Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations 24715

implement an oxygenated gasoline

program.

IV. Administrative Review

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110 and

subchapter I, Part D of the CAA do not

create any new requirements, but

simply approve requirements that the

state is already imposing. Therefore,

because the federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

federal-state relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

federal inquiry into the economic

reasonableness of state action. The CAA

forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S.E.P.A., 427

U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C.

7410(a)(2).

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 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 costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated 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.

The EPA has reviewed this request for

revision of the federally-approved SIP

for conformance with the provisions of

the 1990 Clean Air Act Amendments

enacted on November 15, 1990. The

EPA has determined that this action

conforms with those requirements.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic and environmental

factors and in relation to relevant

statutory and regulatory requirements.

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995 memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget (OMB) has exempted this

regulatory action from E.O. 12866

review.

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by July 15, 1996.

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), 42 U.S.C. 7607(b)(2)).

List of subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Note: Incorporation by reference of the

Implementation Plan for the State of Alaska

was approved by the Director of the Office of

Federal Register on July 1, 1982.

Dated: April 23, 1996.

Chuck Clarke,

Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart C—Alaska

2. Section 52.70 is amended by

adding paragraph (c) (25) to read as

follows:

§ 52.70 Identification of plan.

* * * * *

(c) * * *

(25) On March 24, 1994, ADEC

submitted a revision to its SIP for the

State of Alaska addressing the

attainment and maintenance of the

NAAQS for CO in the Anchorage CO

nonattainment area.

(i) Incorporation by reference.

(A) March 24, 1994 letter from the

Alaska Governor to the EPA Regional

Administrator including as a revision to

the SIP the State of Alaska, Department

of Environmental Conservation, 18 AAC

53, ‘‘Fuel Requirements for Motor

Vehicles,’’ (Article 1, 18 AAC 53.005—

18 AAC 53.190 and Article 9, 18 AAC

53.990, with the exception of 18 AAC

53.010(c)(2)), filed March 24, 1994 and

effective on April 23, 1994.

* * * * *

[FR Doc. 96–12352 Filed 5–15–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[NJ001; FRL–5505–7]

Clean Air Act Final Interim Approval Of

Operating Permit Program; New Jersey

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final interim approval.

SUMMARY: The EPA is promulgating final

interim approval of the operating permit

program which the State of New Jersey

had submitted in accordance with Title

V of the Clean Air Act (the Act) and its

implementing regulations codified at

Part 70 of Title 40 of the Code of Federal

Regulations (40 CFR Part 70). This

approved interim program allows New

Jersey to issue federally enforceable

operating permits to all major stationary

sources and to certain other sources for

a period of two years, at which time it

must be replaced by a fully approved

program.

EFFECTIVE DATE: This interim program

will be effective June 17, 1996.

ADDRESSES: Copies of the State’s

submittal and other supporting

information used in developing the final

interim approval as well as the

Technical Support Document are

available for inspection during normal

business hours at the following location:

U.S. Environmental Protection Agency,

Region 2, 290 Broadway, 21st Floor,
24716 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

New York, New York 10007–1866;

Attention: Steven C. Riva.

FOR FURTHER INFORMATION CONTACT:

Suilin Chan, Permitting and Toxics

Support Section, at the above EPA office

in New York or at telephone number

(212) 637–4019.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

The Act and its implementing

regulations at 40 CFR Part 70 require

that states develop and submit operating

permit programs to the EPA by

November 15, 1993, and that the EPA

act to approve or disapprove each

program within one year after receiving

the complete submittal. The EPA

reviews state programs pursuant to

Section 502 of the Act and the Part 70

regulations, which together outline the

criteria for approval or disapproval.

Where a program substantially, but not

fully, meets the requirements of Part 70,

EPA may grant the program interim

approval for a period of up to two years.

Additionally, where a state can

demonstrate to the satisfaction of EPA

that reasons exist to justify the granting

of a source category-limited interim

approval, EPA may so exercise its

authority. A source category-limited

interim program is one that

substantially meets the requirements of

Part 70 and applies to at least 60% of

all affected sources which account for

80% of the total emissions within the

state. If a state does not have an

approved program by the end of an

interim program, EPA must establish

and implement a federal operating

permit program for that state.

On January 30, 1996, EPA proposed to

approve the source category-limited

operating permit program submitted by

New Jersey (see 61 FR 2983). During the

30-day public comment period which

ended on February 29, 1996, six

comment letters were received on the

Proposed Approval Notice. Five of the

comments regarded the list of

deficiencies that NJ has to correct in

order to receive full program approval.

These commenters opined that the NJ

program is not deficient in those areas

and therefore should not be required to

address them in the full program

submittal. One commenter argued that

NJ has no authority to collect emissionsbased Title V fees from two Title IVaffected Phase I units. A response to all

of the comments received is included in

Section II.B. of this notice. Based upon

EPA’s review, none of the comments

received changes EPA’s decision to

approve NJ’s source category-limited

interim program. Therefore, in this

notice, the EPA is taking final action to

promulgate interim approval of the New

Jersey Operating Permit Program.

II. Final Action and Implications

A. Analysis of State Submission

On January 30, 1996, the EPA

proposed interim approval of NJDEP’s

Title V Operating Permit Program. The

program elements discussed in the

proposed notice are unchanged from the

analysis in the Interim Approval Notice

and continue to substantially meet the

requirements of 40 CFR Part 70.

B. Response to Public Comments

1. Deferral of Non-major Sources.

Two comments were received on this

issue, from the Industrial Operating

Permit Legislative/Regulatory

Workgroup (IOPLRW) and NJDEP.

IOPLRW argues that non-major

sources subject to NJ’s NSR program

should not be required to go through the

‘‘formalities’’ of obtaining an operating

permit because (1) it is inconsistent

with EPA’s ‘‘White Paper’’ policies and

(2) NJDEP already imposes substantial

requirements to control emissions of

pollutants from such sources. The

NJDEP, however, acknowledges that its

current rule is deficient in not requiring

non-deferred non-major sources subject

to Section 111 of the Act to obtain

operating permits and agrees to amend

its rule in the next revision. NJDEP

asserts that this deficiency, however,

does not exist for non-deferred nonmajor sources subject to Section 112 of

the Act since its rule (N.J.A.C. 7:27–

22.26(b), (c), and (d)) contains the

necessary requirements.

Response. EPA agrees with NJDEP

that its rule is adequate in addressing

the requirements for non-deferred nonmajor sources subject to Section 112 of

the Act. Therefore, in the final approval

of NJ’s interim program, EPA is only

requiring NJDEP to revise its rule to

address non-major sources subject to

Section 111 of the Act. With respect to

the comments submitted by the

IOPLRW, EPA disagrees with the

commenter that no rule revision was

necessary. This comment conflicts with

the provision of 40 CFR § 70.3(b)(2)

which is not affected by guidance

established in EPA’s ‘‘White Paper’’.

2. Definition of Prompt Reporting.

Four comments were received on this

issue, from IOPLRW, Bayway Refining

Company, National Environmental

Development Association (NEDA), and

Du Pont Chemicals.

All four commenters echoed the same

arguments; therefore, their comments

will be grouped together and responded

to as a single comment. The commenters

argued that 40 CFR § 70.6 provides the

permitting authority the flexibility to

‘‘define prompt in relation to the degree

and type of deviation likely to occur and

the applicable requirements’’. As such,

the commenters questioned EPA’s basis

and authority for requiring a 10-day

reporting of deviations where the air

contaminants are released in a quantity

or concentration that pose no potential

threat to the public health, welfare, or

the environment and the permittee does

not intend to assert affirmative defense

for the deviation. All commenters felt

that NJ’s current requirement of

immediate reporting for deviation

resulting in air contaminants released in

a quantity or concentration which poses

a potential threat to public health,

welfare or the environment or which

might reasonably result in citizen

complaints is adequate. Further, a twoday reporting requirement was asserted

to be adequate where the quantity or

concentration of the releases poses no

potential threat to the public health,

welfare or environment and which will

not likely result in citizen complaints

but that the permittee intends to assert

an affirmative defense. The ten-day

reporting requirement is unilaterally

considered an unnecessary

administrative burden to both NJDEP

and the regulated community resulting

in no commensurate improvement to

the environment.

Response. EPA reconsidered its initial

proposal to require a 10-day reporting

on deviations that do not pose a

potential threat to the public health,

welfare, or the environment and for

which the permittee does not intend to

assert an affirmative defense. Although

EPA acknowledges that NJ’s reporting

rules have worked fairly well in the

past, EPA does not find that to be

grounds for ruling out the ten-day

reporting requirement altogether. There

may be circumstances where such

reporting timeframe is warranted.

Therefore, after considering the

concerns brought forth by the

commenters, EPA has decided not to

require NJ to incorporate the 10-day

reporting provision in its operating

permit rule. Rather, EPA will determine

the appropriateness of imposing this

requirement on an as-needed basis.

3. Affirmative Defense. Five

comments were received on this issue,

from IOPLRW, Bayway Refining

Company, NEDA, NJDEP, and Du Pont

Chemicals.

Since all five commenters voiced the

same concerns on this issue, their

comments are grouped together and

treated as one. While EPA cited the

affirmative defense provisions found in

N.J.S.A.26:2C–19.1 through 19.5 to be in

conflict with the provisions of 40 CFR
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations 24717

§ 70.6(g), all five commenters asserted

that the NJ provisions have worked well

in the past by allowing reasonable

excursions during startups, shutdowns,

malfunctions, and equipment

maintenance without compromising

protection to the environment and

public health and welfare. All

commenters maintained that the NJ Law

could be interpreted to be in

conformance with Part 70. In its

proposed approval notice, EPA stated

that the NJ Law was deficient in (1) not

restricting the use of an affirmative

defense to violations of technologybased emission limitations which

potentially allows the use of an

affirmative defense for violations of

health-based emission limitations and

(2) allowing an affirmative defense for

startups, shutdowns, malfunctions, and

equipment maintenance. The

commenters argued that although the NJ

Law does not restrict the affirmative

defense to technology-based emission

limitations, it nevertheless provides the

same degree of protection for healthbased emission limitations by ensuring

that the violations do not potentially

threaten the environment or public

health or welfare. For this same reason,

the commenters argued that allowing an

affirmative defense for startups,

shutdowns, malfunctions, and

equipment maintenance does not pose

more of a threat to the environment than

what Part 70 provides.

Response. EPA has thoroughly

reviewed the arguments presented by

the commenters and maintains that the

inconsistencies between the NJ Law and

Part 70 must still be resolved in order

for EPA to grant full program approval

on this provision. In promulgating the

Part 70 regulations, EPA intended to

restrict the emergency affirmative

defense to actions brought for

noncompliance with a technology-based

emission limitation to ensure greater

protection for health-based emission

standards (such as the National Ambient

Air Quality Standards (NAAQS),

National Emissions Standards for

Hazardous Air Pollutants (NESHAP),

etc.). The NJ Law, however, does not

contain similar restrictions. After

reviewing the arguments presented by

the commenters on this particular issue,

however, EPA agrees with the

commenters that the NJ Law may be

interpreted to provide the same degree

of protection for the health-based

emission limitations. Therefore, in lieu

of making changes to the NJ operating

permit rule, EPA will accept an opinion

from the Attorney General which

affirms that any violation resulting in a

‘‘potential threat to public health’’ as

used in N.J.S.A. 26:2C–19.1 through

19.5 equates to a violation of a healthbased emission standard, such that the

affirmative defense created in New

Jersey’s legislation is not available for

violations of health-based emission

limits. The Attorney General’s opinion

should point to either court decisions or

legislative history interpreting the

‘‘potential threat to public health’’

language. With respect to the issue of

restricting the affirmative defense to

emergency situations arising from

sudden and reasonably unforeseeable

events that are beyond the control of the

source including the acts of God, NJ’s

Law is clearly inconsistent with 40 CFR

70.6(g). Although NJ’s criteria for

asserting an affirmative defense in

N.J.S.A. 26:2C–19.2 are similar to the

criteria established in 40 CFR § 70.6(g),

NJ’s affirmative defense in N.J.S.A

26:2C–19.1 and 19.2 goes beyond

sudden and unforeseeable events. As

stated in the proposed approval, 40 CFR

§ 70.6(g) only allows an affirmative

defense for Title V purposes for sudden

and unforeseeable events. NJ’s law not

only applies to unforeseeable

malfunctions, but also to equipment

start-up or shut-down and equipment

maintenance, activities of which are

usually pre-scheduled. Therefore, EPA

sees no grounds for finding the NJ

approach substantially equivalent to

that in 40 CFR § 70.6(g). This is beyond

the scope of 40 CFR § 70.6(g) and must

be changed before full approval can be

granted for this provision. NJ may either

change its legislation or its operating

permit rule to address this deficiency.

As to the comments that Part 70 should

be changed to provide more flexibility

on this issue, we appreciate the

commenters’ desire for more flexibility,

but program approval is judged on the

existing requirements of 40 CFR Part 70,

not on any possible future changes to

Part 70. EPA is treating this issue

consistently nationally by only granting

interim approval to states with similar

inconsistencies to 40 CFR § 70.6(g). EPA

is not aware of any other state programs

being treated differently on this issue.

4. R&D Support Facility Test. Two

comments were received on this issue,

from NEDA and IOPLRW.

Both commenters argued that the

issue of whether an R&D operation is

eligible for separate treatment under the

operating permit program should not

depend on where the products and

processes developed in the R&D

operation are used. Rather, eligibility for

separate treatment should simply

depend on whether the R&D operation

produces more than a de minimis

quantity of products for commercial use.

Response. In its proposal to approve

NJ’s program, EPA did not identify the

application of the support facility test in

determining the major source status of

a stationary source with an R&D

operation to be a condition for full

program approval. The support facility

test will ensure that only true R&D

facilities are properly separated from the

source. Under the support facility test,

even where neighboring, commonly

controlled sources have different 2-digit

SIC codes, they should be aggregated to

determine whether a major source is

present if the output of one is more than

50 percent devoted to the support of the

other. However, EPA believes that R&D

operations should not generally be

considered support facilities, since the

‘‘support’’ provided is directed towards

development of new processes or

products and not to current production.

EPA acknowledges that the product of

an R&D operation is information

potentially useful to create a new

industrial process or to improve the

process ongoing at the facility, but not

to directly support the process in which

the industrial activity is currently

engaged or capable of engaging in any

significant commercial fashion. To the

extent an activity bears some

resemblance to R&D but in fact

contributes to the ongoing product

produced or service rendered at a

facility in a more than de minimis

manner, those activities should be

considered part of the source. Pilot

plants often present instances of

activities that are conducted on a trial

basis, but which are nevertheless

dedicated to producing a product for

commerce to a more than de minimis

extent, and so would not be considered

R&D. Whether or not an R&D facility

meets the support facility test is a caseby-case determination. As provided in

the Preamble of Part 70, R&D operations

are not exempt from Title V

requirements, but the state is given the

flexibility to treat the R&D facility

separate from the manufacturing facility

with which it is co-located. The

definition of R&D in N.J.A.C. 7:27–22–

1 establishes the criteria for determining

whether or not an operation will be

given separate treatment as an R&D

facility and is reflective of the federal

definition as discussed in the foregoing.

Under N.J.A.C. 7:27–22.1, an R&D

facility cannot be engaged in the

‘‘manufacture of products for

commercial sale, except in a de minimis

manner.’’ This is a close approximation

of the support facility test. EPA is not

adding any further burden of proof upon

the facility in the event of alleged

noncompliance with 40 CFR Part 70,
24718 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

than what is already established by the

state in N.J.A.C. 7:27–22.1 and 7:27–

22.2(d).

5. Administrative Amendment. Two

comments were received on this issue,

from IOPLRW and NJDEP.

IOPLRW asserted that the

administrative amendment section of

NJ’s rule meets the requirements of Part

70. NJDEP clarified that the

interpretation EPA read into the

language at N.J.A.C. 7:27–22.20(b)(7) as

explained in the proposed interim

approval was not intended. NJDEP

agreed to revise its rule to address EPA’s

comments.

Response. EPA appreciates the

comment from IOPLRW; however, a

revision to NJ’s rule is nonetheless

necessary.

6. Title IV Fees. One comment was

received on this issue from Atlantic

Electric (AE).

AE argued that NJ should not be

allowed to assess Title V emissionsbased fees during 1995 to 1999 from any

Title IV-affected Phase I units even if

the emissions occurred outside of the 5-

year grace period (prior to 1/1/95).

Response. EPA agrees with the

commenter and consequently hereby

corrects a statement made in the notice

of proposed interim approval. The

language in the register incorrectly

alluded to allowing a state to collect

during 1995 to 1999 Title V fees from

Title IV-affected Phase I units based on

emissions that occurred prior to January

1, 1995. The correct reading and the

actual meaning of Section 408(c)(4)

should be a state is allowed to use

emissions-based fees for Title V

purposes during 1995 and 1999 if such

fees were already collected from the

Phase I units prior to January 1, 1995 for

program ramp-up or the like.

Alternatively, the state may collect Title

V emissions-based fees after December

31, 1999 from the Phase I units. Finally,

the state can collect non-emissions

based Title V fees from any Phase I units

during the 5-year period. Along with its

comments, AE also urged EPA to require

NJDEP to submit adequate

documentation confirming that the NJ

operating permit program will be

sufficiently funded without accounting

fee revenues from the Phase I units in

NJ. EPA appreciates AE’s concerns over

the funding aspect of the NJ program. As

EPA has discussed in details in the

proposed approval, NJ is required to resubmit a more refined fee demonstration

to assure sufficient funding for the

operating permit program before EPA

would consider granting full approval.

EPA acknowledges that the Title V

program is a new program with many

uncertainties and variables in the area of

cost assessment, in particular.

Therefore, EPA finds it appropriate to

allow a state to put the program into

practice for a short duration (during an

interim approval) so that the state may

accurately determine the amount of

funding needed for successful program

implementation provided the state has

collected sufficient fee revenues to start

the program. EPA’s initial proposal to

require a more refined fee

demonstration in the full program

submittal remains unchanged.

C. Final Action

The EPA is promulgating interim

approval of the Operating Permit

Program submitted by the NJDEP on

November 15, 1993, as revised on

August 10, 1995, and supplemented on

August 28, 1995, November 15, 1995,

December 4, 1995, and December 6,

1995. Among other things, the NJDEP

has demonstrated that the program

substantially meets the minimum

requirements for a state operating

permit program as specified in 40 CFR

Part 70 and the criteria for a source

category-limited interim program as

discussed in EPA’s Guidance entitled

‘‘Interim Title V Program Approvals’’

issued by John S. Seitz, Director, Office

of Air Quality Planning and Standards

on August 2, 1993. This interim

approval which may not be renewed,

extends until June 16, 1998. Under the

approved interim operating permit

program, New Jersey is allowed to issue

federally enforceable operating permits

to all major stationary sources and to

certain other sources for the duration of

this approval. During this interim

approval period, the State of New Jersey

is protected from sanctions, and EPA is

not obligated to promulgate, administer

and enforce a federal operating permit

program in New Jersey. Permits issued

under a program with interim approval

have full standing with respect to Part

70, and the 1-year time period for

submittal of permit applications by

subject sources begins upon the

effective date of this interim approval,

as does the 3-year time period for

processing the initial permit

applications. In order to ensure that a

fully approved program will be in place

by the expiration date of the interim

approval, New Jersey must submit a

modified program to EPA by December

16, 1997 that addresses the following

deficiencies:

1. Deferral of Non-Major Sources

New Jersey must revise its operating

permit rule to require non-major sources

subject to Section 111 standards

promulgated after July 21, 1992 to apply

for an operating permit unless EPA

exempts such sources in future

rulemaking or promulgation of future

requirements. Applications from these

sources should be submitted in

accordance with the schedule found

under N.J.A.C. 7:27–22.5(i).

2. Affirmative Defense

The New Jersey legislation as stated in

N.J.S.A. 26:2C–19.1 through 19.5 and

the New Jersey rule provisions on

affirmative defenses as stated in N.J.A.C.

7:27–22.3(nn) and 22.16(l) must be

revised or clarified to ensure

conformance with 40 CFR § 70.6(g).

Specifically, New Jersey needs to limit

the use of affirmative defense to 1)

violations of technology-based emission

limitations, not health-based emission

limitations and 2) to sudden and

unforeseeable events. To address the

first deficiency, New Jersey has the

option of either changing its legislation

at N.J.S.A.26:2C–19.1 through 19.5 to

specify that the affirmative defense can

only be used in emergency situation

resulting in violations of technologybased emission limitations or

submitting an opinion from the State

Attorney General (AG). The AG’s

opinion must demonstrate how the State

Law has clearly equated the term

‘‘potential harm to public health’’ to

violations of health-based emission

limitations. The AG’s opinion must also

clarify that the NJ Law prohibits the use

of an affirmative defense for violations

of health-based emission limitations and

must be supported by court decisions or

legislative history interpreting the

‘‘potential threat to public health’’

language. To address the second

deficiency, the NJ Law at N.J.S.A.26:2C–

19.1 through 19.5 and the NJ rule at

N.J.A.C. 7:27–22.3(nn) and 22.16(l) must

be changed to limit the use of an

affirmative defense, for Title V

purposes, to sudden and unforeseeable

events that are beyond the control of the

source.

3. Administrative Amendments

New Jersey must revise its operating

permit rule to ensure that the

administrative amendment procedure is

properly used for incorporating

preconstruction permits into the

operating permit. Specifically, New

Jersey must either:

i. specify in § 7:27–22.20(b)(7) the

procedures under which

preconstruction permits must have been

issued (40 CFR § 70.7 and 40 CFR

§ 70.8) and permit content requirements

the permit must meet (40 CFR § 70.6) in

order to be eligible for incorporation by

administrative amendment, or

ii. codify those procedural and permit

content requirements into the
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations 24719

preconstruction review regulations and

obtain EPA’s approval of those

regulations.

4. Permit Fees

In order to receive full program

approval, New Jersey must submit a

revised fee demonstration showing that

$9.51 million is adequate to administer

the operating permit program during the

initial four years of full program

implementation. Should the cap of

$9.51 million fall short of the actual

program costs, New Jersey must take all

necessary corrective actions (including

legislative changes) prior to submitting

the corrected program.

If NJ fails to submit a complete

corrective program for full approval by

December 16, 1997, EPA will start an

18-month clock for mandatory

sanctions. If NJ then fails to submit a

complete corrective program before the

expiration of that 18-month period, EPA

will apply sanctions as required by

Section 502(d)(2) of the Act, which will

remain in effect until EPA determines

that NJ has corrected the deficiencies by

submitting a complete corrective

program.

If EPA disapproves NJ’s complete

corrected program, EPA will apply

sanctions as required by Section

502(d)(2) on the date 18 months after

the effective date of the disapproval,

unless prior to that date, NJ has

submitted a revised program and EPA

has determined that it corrected the

deficiencies that prompted the

disapproval.

In addition, discretionary sanctions

may be applied where warranted any

time after the expiration of an interim

approval period if NJ has not timely

submitted a complete corrective

program or EPA has disapproved its

submitted corrective program.

Moreover, if EPA has not granted full

approval to the NJ program by the

expiration of this interim approval, EPA

must promulgate, administer and

enforce a federal operating permit

program for the State of New Jersey

upon interim approval expiration.

It should be noted that this interim

approval is granted based on the

information submitted by the NJDEP on

August 10, 1995 and supplements

subsequently received. Should the

program approvability status of NJ’s

program change in the future for any

reasons including changes in state laws

or regulations or procedures which limit

the NJDEP’s enforcement authority or

program administration and

enforcement, EPA will revisit this

approval and exercise its authority as

provided under 40 CFR § 70.10 (b) or (c)

to afford NJ an opportunity to correct its

program deficiencies or withdraw

program approval.

Requirements for approval, specified

in 40 CFR § 70.4(b), encompass Section

112(l)(5) requirements for approval of a

program for delegation of Section 112

standards as promulgated by the EPA as

they apply to Part 70 sources. Section

112(l)(5) requires that the state’s

program contain adequate authorities,

adequate resources for implementation,

an expeditious compliance schedule,

and adequate enforcement ability,

which are also requirements under Part

70. In a letter dated November 15, 1995,

NJDEP requested delegation through

112(l) of all existing 112 standards for

Part 70 sources and infrastructure

programs. With respect to future 112

standards, NJDEP intends to accept

delegation of most, if not all, of the

standards. NJDEP will review each

standard within 45 days of receiving

notice from EPA prior to accepting

delegation. In the letter, NJDEP

demonstrated that they have sufficient

legal authorities, adequate resources, the

capability for automatic delegation of

future standards, and adequate

enforcement ability for implementation

of Section 112 of the Act for all Part 70

sources. Therefore, the EPA is also

promulgating interim approval under

Section 112(l)(5) and 40 CFR Part 63.91

to grant New Jersey approval for its

program mechanism for receiving

delegation of all existing and future

Section 112(d) standards for all Part 70

sources, and Section 112 infrastructure

programs that are unchanged from

federal rules as promulgated.

III. Administrative Requirements

A. Docket

Copies of the NJ submittal and other

information relied upon for the final

interim approval, including the public

comments received and reviewed by

EPA on the proposal, are contained in

the docket maintained at the EPA

Regional Office. The docket is an

organized and complete file of all the

information submitted to, or otherwise

considered by, EPA in the development

of this final interim approval. The

docket is available for public inspection

at the location listed under the

ADDRESSES section of this document.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under Section 502

of the Act do not create any new

requirements, but simply address

operating permit programs submitted to

satisfy 40 CFR Part 70. Since these

operating permit programs were already

adopted at the state level and today’s

action does not introduce any additional

requirements that are new to the state

program already in effect, no significant

impact on a substantial number of small

entities is expected to occur as a result

of today’s action.

D. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated annual costs to

State, local, or tribal governments in the

aggregate, or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203 of

the Unfunded Mandates Act requires

EPA to establish a plan for informing

and advising any small governments

that may be significantly or uniquely

impacted by the rule.

The EPA has determined that the

approval action promulgated today does

not include a Federal mandate that may

result in estimated annual costs of $100

million or more to either State, local, or

tribal governments in the aggregate, or

to the private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new Federal requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

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: May 5, 1996.

Jeanne M. Fox,

Regional Administrator.

Part 70, Title 40 of the Code of

Federal Regulations is amended as

follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.
24720 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

2. Appendix A to Part 70 is amended

by adding the entry for New Jersey in

alphabetical order to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permit Programs

* * * * *

New Jersey

(a) The New Jersey Department of

Environmental Protection submitted an

operating permit program on November 15,

1993, revised on August 10, 1995, with

supplements on August 28, 1995, November

15, 1995, December 4, 1995, and December

6, 1995; interim approval effective on June

17, 1996; interim approval expires June 16,

1998.

(b) (Reserved)

* * * * *

[FR Doc. 96–12347 Filed 5–15–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 300

[FRL–5505–2]

National Oil and Hazardous

Substances Contingency Plan;

National Priorities List Update

AGENCY: Environmental Protection

Agency.

ACTION: Notice of Deletion of the

Washington County Landfill Superfund

Site from the National Priorities List

(NPL).

SUMMARY: The U.S. Environmental

Protection Agency (U.S. EPA)

announces the deletion of the

Washington County Landfill site in

Minnesota from the National Priorities

List (NPL). The NPL is Appendix B of

40 CFR Part 300 which is the National

Oil and Hazardous Substances

Contingency Plan (NCP), which EPA

promulgated pursuant to Section 105 of

the Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980 (CERCLA), as amended.

This action is being taken by EPA and

the State of Minnesota, because it has

been determined that Responsible

Parties have implemented all

appropriate response actions required.

Moreover, EPA and the State of

Minnesota have determined that

remedial actions conducted at the site to

date remain protective of public health,

welfare, and the environment.

EFFECTIVE DATE: May 16, 1996.

FOR FURTHER INFORMATION CONTACT:

Lawrence Schmitt (312) 353–6565 (SR–

6J), Remedial Project Manager or Gladys

Beard at (312) 886–7253, Associate

Remedial Project Manager, Superfund

Division, U.S. EPA—Region V, 77 West

Jackson Blvd., Chicago, IL 60604.

Information on the site is available at

the local information repository located

at: Minnesota Pollution Control Agency

Public Library, 520 Lafayette Rd., St.

Paul, MN 55155–4194 and Lake Elmo

Branch of the Washington County

Public Library, 3459 Lake Elmo Avenue,

Lake Elmo, MN. Requests for

comprehensive copies of documents

should be directed formally to the

Regional Docket Office. The contact for

the Regional Docket Office is Jan

Pfundheller (H–7J), U.S. EPA, Region V,

77 W. Jackson Blvd., Chicago, IL 60604,

(312) 353–5821.

SUPPLEMENTARY INFORMATION: The site to

be deleted from the NPL is: Washington

County Landfill Site located in

Washington County, Minnesota. A

Notice of Intent to Delete for this site

was published April 1, 1996 (61 FR

14280). The closing date for comments

on the Notice of Intent to Delete was

May 1, 1996. EPA received no

comments and therefore no

Responsiveness Summary was prepared.

The U.S. EPA identifies sites which

appear to present a significant risk to

public health, welfare, or the

environment and it maintains the NPL

as the list of those sites. Sites on the

NPL may be the subject of Hazardous

Substance Response Trust Fund (Fund-

) financed remedial actions. Section

300.425(e)(3) of the NCP states that

Fund-financed actions may be taken at

sites deleted from the NPL in the

unlikely event that conditions at the site

warrant such action. Deletion of a site

from the NPL does not affect responsible

party liability or impede agency efforts

to recover costs associated with

response efforts.

List of Subjects in 40 CFR Part 300

Environmental protection, Air

pollution control, Chemicals, Hazardous

substances, Hazardous Waste,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Superfund, Water

pollution control, Water supply.

Dated: May 7, 1996.

Valdas V. Adamkus,

Regional Administrator, U.S. EPA, Region V.

40 CFR part 300 is amended as

follows:

PART 300—[AMENDED]

1. The authority citation for part 300

continues to read as follows:

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR,

1991 Comp.; p.351; E.O. 12580, 52 FR 2923,

3 CFR, 1987 Comp.; p. 193.

Appendix B—[Amended]

2. Table 1 of Appendix B to part 300

is amended by removing the Site

‘‘Washington County Landfill Site, Lake

Elmo County, Minnesota’’.

[FR Doc. 96–12348 Filed 5–15–96; 8:45 am]

BILLING CODE 6560–50–P

GENERAL SERVICES

ADMINISTRATION

48 CFR Part 570

[APD 2800.12A, CHGE 71]

RIN 3090–AF92

General Services Administration

Acquisition Regulation; Acquisition of

Leasehold Interests in Real Property

AGENCY: Office of Acquisition Policy,

GSA.

ACTION: Interim rule.

SUMMARY: The General Services

Administration Acquisition Regulation

(GSAR) is amended to revise sections

570.106 and 570.303 to authorize the

use of design-build selection procedures

in section 303M of the Federal Property

and Administrative Services Act of

1949, as amended by Pub. L. 104–106,

February 10, 1996, for lease

construction projects when the statutory

criteria for use are met.

DATES: Effective Date: May 16, 1996.

Comment Date: Comments should be

submitted in writing to the address

shown below on or before July 15, 1996

to be considered in formulating the final

rule.

ADDRESSES: Interested parties should

submit written comments to the Office

of Acquisition Policy (MV), General

Services Administration, Room 4010,

18th & F Streets, NW, Washington, DC

20405.

FOR FURTHER INFORMATION CONTACT: Tom

Wisnowski, GSA Acquisition Policy

Division, (202) 501–1224.

SUPPLEMENTARY INFORMATION:

A. Determination To Issue an Interim

Rule

A determination has been made under

the authority of the Administrator of

General Services that urgent and

compelling reasons exist to publish an

interim rule prior to affording the public

opportunity for comment.

Section 4105 of Public Law 104–106

amended the Federal Property and

Administrative Services Act of 1949 to

add a new section 303M on design-build

selection procedures. The law

authorizes use of two-phase selection