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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 of power 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 of Children 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, or Use" (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 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

a person is not required to respond to,

a collection of information unless it

displays a currently valid OMB control

number.

In reviewing State operating permit

programs submitted pursuant to title V

of the Clean Air Act, EPA will approve

State programs provided that they meet

the requirements of the Clean Air Act

and EPA's regulations codified at 40

CFR part 70. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a State operating permit

program for failure to use VCS. It would

thus be inconsistent with applicable law

for EPA, when it reviews an operating

permit program, to use VCS in place of

a State program that otherwise satisfies

the provisions of the Clean Air Act.

Thus, the requirements of section 12(d)

of the National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply.

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. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2). This rule

will be effective on November 30, 2001.

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 February 4, 2002.

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, Reporting

and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated November 29, 2001.

Lawrence E. Starfield,

Acting Deputy Regional Administrator,

Region 6.

For the reasons set out in the

preamble, Appendix A of part 70 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

under the entry for Oklahoma by adding

paragraph (b) to read as follows:

Appendix A to Part 70-Approval

Status of State and Local Operating

Permits Programs

Oklahoma

*k *k *

(b) The Oklahoma Department of

Environmental Quality submitted program

revisions on July 27, 1998. The rule revisions

adequately addressed the conditions of the

interim approval effective on March 6, 1996,

and which will expire on December 1, 2001.

The State is hereby granted final full

approval effective on November 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 of the

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 is taking final action to

fully approve the operating permits

programs submitted by the State of

Arizona (collectively "the Arizona

programs") on behalf of the Arizona

Department of Environmental Quality

("ADEQ" or "State"), Maricopa County

Environmental Services Department

("MCESD" or "Maricopa"), and Pima

County Department of Environmental

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 all major 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 of the

interim approval, and EPA proposed

full approval of the ADEQ, MCESD, and

PDEQ programs in the Federal Register

on October 2, 2001, October 18, 2001,

and September 10, 2001, respectively.

EPA received three comments on our

proposed full approval of the ADEQ

program and one comment on the

Maricopa program. EPA's responses are

included in Section II of this action.

This action promulgates final full

approval of the ADEQ, MCESD and

PDEQ operating permits programs.

EFFECTIVE DATE: This rule is effective on

November 30, 2001.

ADDRESSES: Copies of the 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 of the submitted title V

programs for each of the 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, EPA Region 9,

at 415-972-3969 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 by EPA on our

proposed rulemaking and EPA's responses

III. EPA's final action.

I. Background on the ADEQ, MCESD,

and PDEQ Operating Permits Programs

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 of part 70, EPA

granted interim approval to the

programs in a rulemaking published on

October 30, 1996. See 61 FR 55910. The

interim approval notice described the

conditions that had to be met in order

for the Arizona programs to receive full

approval.

The State, Maricopa and Pima revised

their title V programs to address the

conditions of the interim approval. EPA

promulgated proposals to approve the

ADEQ, MCESD, and PDEQ programs 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 EPA on Our

Proposed Rulemaking and EPA's

Responses

EPA received three comment letters

on our proposed full approval of the

ADEQ program and one comment letter

on the Maricopa program. With one

exception, all of the comment letters

focused exclusively on the 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 is not

responding to those comments. EPA's

response to the remaining comments on

the ADEQ program, submitted by The

Arizona Center for Law in the Public

Interest (ACLPI), is set out below.

1. Excess Emissions Provision

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 to proposing to approve

the rules listed in Table 1, EPA is 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 its proposed

action.

2. Reference Test Methods and Credible

Evidence

ACLPI contends that ADEQ's title V

permits routinely require only specific

test methods and do not 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

and permits should not bar the use of

credible evidence for determining

whether a source is in compliance. We

disagree, however, with the

commenter's suggestion that a permit

condition that requires a source to

monitor in accordance with a specific

method bars the use of additional

credible evidence in determining

compliance.

The preamble to EPA's Credible

Evidence Revisions states that the

"regulation merely removes [from 40

CFR parts 51, 52, 60 and 61] what some

have construed to be a regulatory bar to

the admission of non-reference test data

to prove a violation of an emission

standard." See 62 FR 8315, February 24,

1997. One aspect of EPA's review of title

V programs and permits 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" as problematic. Contrary to

ACLPI's position, neither the CAA nor

EPA's regulations require part 70

programs or permits to include specific

references to credible evidence. The

presumption is that, absent language

precluding its use, credible evidence

can be used. ACLPI argues, for example,

that the North Star Steel draft permit

requires that the permittee shall perform

initial and annual performance tests to

determine opacity using EPA Method 9.

ACLPI suggests that this condition bars

the use of credible evidence to prove or

disprove an alleged violation. EPA

disagrees. Permits must impose

monitoring requirements on sources

and, in order to be effective, must

specify the type of monitoring a source

must undertake. See 40 CFR 70.6(a)(3).

The language in the draft North Star

Steel permit does not bar the use of

other credible evidence. It merely sets

out the source's monitoring

obligations.EPA understands that ADEQ

shares our interpretation.

3. Arizona's Confidentiality Provision

ACLPI commented that Arizona's

operating permits program is not

approvable because it does not

adequately satisfy federal standards and

that A.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's proposed

action to grant full approval of the

ADEQ program was limited to the issue

of whether ADEQ corrected the items

EPA had identified as program

deficiencies during the interim approval

process. Thus, EPA's proposal to grant

full approval did not include ADEQ's

confidentiality provisions, which EPA

had previously approved as part of

ADEQ's program. See 61 FR 55915,

October 30, 1996. The comment is

therefore beyond the scope of this

rulemaking. However, EPA will be

responding to this same comment,

which was also raised by ACLPI during

the 90-day public comment period,

under separate cover by December 14,

2001.

4. Definition of Major Source

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 that position in

the notice proposing full approval of

ADEQ's program. We stated that our full

approval of the 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

finalized these changes in a rule signed

by the Administrator on November 19,

2001, and published in 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. Fugitive Emissions From Agricultural

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 of ADEQ's

title V program, the Arizona Attorney

General submitted an opinion that the

legislature in no way sought to exempt

any major sources when it granted 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 if there is a

successful legal challenge to the ADEQ's

regulation, we would revisit this portion

of the 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 of the Clean Air Act

must be included when determining

whether a source is major. Sources are

also required to count all fugitive

emissions of hazardous 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 with this approach.

After carefully reviewing and

considering the issues raised by the

commenter, EPA is taking final action to

give full approval to the Arizona

operating permits program.

III. EPA's Final Action

A. Full Approval of Operating Permit

Programs

EPA is granting full approval to the

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 and November 9, 2001,

which satisfactorily address the program

deficiencies identified in EPA's October

30, 1996 interim approval (61 FR

55910). EPA is also approving, as title

V operating permits program revisions,

additional changes made to the Arizona

programs. These deficiency corrections

and additional program revisions are

described in detail in the Federal

Register notices proposing full approval

of the Arizona programs and their

accompanying technical support

documents.

In our proposed approvals of the

Arizona programs, we noted that ADEQ,

MCESD, and PDEQ had revised their

major source definition in anticipation

of EPA finalizing a previously proposed

change (59 FR 44460; August 29, 1994)

to the major source definition in part 70.

Paragraph (c) of Arizona programs'

definition of major 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 of August 7, 1980 under

section 111 or 112 of the Act, but only

with respect to those air pollutants that

have been regulated for that category."

Emphasis added. The addition of this

1980 cutoff date restricts the types of

sources that are required to count

fugitives towards the major source

threshold. At the time of our 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 of major source contingent on

EPA finalizing our proposed change to

part 70.

On November 19, 2001, the

Administrator signed a rulemaking

package that finalized EPA's change to

paragraph (2)(xvii) of the part 70

definition of major source. The revised

paragraph now reads, "(xvii) Any other

stationary source category, which as of

August 7, 1980 is being regulated by a

standard promulgated under section 111

or 112 of the Act." This change means

that part 70 no longer 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 of title I of the

Clean Air Act. As a consequence of this

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

only with respect to those air pollutants

that have been regulated for that

category" from paragraph (c)(xvii) of the

part 70 definition of major 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 their part 70

programs accordingly, and submit the

revision to EPA within 12 months of the

date of publication of the 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 70 major 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 from EPA's website on the

Internet under recent actions at the

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 "M ajor source" only ................................................ 6/4/98 8/11/98

R1 8-2-304 ......................................... Perm it application processing procedures ..................................................... 12/20/99 5/9/01

R 1 8-2-306 ......................................... Perm it contents ...................................................... 6/4/98 8/11/98

R 1 8-2-320 ......................................... Significant Perm it R evisions .............................. ........................... ........... 12/20/99 5/9/01

R 1 8-2-331 ......................................... M aterial Perm it C onditions ............................................ .................... 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 ....................... Em ergency Provisions ................................................. ..................... 7/26/00 9/7/01

Regulation II, Rule 200 ...................... Perm it Requirem ents ........................... . ....................................... 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, R ule 210 ...................... Title V Perm it 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 ......................................... List of Insignificant Activities .................................................... ............ . 8/22/01 9/7/01

A ppendix E ......................................... List of 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 ............................................ Perm it application processing procedures ..................................................... 4/7/98 5/28/98

17 .12 .18 0 ............................................ P e rm it co nte nts ............................................................................................... 4 /7/9 8 5 /2 8 /9 8

17.12.345 ............................................ P ublic notification ....... .............................................. 4/7/98 5/28/98

B. Effective Date of Full Approval

EPA is using the good cause exception

under the Administrative Procedure Act

(APA) to make the full approval of the

Arizona programs effective on

November 30, 2001. In relevant part, the

APA provides that publication 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 by an agency

determination that a delay in the

effective date is impracticable,

unnecessary, or contrary to the public

interest. EPA finds that it is necessary

and in the public interest to make this

action effective sooner than 30 days

following publication. In this case, EPA

believes that it is in the public interest

for the Arizona programs to take effect

before December 1, 2001. EPA's interim

approval of the Arizona programs

expires on December 1, 2001. In the

absence of this full approval of

Arizona's amended programs taking

effect on November 30, the federal

program under 40 CFR part 71 would

automatically take effect in Arizona and

would remain in place until the

effective date of the fully-approved state

program. EPA believes it is in the public

interest for sources, the public, ADEQ,

MCESD, and PCDEQ to avoid any gap in

coverage of the Arizona program, as

such a gap could cause confusion

regarding permitting obligations.

Furthermore, a delay in the effective

date is unnecessary because ADEQ,

MCESD, and PCDEQ have been

administering the title V permit program

for 5 years under an interim approval.

Through this action, EPA is approving

a few revisions to the 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 if compared to the changes

between a state-established and

administered program and the federal

program.

C. Scope of the Full Approval

In their program submissions, neither

ADEQ, Maricopa County nor Pima

Country asserted jurisdiction over

Indian country. To date, no tribal

government in Arizona has applied to

EPA for approval to administer a title V

program in Indian country within the

state. EPA regulations at 40 CFR part 49

govern how eligible Indian tribes may

be approved by EPA to implement a title

V program on Indian reservations and in

non-reservation areas over which the

tribe has jurisdiction. EPA's part 71

regulations govern the issuance of

federal operating permits in Indian

country. EPA's authority to issue

permits in Indian country was

challenged in Michigan v. 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 if it is

Indian country, and remanding to EPA

for further proceedings. EPA will

respond to the court's remand and

explain EPA's approach for further

implementation of part 71 in Indian

country in a future action.

D. Public Comment Letters

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 by the Sierra Club and the

New York Public Interest Research

Group (NYPIRG). In settling the

litigation, EPA agreed to publish a

notice in the Federal Register that

would alert the public that they 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 if the comments were made

within 90 days of publication of the

Federal Register notice.

Two groups submitted comments on

what they believe to be deficiencies

with respect to the 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 respond by

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 of deficiency (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 of deficiency. 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 of our

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, EPA may

issue an additional NOD if EPA 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 is not subject to

review by the Office of Management and

Budget. Under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) the

Administrator certifies that this final

approval will not have a significant

economic impact on a substantial

number of small 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

(Public Law 104-4) because it approves

pre-existing requirements under state

law and does not impose any additional

enforceable duties beyond 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 on the

distribution of power 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 it will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, "Federalism"

(64 FR 43255, August 10, 1999). This

rule merely approves existing

requirements under state law, and does

not alter the relationship or the

distribution of power 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 of Children 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, or Use" (66 FR 28355 (May

22, 2001), because it is not a significant

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 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

a person is not required to respond to,

a collection of information unless it

displays a currently valid OMB control

number.

In reviewing State operating permit

programs submitted pursuant to title V

of the Clean Air Act, EPA will approve

State programs provided that they meet

the requirements of the Clean Air Act

and EPA's regulations codified at 40

CFR part 70. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a State operating permit

program for failure to use VCS. It would

thus be inconsistent with applicable law

for EPA, when it reviews an operating

permit program , to use VCS in place of

a State program that otherwise satisfies

the provisions of the Clean Air Act.

Thus, the requirements of section 12(d)

of the National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply.

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 will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. section 804(2). This

rule will be effective on November 30,

2001.

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 February 4, 2002.

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, Reporting

and recordkeeping requirements.

Dated: November 28, 2001.

Wayne Nastri,

Regional Administrator, Region 9.

40 CFR part 70, chapter I, title 40 of

the Code of Federal Regulations is

amended as follows:

Federal Register/Vol. 66,

HeinOnline -- 66 Fed. Reg. 63179 2001
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, et seq.

2. Appendix A to part 70 is amended

by revising paragraphs (a) and (b), and

adding paragraph (c)(3) under Arizona

to read as follows:

Appendix A to Part 70-Approval

Status of State and Local Operating

Permits Programs

Arizona

(a) Arizona Department of Environmental

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 on November 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 on November 29, 1996;

interim approval expires December 1, 2001.

(2) Revisions submitted on September 7,

2001. Full approval is effective on November

30, 2001.

(c) * * *

(3) Revisions submitted on May 30, 1998

and November 9, 2001. Full approval is

effective on November 30, 2001.

[FR Doc. 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 Air Act 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 of the operating permit

program submitted by the State of New

York in accordance with Title V of the

Clean Air Act (the Act) and its

implementing regulations codified. This

approved program allows New York to

issue federally enforceable operating

permits to all major stationary sources

and to certain other sources within the

State's jurisdiction. However, because

certain of the regulations are emergency

rules that will expire on December 21,

2001, unless extended, EPA is

approving this program only until the

expiration date of the emergency rules.

EPA has proposed approval of

permanent rules that are substantively

the same as the emergency rules and the

State expects to submit those 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 still be

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. If New 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 of the effective

date of the federal program in a

subsequent Federal Register document.

Because EPA received adverse

comments on the 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 of the State's

submittal 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 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

section provides additional information

by addressing the following questions:

1. What is the operating permit program?

2. What is being addressed in this

document?

3. What were the concerns raised by the

commenters?

4. What is the public's role in identifying

program deficiencies?

5. What are the program changes that EPA

is approving?

6. What is involved in this final action?

7. What is the scope of EPA's full

approval?

8. What is the effective date of EPA's final

full approval of the State of New York title

V program?

1. What Is the Operating Permit

Program?

Title V of the Clean Air Act (the Act)

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 of the Act that apply to

individual sources. This consolidation

of all of the 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 of the Act and in EPA's

regulations at 40 CFR 70.3.

The EPA reviews state programs

pursuant to title V of the Act and part

70, which outline the criteria for

approval or disapproval. Where a

program substantially, but not fully,

meets the requirements of part 70, EPA

may grant the program interim approval

which would be effective for two years.

If a state does not have in place a fully

approved program by the time the

interim approval expires, the federal

operating permit program under 40 CFR

part 71 (part 71) will automatically take

effect. Due to unexpected circumstances

that affected states' timeliness in

developing fully approvable programs,

EPA extended the effective date of all

interim approvals until December 1,

2001. For any state that has not received

full approval from EPA by December 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

not have final part 70 permits 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 under part 71.

2. What Is Being Addressed in This

Document?

New York State's first version of its

operating permit program substantially,

but not fully, met the requirements of

part 70; therefore, EPA granted interim

program approval on November 7, 1996,

which became effective on December 9,

1996 (61 FR 57589). In the interim

approval rulemaking EPA identified

eight issues that needed correction

before New York would be 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