Air quality implementation plans; approval and promulgation; various States: New York,

[Federal Register: September 2, 1998 (Volume 63, Number 170)]

[Rules and Regulations]

[Page 46658-46659]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr02se98-17]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is announcing approval of a revision to the New York State Implementation Plan for ozone. This revision establishes and allows an emission trade between Niagara Mohawk Power Corporation and Champion International Corporation which will result in both sources meeting the requirements of reasonably available control technology for oxides of nitrogen. The intended effect of this action is to approve source-specific permit conditions, requiring the sources to trade emissions in accordance with requirements of the Clean Air Act, and resulting in emission reductions which will help toward attaining the national ambient air quality standards for ozone.

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

ADDRESSES: Copies of the state submittals and other information are available for public inspection during normal business hours, by appointment, at the Air Programs Branch, U.S. EPA, Region II Office, 290 Broadway, 25th Floor, New York, New York, 10007-1866; as well as the New York State Department of Environmental Conservation, Division of Air Resources, 50 Wolf Road, Albany, New York 12233; and the EPA, Air and Radiation Docket and Information Center, Air Docket (6102), 401 M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Richard Ruvo, Environmental Engineer, Air Programs Branch, U.S. EPA, Region II Office, 290 Broadway, 25th Floor, New York, New York 10007-1866; (212) 637-4014.

SUPPLEMENTARY INFORMATION: On April 9, 1996, New York State submitted special permit conditions for two sources to EPA as a source-specific revision to the State Implementation Plan (SIP) for ozone. The special permit conditions are for the Niagara Mohawk Power Corporation and the Champion International Corporation for an emission trade to meet the reasonably available control technology for oxides of nitrogen (NO‹INF›x‹/INF› RACT) requirements of New York State's Part 227-2. New York supplemented the April 9, 1996 SIP revision with amended special permit conditions on February 2, 1998. On May 21, 1998, EPA published in the Federal Register (63 FR 27897) a Notice of Proposed Rulemaking (NPR) proposing to approve the special permit conditions as a SIP revision and providing for a 30-day public comment period. EPA received no comments regarding the NPR. For a more detailed discussion of New York's SIP submittal and EPA's action, the reader is referred to the NPR.

Conclusion

EPA is approving the source-specific permit conditions which allow Niagara Mohawk Power Corporation and Champion International Corporation to trade emissions to meet the requirements of NOx RACT. EPA is approving these special permit conditions, as submitted by the State of New York on April 9, 1996 and supplemented on February 2, 1998, as part of the SIP.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any state implementation plan. Each request for revision to the state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Executive Order 13045

The final rule is not subject to E.O. 13045, entitled ``Protection of Children from Environmental Health Risks and Safety Risks,'' because it is not an ``economically significant'' action under E.O. 12866.

[[Page 46659]]

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under Section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability. Section 804 exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. section 804(3).

Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by November 2, 1998. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: July 30, 1998. Jeanne M. Fox, Regional Administrator, Region 2.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

   Authority: 42 U.S.C. 7401 et seq.

   Subpart HH--New York

2. Section 52.1670 is amended by adding new paragraph (c)(94) to read as follows:

   Sec. 52.1670 Identification of plan.

   * * * * *

   (c) * * * * * * * *

   (94) A revision to the State Implementation Plan submitted by the New York State Department of Environmental Conservation on April 9, 1996 and supplemented on October 17, 1996 and February 2, 1998 that allows Niagara Mohawk Power Corporation and Champion International Corporation to trade emissions to meet the requirements of NO‹INF›X‹/INF› RACT.

   (i) Incorporation by reference:

   (A) Permits to Construct and/or Certificates to Operate: The following facilities have been issued permits to construct and/or certificates to operate by New York State and such permits and/or certificates are incorporated for the purpose of establishing an emission trade to be consistent with Subpart 227-2:

   (1) Niagara Mohawk Power Corporation's system-wide utility boilers; New York special permit conditions and approval letter dated December 14, 1995.

   (2) Champion International Corporation's two coal-fired boilers, Units 1 and 2, Jefferson County; New York special permit conditions and approval letter dated December 2, 1997.

   (ii) Additional information:

   (A) Documentation and information to support the emission trade in three letters addressed to EPA from the New York State Department of Environmental Conservation and dated as follows:

   (1) April 9, 1996 to Mr. Conrad Simon, Director of Air and Waste Management Division from Deputy Commissioner David Sterman for a SIP revision for Niagara Mohawk Power Corporation and Champion International Corporation.

   (2) October 17, 1996 letter to Mr. Ted Gardella, EPA from Mr. Patrick Lentlie, supplementing the SIP revision with the special permit condition approval letters.

   (3) February 2, 1998 letter to Mr. Ronald Borsellino, Chief of the Air Programs Branch from Mr. Patrick Lentlie, supplementing the SIP revision with the amended special permit conditions for Champion International Corporation.

   [FR Doc. 98-23332Filed9-1-98; 8:45 am]

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