enforceable. Any

source that fails to comply with the amended application submittal

schedule or any provisions of the approved program may be subject to

N.J.A.C. 7:27-22.3(ll) as well as section 502(a) of the Act. The

federal oversight and sanctions provisions of the final interim

approval as promulgated on May 16, 1996 for the State of New Jersey

remain in full force irrespective of the granting of final approval to

the amended operating permit rule.

The EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the ``Proposed Rules'' section of today's

Federal Register, EPA is publishing a separate document that will serve

as the proposal to approve the State rule revision if adverse comments

are filed. This rule will be effective on July 6, 1999 without further

notice unless the Agency receives adverse comments by June 3, 1999. If

EPA receives adverse comments, EPA will publish a timely withdrawal in

the Federal Register informing the public that the rule will not take

effect. EPA will then address all public comments in a subsequent final

rule based on the proposed rule. The EPA will not institute a second

comment period on this action. Any parties interested in commenting

must do so at this time.

Administrative Requirements

Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the OMB a

description of the extent of EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the

[[Page 23779]]

environmental health or safety effects of the planned rule on children,

and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final approval is not subject to E.O.

13045 because it approves a state program implementing a Federal

regulation, and it is not economically significant under E.O. 12866.

Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statue, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, in a separately identified section of the preamble

to the rule, a description of the extent of EPA's prior consultation

with representatives of affected tribal governments, a summary of the

nature of their concerns, and a statement supporting the need to issue

the regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions.

This final approval will not have a significant impact on a

substantial number of small entities because it does not create any new

requirements but simply allows additional time for the submittal of

electronic applications from major stationary sources. I certify that

this action will not have a significant economic impact on a

substantial number of small entities.

Unfunded Mandates Act

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 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 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.

Submission to Congress and the General Accounting Office

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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by July 6, 1999. 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,

and Reporting and recordkeeping requirements.

Dated: April 19, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

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 new paragraph (b) to

the entry for New Jersey State in alphabetical order to read as

follows:

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

Permit Programs

* * * * *

New Jersey

* * * * *

(b) The New Jersey State Department of Environmental Protection

submitted an operating permits program revision request on June 11,

1998; interim program revision approval effective on July 6, 1999.

* * * * *

[FR Doc. 99-10853 Filed 5-3-99; 8:45 am]

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