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Citation: 66 Fed. Reg. 63175 2001

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### Federal Register/Vol. 66, No. 234/Wednesday, December 5, 2001/Rules and Regulations 63175

rule merely approves existing requirements under state law, and does
not alter the relationship or the distribution ofpower 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 ofChildren 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, orUse" (66 FR 28355, May 22, 2001), because it is not a significantly 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 etseq., 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

aperson is not required to respond to,

a collection ofinformation unless it displays a currentlyvalid OMB control number.

In reviewing State operating permit programs submitted pursuant totitle V ofthe Clean Air Act, EPA will approve State programs provided that they meet the requirements ofthe Clean Air Act andEPA's regulations codified at 40 CFR part 70. In this context, inthe absence of a prior existing requirement for the State touse voluntary consensus standards (VCS), EPAhas no authority
to disapprove a State operating permit program for failure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews an operating permit program, touse VCS in place of

a State program that otherwise satisfies the provisions ofthe Clean Air Act. Thus, the requirements ofsection 12(d) ofthe 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. 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 arule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal Register. This actionis not a "major rule" as defined by 5U.S.C. 804(2). This rule will be effective on November 30, 2001.

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by February 4, 2002. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFRPart 70

Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting andrecordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.
Dated November 29, 2001. Lawrence E.Starfield, ActingDeputyRegional Administrator, Region 6.

For the reasons set out in the preamble, Appendix A ofpart 70 is amended as follows:

PART 70-[AMENDED]

1.The authority citation for part 70 continues to read asfollows:

Authority:42 U.S.C. 7401 et seq.
2.Appendix A to part 70 is amended under the entry for Oklahoma byadding paragraph (b)toread as follows: Appendix A toPart70-Approval Status of State andLocal Operating Permits Programs

Oklahoma

*k *k *

(b)The Oklahoma Department of Environmental Quality submitted program revisions on July 27, 1998. Therule revisions adequately addressed the conditions ofthe interim approval effective onMarch 6, 1996, and which will expire on December 1,2001. The State is hereby granted final full approval effective onNovember 30, 2001.

[FR Doc. 01-30149 Filed 12-4-01; 8:45 am]

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 70 [AZ062-OPP; FRL-7113-4]

Clean Air Act Full Approval ofthe Operating Permits Program; Arizona Department of Environmental Quality, Maricopa County Environmental Services Department, Pima County Department of Environmental Quality, AZ
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.
SUMMARY: EPA istaking final action to fully approve the operating permits programs submittedby the State of Arizona (collectively "the Arizona programs") onbehalf ofthe Arizona Department ofEnvironmental Quality ("ADEQ" or "State"), Maricopa County Environmental Services Department ("MCESD" or "Maricopa"), and Pima County Department ofEnvironmental Quality, Arizona ("PDEQ" or "Pima"). The Arizona programs were submitted in response to the directive in the 1990 Clean Air Act (CAA) Amendments that permitting authorities develop, and submit to EPA, programs for issuing operating permits to allmajor stationary

sources and to certain other sources within the permitting authorities' jurisdiction. On October 30, 1996, EPA granted interim approval to the ADEQ, MCESD and PDEQ operating permits programs. These agencies revised their programs to satisfy the conditions ofthe interim approval, and EPAproposed full approval ofthe ADEQ, MCESD, and PDEQprograms in the FederalRegister

on October 2, 2001, October 18, 2001, and September 10, 2001, respectively. EPAreceived three comments on our proposed full approval ofthe ADEQ program and one comment on the Maricopa program. EPA's responses are included in Section II ofthis action.

This action promulgates final full approval ofthe ADEQ, MCESD and PDEQ operating permits programs. EFFECTIVE DATE: This rule is effective on November 30, 2001. ADDRESSES: Copies ofthe ADEQ, MCESD, and PDEQ submittals 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 9, 75 Hawthorne Street, San Francisco, California 94105. You may also see copies ofthe submitted title V programs for each ofthe respective agencies at the following locations:

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### No. 234/Wednesday, December 5, 2001/Rules and Regulations

(1)ADEQ-Arizona Department of

Environmental Quality, 3033 North central Avenue, Phoenix, Arizona 85012-2809. (2)MCESD-Maricopa County

Environmental Services Department, Air Quality Division, 1001 North Central Avenue, Suite 201, Phoenix, Arizona 85004. (3)PDEQ-Pima County Department of

Environmental Quality, 130 West Congress Street, Tucson, Arizona 85701 FOR FURTHER INFORMATION CONTACT: Emmanuelle Rapicavoli, EPARegion 9,
at415-972-3969 or rapicavoli.emmanuelle@epa.gov.
SUPPLEMENTARY INFORMATION: This section contains additional information about our final rulemaking, organized as follows:
I.Background on the ADEQ,MCESD, and

PDEQ Operating permits programS II.Comments received byEPAon our

proposed rulemaking and EPA's responses III. EPA's final action.

I. Background onthe ADEQ, MCESD, andPDEQ OperatingPermitsPrograms

The Clean Air Act (CAA) Amendments of 1990 required all state and local permitting authorities to develop operating permits programs that
meet certain federal criteria. The ADEQ, MCESD, and PDEQ operating permits programs were submitted in response to this directive. Because the Arizona programs substantially, but not fully,
met the requirements ofpart 70, EPA granted interim approval tothe programs in a rulemaking published on October 30, 1996. See 61 FR 55910. The interim approval notice described the conditions thathad tobe met in order for the Arizona programs to receive full approval.

The State, Maricopa and Pimarevised their title V programs to address the conditions ofthe interim approval. EPA promulgated proposals to approve the ADEQ, MCESD, andPDEQprograms on October 2, 2001 (66 FR 50136), October 18, 2001 (66 FR 52882), and September 10, 2001 (66 FR 46972), respectively.

II. Comments Received by EPAon Our Proposed Rulemaking and EPA's Responses

EPA received three comment letters

on our proposed full approval ofthe ADEQ program and one comment letter

onthe Maricopa program. With one exception, all ofthe comment letters focused exclusively onthe need to revise the major source definition in Part 70. EPA published a final rule addressing this issue on November 27, 2001 and therefore EPA isnot responding to those comments. EPA's response to the remaining comments on the ADEQprogram, submitted byThe Arizona Center for Law in the Public Interest (ACLPI), is set outbelow.

1.ExcessEmissionsProvision

ACLPI objects to language in R18-2- 310 that establishes an affirmative defense for violations occurring during startup and shutdown. EPA has proposed to approve the removal of R18-2-310 from the title V program:

In addition toproposing to approve the rules listed in Table 1, EPAis also proposing to approve the removal of R18-2-310, Excess Emissions, from the State's title V program. See 66 FR 50138, October 2, 2001. Therefore, EPA construes ACLPI's
comment as supporting itsproposed action.

2.Reference TestMethods andCredible Evidence

ACLPI contends that ADEQ's title V permits routinely require only specific
test methods and donot allow for additional credible evidence to be presented to prove, or disprove, an alleged violation. They state that the State's operating permit program does
not appear to include EPA's credible evidence rule. ACLPI concludes that, before Arizona's title V program is fully approved, ADEQ must make the necessary changes to include the Credible Evidence Rule.

EPA agrees with the commenter's point that state implementation plans andpermits shouldnot bar the use of credible evidence for determining whether a source is in compliance. We disagree, however, with the commenter's suggestion that apermit condition thatrequires a source to monitor in accordance with a specific method bars the use ofadditional credible evidence in determining compliance.

The preamble toEPA's Credible Evidence Revisions states thatthe "regulation merely removes [from 40 CFR parts 51, 52, 60 and 61] what some have construed to be aregulatory bar to the admission ofnon-reference test data
to prove a violation ofan emission standard." See 62 FR 8315, February 24, 1997. One aspect ofEPA's review oftitle V programs andpermits includes a determination that no bars to enforcement are included. For example, EPA would consider language such as "compliance shall be determined by test method X" asproblematic. Contrary to ACLPI's position, neither the CAA nor EPA's regulations require part 70 programs orpermits to include specific references to credible evidence. The presumption isthat, absent language precluding its use, credible evidence

canbe used. ACLPI argues, for example, thatthe North Star Steel draft permit requires thatthe permittee shall perform initial and annual performance tests to determine opacity using EPAMethod 9. ACLPI suggests thatthis condition bars the use ofcredible evidence to prove or disprove an alleged violation. EPA disagrees. Permits mustimpose monitoring requirements on sources and, in order to be effective, must specify the type ofmonitoring a source must undertake. See 40 CFR 70.6(a)(3). The language in the draftNorth Star Steel permit does not barthe use of other credible evidence. Itmerely sets outthe source's monitoring obligations.EPA understands thatADEQ shares our interpretation.
3.Arizona'sConfidentiality Provision

ACLPI commented that Arizona's operating permits program is not approvable because it does not adequately satisfy federal standards and thatA.R.S. 49-432 must be amended to accommodate the public's right to have

access to information. The opportunity for public comment on EPA'sproposed action to grant full approval ofthe ADEQprogram was limited to the issue ofwhether ADEQ corrected the items EPAhad identified as program deficiencies duringthe interim approval process. Thus, EPA'sproposal to grant full approval did not include ADEQ's confidentiality provisions, which EPA had previously approved aspart of ADEQ's program. See 61 FR 55915, October 30, 1996. The comment is therefore beyond the scope ofthis rulemaking. However, EPA will be responding to this same comment, which was alsoraised byACLPI during the 90-day public comment period, under separate cover byDecember 14, 2001.

4.Definitionof MajorSource

ACLPI comments that EPA cannot lawfully approve Arizona's major source definition unless EPA completes the rulemaking process that will change the definition in part 70. EPA agrees with ACLPI and in fact took thatposition in the notice proposing full approval of ADEQ's program. We stated that our full approval ofthe ADEQ program was contingent on EPA finalizing changes to the major source definition that would result in ADEQ's major source definition being consistent with part 70. See 66 FR 50138, October 2,2001. EPA finalizedthese changes in a rule signed by the Administrator on November 19, 2001, and publishedin the Federal 63176 Federal Register/Vol. 66,

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### Federal Register/Vol. 66, No. 234/Wednesday, December 5, 2001/Rules and Regulations 63177

Register on November 27, 2001 (See 66 FR 59161).

5. FugitiveEmissionsFromAgricultural Equipment

ACLPI states that there is no legitimate reason to exclude agricultural equipment from regulation under title V and therefore, EPA cannot fully approve Arizona's title V program until A.R.S. §49-426(B) is amended to require that agricultural sources count fugitive emissions.

Arizona's program does not exclude agricultural equipment from regulation under title V. As noted in EPA's notice granting interim approval ofADEQ's title V program, the Arizona Attorney General submitted an opinion that the legislature in no way sought to exempt any major sources when itgranted an exemption to agricultural equipment used in normal farm operations. The opinion went on to state that this was clarified by AAC R18-2-302(c)(3), which provides that agricultural equipment used in normal farm operations does not include equipment that requires a permit under title V or is subject to a standard under 40 CFR parts 60 or 61. EPA deferred to that opinion, but noted that ifthere is a successful legal challenge to the ADEQ's regulation, we would revisit this portion ofthe program approval. See 61 FR 55915, October 30, 1996.

Part 70 currently requires that fugitive emissions generated by sources that are subject to a standard promulgated under section 111 or 112 ofthe Clean Air Act
must be included when determining whether a source is major. Sources are alsorequired to count all fugitive emissions ofhazardous air pollutants. Under part 70, fugitive emissions from any agricultural equipment regulated by such standards or that emits hazardous air pollutants must count towards the major source threshold. ADEQ's rules

are consistent withthis approach.

After carefully reviewing and considering the issues raised by the commenter, EPAis taking final action to give full approval to the Arizona operating permits program. III. EPA's FinalAction

A. FullApprovalofOperating Permit Programs

EPA is granting full approval tothe operating permits programs submitted by ADEQ, MCESD, and, Pima based on the revisions submitted for ADEQ on August 11, 1998, May 9, 2001, and September 7,2001, for MCESD on September 7,2001, and for PDEQ on May 28, 1998 andNovember 9, 2001, which satisfactorily address the program deficiencies identified in EPA's October 30, 1996 interim approval (61 FR 55910). EPA is also approving, astitle V operating permits program revisions, additional changes made tothe Arizona programs. These deficiency corrections and additional program revisions are described in detail in the Federal Register notices proposing full approval ofthe Arizona programs and their accompanying technical support documents.

In our proposed approvals ofthe Arizona programs, we noted thatADEQ, MCESD, andPDEQhad revised their major source definition in anticipation ofEPAfinalizing apreviously proposed change (59 FR 44460; August 29, 1994)
to the major source definition in part 70. Paragraph (c) ofArizona programs' definition ofmajor source lists source categories that must count fugitives. Subparagraph (xxvii)has been modified
to read: "All other stationary source categories regulated by a standard promulgated as ofAugust 7, 1980 under section 111 or 112 ofthe Act, but only with respect tothose air pollutants that have been regulated for that category." Emphasis added. The addition ofthis 1980 cutoff date restricts the types of

sources that arerequired to count fugitives towards the major source threshold. Atthe time ofour proposed full approvals this change was inconsistent with part 70. Because EPA's proposed revision to the major

source definition would incorporate the 1980 cutoff date we proposed to approve the ADEQ, MCESD, and PDEQ definition ofmajor source contingent on EPA finalizing our proposed change to part 70. On November 19, 2001, the Administrator signed a rulemaking package that finalizedEPA's change to paragraph (2)(xvii) ofthe part 70 definition ofmajor source. The revised paragraph nowreads, "(xvii) Any other stationary source category, which as of August 7, 1980 isbeing regulated by a standard promulgated under section 111

or 112 ofthe Act." This change means thatpart 70 nolonger requires states to provide that sources in categories subject to standards under sections 111

or 112 promulgated after August 7, 1980 must include fugitive emissions in determining major source status under section 302 or part D oftitle I ofthe Clean Air Act. As a consequence ofthis change to part 70, the definition of major source in the Arizona programs is

no longer inconsistent with part 70 and is now fully approvable.

In addition to the above described change, EPA has deleted the phrase "but onlywith respect to those air pollutants thathave been regulated for that category" fromparagraph (c)(xvii) ofthe part 70 definition ofmajor source. EPA proposed to delete this phrase in its 1995 supplemental proposal to revise part 70. See 60 FR 45530, August 31, 1995. States, including the Arizona agencies, must revise theirpart 70 programs accordingly, and submit the revision to EPA within 12 months ofthe date ofpublication ofthe final rule. If

a state can demonstrate that additional legal authority is needed,the deadline for submittal of a revised program can be extended to 24 months after EPA's rule is published.

For more details on these changes to the part 70major source definition, please see the notice signed by the Administrator on November 19, 2001 and published in the Federal Register

on November 27, 2001 (See 66 FR 59161). Interested parties can download the final rule fromEPA's website onthe Internet under recent actions atthe following address: http//www.epa.gov/
ttn.oarpg/ramain .html. The rules for which we are granting full approval are listed in the tables below.

TABLE 1.- ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY

Rule No. Rule title and specific sections being approved Effective Submitted

R18-2-101 (61)

................................. Definitions- definition of "Major source" only

................................................ 6/4/98 8/11/98 R1 8-2-304

......................................... Permitapplication processing procedures

..................................................... 12/20/99 5/9/01 R18-2-306

......................................... Permitcontents

...................................................... 6/4/98 8/11/98 R18-2-320

......................................... Significant Permit Revisions

.............................. ........................... ........... 12/20/99 5/9/01 R18-2-331

......................................... M aterial Permit Conditions

............................................ .................... 6/4/98 8/11/98

In addition to proposing to approving the rules listed in Table 1, EPA is also removing R18-2-310, Excess Emissions,
from the State's title V program.

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TABLE 2.-MARICOPA COUNTY ENVIRONMENTAL SERVICES DEPARTMENT

Rule No. Rule title and specific sections proposed for approval Adopted Submitted
Regulation I,Rule 100

....................... G eneral Provisions and Definitions

................................................................ 8/22/01 9/7/01 * The following provisions from 

### §200, Definitions: 

### §200.26 "Building,

Structure, Facility, or Installation" 

### §200.58 "Insignificant Activity" §200.60 "Major Source" §200.107 "Trade Secret" §200.108 "Trivial Activity" 

### * § 402, Confidentiality of Information * §500 Monitoring of Records Regulation I,Rule 130

....................... Emergency Provisions

................................................. ..................... 7/26/00 9/7/01 Regulation II, Rule 200

...................... PermitRequirements

........................... . ....................................... 8/22/01 9/7/01 * §308-Standards for Applications * §312-Transition from Installation and Operating Permit Program to Unitary Permit Program R

egulation II, Rule 210

...................... Title VPermit Provisions

.............................................................................. 2/7/01 9/7/01 * §301.4(h) * §302.1(j) * §302.1(n) 

### * §404-Administrative Permit Amendments * §405.1 * §408-Public Participation A

ppendix D

......................................... Listof Insignificant Activities

.................................................... ............ . 8/22/01 9/7/01 A

ppendix E

......................................... Listof Trivial Activities

....................................................... 8/22/01 9/7/01

TABLE 3.-PIMA DEPARTMENT OF ENVIRONMENTAL QUALITY

Rule No. Rule title and specific sections being approved Adopted Submitted

17.04.340.A. (122)

.............................. Words, phrases, and terms-definition of "Major source" only

..................... 9/11/01 11/9/01 17.04.340.A. (109)

.............................. Words, phrases, and terms-definition of "Insignificant activity" only

........... 4/7/98 5/28/98 17.12.150

............................................ Transition from installation and operating permit program to unitary permit 9/11/01 11/9/01 program. 17.12.160

............................................ Permitapplication processing procedures

..................................................... 4/7/98 5/28/98 17.12.180

............................................ P e

rmitcontents

............................................................................................... 4/7/98 5/28/98 17.12.345

............................................ P ublic notification

....... .............................................. 4/7/98 5/28/98

B. EffectiveDateofFullApproval

EPA isusing the good cause exception under the Administrative Procedure Act (APA)to make the full approval ofthe Arizona programs effective on November 30, 2001. In relevant part, the APA provides thatpublication 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." 5 U.S.C. 553(d)(3). Section 553(b)(3)(B) of the APA provides that good cause may be supported byan agency determination that a delay in the effective date isimpracticable, unnecessary, or contrary to the public interest. EPA finds that itis necessary and in the public interest to make this action effective sooner than 30 days following publication. In this case, EPA believes that itis in the public interest for the Arizona programs to take effect before December 1, 2001. EPA's interim approval ofthe Arizona programs expires on December 1, 2001. In the absence ofthis full approval of Arizona's amended programs taking effect onNovember 30, the federal program under 40 CFR part 71 would automatically take effect in Arizona and would remain in place until the effective date ofthe fully-approved state program. EPAbelieves it is in the public interest for sources, the public, ADEQ, MCESD, andPCDEQto avoid any gap in coverage ofthe Arizona program, as such agap could cause confusion regarding permitting obligations. Furthermore, a delay in the effective date is unnecessary because ADEQ, MCESD, andPCDEQhave been administering the title V permit program for 5years under an interim approval. Through this action, EPAis approving

afew revisions tothe existing and currently operational program. The change from the interim approved program which substantially met the part 70 requirements, to the fully approved program is relatively minor, in particular ifcompared to the changes between a state-established and administered program andthe federal program.
C.ScopeoftheFullApproval

In their program submissions, neither ADEQ, Maricopa County nor Pima Country assertedjurisdiction over Indian country. To date, no tribal government in Arizona has applied to EPAfor approval to administer atitle V program in Indian country within the
state. EPAregulations at 40 CFR part 49 govern how eligible Indian tribes may be approved by EPA to implement a title Vprogram onIndian reservations andin non-reservation areas over which the tribe has jurisdiction. EPA'spart 71 regulations govern the issuance of federal operating permits in Indian country. EPA's authority to issue permits in Indian country was challenged in Michiganv. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its decision in the case, vacating a provision that would have allowed EPA to treat areas over which EPA determines there is a question regarding the area's status as ifit is Indian country, and remanding toEPA for furtherproceedings. EPA will respond to the court's remand and explain EPA's approach for further implementation ofpart 71 in Indian country in a future action.

D.PublicCommentLetters

On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs until December 1, 2001. (65 FR 32035) The action was subsequently

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challenged bythe Sierra Club and the New YorkPublic Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a notice in the Federal Register that would alert the public thatthey may identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in Title V programs and that EPA would respond
to their allegations within specified time periods ifthe comments were made within 90 days ofpublication ofthe Federal Register notice.

Two groups submitted comments on what they believe to be deficiencies with respect tothe Arizona, Maricopa County and Pima County Title V programs. As stated in the Federal Register notice published on October 2, 2001 (66 FR 50136), October 18, 2001 (66 FR 52882), and September 10, 2001 (66 FR 46972) proposing to fully approve Arizona, Maricopa County and Pima County operating permit programs respectively, EPA takes no action on those comments in today's action. Rather, EPA expects to respondby December 14, 2001 to timely public
comments on programs that have obtained interim approval, and by April 1, 2002 to timely comments on fully approved programs. We will publish a notice ofdeficiency (NOD) when we determine that a deficiency exists, or we will notify the commenter in writing to explain our reasons for not making a finding ofdeficiency. In addition, we will publish a notice of availability in the Federal Register notifying the public that we have responded in writing to these comments and how the public may obtain a copy ofour response. An NOD will not necessarily be limited to deficiencies identified by citizens and may include any deficiencies that we have identified through our program oversight. Furthermore, in the future, EPAmay issue an additional NOD ifEPA or a citizen identifies other deficiencies.
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 isnot subject to review bythe Office ofManagement and Budget. Under the Regulatory Flexibility Act (5U.S.C. 601 et seq.)the Administrator certifies thatthis final approval will not have a significant economic impact on a substantial number ofsmall 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 (PublicLaw 104-4) because itapproves pre-existing requirements under state law and does not impose any additional enforceable dutiesbeyond 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 onthe distribution ofpower 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 itwill not have substantial direct effects onthe States,

onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities amongthe various levels ofgovernment, 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 alterthe relationship orthe distribution ofpower 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 ofChildren 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, orUse" (66 FR 28355 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This actionwill not impose any collection ofinformation subject to the provisions ofthe 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

aperson is not required to respond to,

a collection ofinformation unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submittedpursuant totitle V ofthe Clean Air Act, EPA will approve State programs provided that they meet the requirements ofthe Clean Air Act andEPA's regulations codified at40 CFR part 70. In this context, in the absence ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPA has no authority
to disapprove a State operating permit program forfailure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews an operating permit program ,to use VCS in place of

a State program that otherwise satisfies the provisions ofthe Clean Air Act. Thus, the requirements of section 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. section 801 et seq., as addedby the Small Business Regulatory Enforcement Fairness Act of1996, generally provides thatbefore 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 ofthe Congress and to the Comptroller General ofthe United States. EPA will submit areport containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe 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 willbe effective on November 30, 2001.

Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by February 4, 2002. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure, Airpollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

Dated:November 28, 2001. Wayne Nastri, Regional Administrator,Region9.

40 CFR part 70, chapter I, title 40 of the Code ofFederal Regulations is amended as follows: Federal Register/Vol. 66,

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### No. 234/Wednesday, December 5, 2001/Rules and Regulations

PART 70-[AMENDED]

1.The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. 7401, etseq.
2.Appendix A topart 70 is amended by revising paragraphs (a) and (b), and adding paragraph (c)(3) under Arizona
to read as follows: Appendix A to Part70-Approval Status ofState andLocal Operating PermitsPrograms

Arizona

(a)ArizonaDepartment ofEnvironmental Quality:

(1)Submitted on November 15, 1993 and amended on March 14, 1994; May 17, 1994; March 20, 1995; May 4, 1995; July 22, 1996; and August 12, 1996; interim approval effective on November 29, 1996; interim approval expires December 1,2001.

(2)Revisions submitted on August 11, 1998, May 9,2001 and September 7,2001. Full approval is effective onNovember 30, 2001.

(b)Maricopa County Environmental Services Department:

(1)Submitted on November 15, 1993 and amended on December 15, 1993; January 13, 1994;March 9, 1994; and March 21, 1995; July 22, 1996; and August 12, 1996; interim approval effective onNovember 29, 1996; interim approval expires December 1,2001.

(2)Revisions submitted on September 7, 2001. Full approval iseffective on November 30, 2001.

(c)* * * (3)Revisions submitted on May 30, 1998 and November 9,2001. Full approval is effective on November 30, 2001.

[FRDoc. 01-30148 Filed 12-4-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 70 [NY002; FRL-7113-3]

Clean AirAct Final Full Approval of Operating Permit Program; State of New York
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: The EPA is promulgating final full approval ofthe operating permit program submittedby the State ofNew York in accordance with Title V of the Clean Air Act (the Act) and its implementing regulations codified. This approved program allows New Yorkto issue federally enforceable operating permits to all major stationary sources andto certain other sources within the State'sjurisdiction. However, because certain ofthe regulations are emergency rules that will expire onDecember 21, 2001, unless extended, EPA is approving this program only until the expiration date ofthe emergency rules. EPA has proposed approval of permanent rules that are substantively the same asthe emergency rules and the State expects to submitthose rules in final adopted form shortly. Once these rules become effective, EPA will promulgate another final program approval to replace this action. In the interim, the emergency rules will stillbe in effect and, therefore, New York will still have a fully approved program. If EPA has not approved the State's revised permanent rules before the emergency rules expire, New York's title V permit program will expire and the federal program will automatically apply. IfNew York's emergency rules expire as discussed above and a federal program under part 71 takes effect in the state, EPA will provide notice to the public within two weeks ofthe effective date ofthe federal program in a subsequent Federal Register document. Because EPA received adverse
comments onthe proposed action published in the October 25, 2001 Federal Register (66 FR 53966), this action responds to those comments.
EFFECTIVE DATE: November 30, 2001.
ADDRESSES: Copies ofthe State's submittal and other supporting information used in developing this final full approval are available for inspection duringnormal business hours atthe 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: This sectionprovides additional information by addressing the following questions:

1.What is theoperating permit program? 2.What isbeing addressed in this document?

3.What were the concerns raisedby the commenters?

4. What is thepublic's rolein identifying program deficiencies?

5.What are the program changes thatEPA is approving?

6.What is involvedin this final action? 7.What is the scope ofEPA's full approval?

8.What is theeffective date ofEPA's final full approval ofthe State ofNew York title Vprogram? 1. What Is the Operating Permit Program?

Title V ofthe Clean AirAct (theAct) and its implementing regulations at 40 CFR part 70 (part 70) direct all states to develop and implement operating permit programs that meet certain criteria. Operating permit programs are intended to consolidate into single federally enforceable documents all requirements ofthe Act that apply to individual sources. This consolidation ofall ofthe applicable requirements for

a source enables the source, the public, and permitting authorities to more easily determine what requirements of the Act apply and whether the source is complying with them. Sources required to obtain operating permits include "major" sources of air pollution and certain other sources specified in section 501 ofthe Act and in EPA's regulations at 40 CFR 70.3.

The EPA reviews state programs pursuant to titleV ofthe Act andpart 70, which outline the criteria for approval or disapproval. Where a program substantially, but not fully,
meets the requirements ofpart 70, EPA may grant the program interim approval which would be effective for two years. Ifa state does not have in place afully approved program by the time the interim approval expires, the federal operating permit program under 40 CFR part 71 (part71) will automatically take effect. Due tounexpected circumstances that affected states' timeliness in developing fully approvable programs, EPA extended the effective date ofall interim approvals until December 1, 2001. For any state thathas not received full approval from EPA byDecember 1, 2001, its interim approval will then expire and be immediately replaced by the federal part 71 program. All sources subject to the federal program that do
nothave final part 70permits already issued to them by the state will be required to submit a part 71 permit application and the appropriate fees within one year to their respective EPA Regional offices underpart 71.

2. WhatIs BeingAddressedin This Document?

New York State's first version ofits operating permit program substantially, but not fully, met the requirements of part 70; therefore, EPA granted interim program approval onNovember 7, 1996, which became effective on December 9, 1996 (61 FR 57589). Inthe interim approval rulemaking EPA identified eight issues that needed correction before New York wouldbe eligible for final full approval. New York State submitted a corrected program to EPA 63180 Federal Register/Vol. 66,

HeinOnline -- 66 Fed. Reg. 63180 2001