[Federal Register Volume 72, Number 146 (Tuesday, July 31, 2007)]
[Rules and Regulations]
[Pages 41626-41629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14480]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Docket No. EPA-R02-OAR-2006-0162, FRL-8444-9]
Approval and Promulgation of Implementation Plans; Implementation
Plan Revision; State of New Jersey
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is approving a request
from the State of New Jersey to revise its State Implementation Plan
(SIP) for ozone to incorporate state-adopted amendments to Subchapter
19 ``Control and Prohibition of Air Pollution from Oxides of Nitrogen''
and related amendments to Subchapter 16 ``Control and Prohibition of
Air Pollution by Volatile Organic Compounds.'' The amendments relate to
the control of oxides of nitrogen (NOX) emissions from
stationary industrial sources. This SIP revision consists of control
measures needed to meet the shortfall in emission reductions in New
Jersey's 1-hour ozone attainment demonstration SIP as identified by
EPA.
The intended effect of this action is to approve the state control
strategy, which will result in emission reductions that will help
achieve attainment of the national ambient air quality standards for
ozone required by the Clean Air Act (the Act).
DATES: Effective Date: This rule will be effective August 30, 2007.
ADDRESSES: EPA has established a docket for this action under the
Federal Docket Management System (FDMS) which replaces the Regional
Materials in EDOCKET (RME) docket system. The new FDMS is located at
http://www.regulations.gov and the docket ID for this action is EPA-
R02-OAR-2006-0162. All documents in the docket are listed in the FDMS
index. Publicly available docket materials are available either
electronically in FDMS or in hard copy at the Environmental Protection
Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor,
New York, New York 10007-1866. Copies of the documents relevant to this
action are also available for public inspection during normal business
hours, by appointment at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, Room 3334, 1301 Constitution
Avenue, NW., Washington, DC; and the New Jersey Department of
Environmental Protection, Office of Energy, Bureau of Air Quality
Planning, 401 East State Street, CN027, Trenton, New Jersey 08625.
FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella,
[email protected], Air Programs Branch, U.S. Environmental
Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-
1866, (212) 637-3892.
SUPPLEMENTARY INFORMATION: For detailed information and EPA's analysis
of New Jersey's revision to its State Implementation Plan (SIP) for
ozone see EPA's proposed rulemaking action (72 FR 11812, March 14,
2007) which can be viewed at http://www.regulations.gov.
The following table of contents describes the format for this
notice.
Table of Contents
I. What Action Is EPA Taking Today?
II. What Comments Were Received and How Has EPA Responded to Them?
III. What Role Does This Rule Play in the Ozone SIP?
IV. What Are EPA's Conclusions?
V. Statutory and Executive Order Reviews
I. What Action Is EPA Taking Today?
New Jersey submitted a revision to the State Implementation Plan
(SIP) for ozone dated December 16, 2005, for EPA approval, that
includes a new rule and amendments to Subchapter 19 ``Control and
Prohibition of Air Pollution from Oxides of Nitrogen''; Subchapter 16
``Control and Prohibition of Air Pollution by Volatile Organic
Compounds''; Subchapter 8 ``Permits and Certificates for Minor
Facilities (and Major Facilities Without an Operating Permit)''; and
Subchapter 22 ``Operating Permits.''
Except for certain Open Market Emissions Trading (OMET) Program
provisions in Subchapters 8, 16, and 19, and compliance dates beyond
November 15, 2007 for repowering and innovative control technology, EPA
is approving, as revisions to the New Jersey ozone SIP, the state-
adopted amendments to Subchapter 19 and Subchapter 16, each adopted by
New Jersey on September 8, 2005, and submitted to EPA on December 16,
2005. EPA is currently reviewing past amendments to Subchapter 8 and
will address the approvability of all Subchapter 8 amendments at the
same time in a future action. Subchapter 22 is New Jersey's operating
permit rule that was separately approved under title V of the Clean Air
Act and therefore Subchapter 22 should not have been submitted as a SIP
revision. EPA has reviewed the new amendments to Subchapter 22 and will
formally respond to New Jersey with a letter.
New Jersey amended Subchapter 19 to reduce emissions of
NOX in response to emission reduction shortfalls, identified
by EPA (64 FR 70380, December 16, 1999), for attainment of New Jersey's
1-hour ozone standard. New Jersey amended Subchapter 16 to be
consistent with amendments to Subchapter 19. Except for certain OMET
provisions in Subchapters 8, 16, and 19, and compliance dates beyond
November 15, 2007 for repowering and innovative control technology, New
Jersey's state-adopted Subchapters 16 and 19 are fully approvable as a
SIP-strengthening measure for New Jersey's ground level ozone SIP. The
amendments to Subchapters 16 and 19 in New Jersey's submittal to EPA
meet New Jersey's commitment by adopting control measures for
additional emission reductions to attain the 1-hour ozone
[[Page 41627]]
standard and close the shortfall. Because EPA is determining that the
State has now adopted measures to fulfill its SIP commitment to address
the NOX shortfall, EPA will not proceed with the May 27,
2004 (69 FR 30249) proposed Finding of Failure to Implement. For a
detailed discussion on the content and EPA's analysis of New Jersey's
SIP submittal, the reader is referred to EPA's proposed rulemaking
action (72 FR 11812, March 14, 2007).
II. What Comments Were Received and How Has EPA Responded to Them?
The public comment period on EPA's proposed approval of New
Jersey's December 16, 2005 SIP submittal ended on April 13, 2007. EPA
received one comment on the proposed approval action. The comment
addressed EPA's proposed approval of the rule regarding emergency
generators. Although EPA proposed to approve the rule, EPA (1) noted
that in February 2006 the Agency sent a letter to the State indicating
that NSR and title V permits should continue to include an hours of
operation limit in permits; and (2) recommended that New Jersey revise
its regulations to include emergency generator restrictions that were
in the previous SIP-approved version of the rule. The comment and EPA's
response follows.
Comments: The Division of Air Quality, New Jersey Department of
Environmental Protection (NJDEP) commented that it ``disagrees with the
USEPA suggestion that all NJDEP issued permits for emergency units
include an operating hour limitation to cover emergencies (i.e., 500
hours per year). Rather, the only operating time limitation in permits
for emergency units should be that time needed for testing or
maintenance, as per manufacturer's specifications and government safety
ordinances.'' NJDEP continued, ``It is unreasonable to base maximum
potential emissions on emergency scenarios which may or may not
materialize.'' Additionally, NJDEP noted that the Subchapter 19
definition of ``Emergency Generator'' and ``Emergency'' make the 500
hour limitation superfluous and that if operation of an emergency
generator is consistent with those definitions an hourly restriction in
unnecessary. NJDEP also noted that it currently utilizes a total
operating hour limit in title V permits as requested by EPA, but
objects to its use there also.
Response: EPA notes that it did not propose to condition approval
of the SIP rule on the recommendations it made in the February 2006
letter or in the proposed rule. Thus, these recommendations were not
intended to have binding effect. Because it is not necessary for the
rules to reflect these recommendations in order to be fully approvable,
EPA is moving forward with its approval. EPA will continue to discuss
with New Jersey the concerns noted in their comment, which concerns
were raised by EPA with respect to New Jersey's permitting programs.
Specifically, as noted in EPA's proposed rule, potential to emit (PTE)
requirements for emergency generators should be included in the
provisions of New Jersey's permitting regulations that identify which
sources must obtain a permit, i.e. Subchapters 8 and 22. For rule
consistency, EPA believes it appropriate, although not required, that
New Jersey revise the current state-adopted Subchapter 19 to include
the emergency generator restrictions (e.g., (1) the 500 hour annual
operating restriction, and (2) the 25 tons per year (tpy) PTE source
exemption).
III. What Role Does This Rule Play in the Ozone SIP?
When EPA evaluated New Jersey's 1-hour ozone attainment
demonstrations, EPA determined that additional emission reductions were
needed for the State's severe nonattainment areas in order for the
State to attain the 1-hour ozone standard (64 FR 70380; December 16,
1999). EPA provided that states in the Ozone Transport Region could
achieve these emission reductions through regional control programs.
New Jersey decided to participate with the other states in the
Northeast in an Ozone Transport Commission (OTC) regulatory development
effort which lead to six model control measures. These amendments to
Subchapter 19 incorporate a portion of the OTC model rule for
additional NOX control measures. The emission reductions
from this control measure fully meet the commitment in the New Jersey
SIP to achieve an additional 0.88 tpy NOX reduction in the
New Jersey portion of the Philadelphia, Wilmington, Trenton
nonattainment area and 3.45 tpy NOX reduction in the New
Jersey portion of the New York, Northern New Jersey, Long Island
nonattainment area. The emission reductions will help ensure attainment
of the 1-hour ozone standard.
IV. What Are EPA's Conclusions?
EPA evaluated New Jersey's submittal for consistency with the Act,
EPA regulations and EPA policy. The adopted new control measures will
strengthen the SIP by achieving the additional NOX emission
reductions that the State committed to achieve. Accordingly, EPA is
approving the revisions to Subchapter 19, and related revisions to
Subchapter 16, as adopted on September 8, 2005, except that EPA is not
acting, at this time, on OMET Program provisions in Subchapters 16 and
19 or the new amendments to phased compliance plans by repowering and
innovative control technology in sections 19.21 and 19.23,
respectively. Additionally, EPA is not approving any dates that allow
for NOX RACT compliance beyond May 31, 1995, in general, and
beyond May 1, 1999 for completion of repowering, for sources that
should have complied by those dates as required in the EPA-approved
SIP. At a later date, EPA will act on Subchapter 8, as adopted by New
Jersey on September 8, 2005.
With the adoption of Subchapter 19, New Jersey has fulfilled its
obligation to adopt all six control measures that New Jersey identified
as necessary to attain the 1-hour ozone standard. These six control
measures are applicable statewide and the emission reductions projected
from their implementation meets the additional emission reductions that
EPA identified as necessary to attain the 1-hour ozone standard.
Because New Jersey has now implemented the elements of its SIP that
were the subject of EPA's May 27, 2004 (69 FR 30249) proposed Finding
of Failure to Implement, EPA will not move forward to finalize that
finding.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
[[Page 41628]]
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 (65
FR 67249, November 9, 2000). This action also does not have federalism
implications because it does 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 (64
FR 43255, August 10, 1999). This action merely approves a State rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Act.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Act. 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 SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the 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. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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).
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 1, 2007. 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: July 13, 2007.
Alan J. Steinberg,
Regional Administrator, Region 2.
0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart FF--New Jersey
0
2. Section 52.1570 is amended by adding new paragraph (c)(81) to read
as follows:
52.1570 Identification of plans.
* * * * *
(c) * * *
* * * * *
(81) Revisions to the State Implementation Plan for ozone dated
December 16, 2005 by the State of New Jersey Department of
Environmental Protection (NJDEP) that establishes revised control
measures for achieving additional reductions of NOX
emissions from stationary combustion sources.
(i) Incorporation by reference:
(A) Title 7, Chapter 27, Subchapter 19, of the New Jersey
Administrative Code entitled ``Control and Prohibition of Air Pollution
from Oxides of Nitrogen,'' effective October 17, 2005 and Title 7,
Chapter 27, Subchapter 16 of the New Jersey Administrative Code
entitled ``Control and Prohibition of Air Pollution by Volatile Organic
Compounds,'' effective October 17, 2005.
(ii) Additional information:
(A) December 16, 2005 letter from Commissioner Bradley M. Campbell,
NJDEP, to Alan J. Steinberg, EPA, requesting EPA approval of revisions
to Subchapters 8, 16, 19, and 22.
0
3. In 52.1605, the table is amended by revising the entries for
Subchapters 16 and 19 under the headings ``Title 7, Chapter 27'' to
read as follows:
Sec. 52.1605 EPA-approved New Jersey regulations.
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State regulation State effective date EPA approved date Comments
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* * * * * * *
Title 7, Chapter 27
* * * * * * *
Subchapter 16, ``Control and October 17, 2005.............. July 31, 2007 Subchapter 16 is
Prohibition of Air Pollution by [Insert FR page approved into the SIP
Volatile Organic Compounds.'' citation]. except for Open Market
Emissions Trading
(OMET) provisions at
16.1A(g) and 16.1A(h).
[[Page 41629]]
* * * * * * *
Subchapter 19, ``Control and October 17, 2005.............. July 31, 2007 Subchapter 19 is
Prohibition of Air Pollution [Insert FR page approved into the SIP
from Oxides of Nitrogen.'' citation]. except for the
following provisions:
(1) Open Market
Emissions Trading
(OMET) provisions at
19.3(g), 19.3(h), 19.27
and 19.27 Appendix; and
(2) New amendments to
phased compliance plan
through repowering in
Sec. 19.21 that allow
for implementation
beyond May 1, 1999; and
(3) New amendments to
phased compliance plan
through the use of
innovative control
technology in Sec.
19.23 that allow for
implementation beyond
May 1, 1999.
* * * * * * *
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[FR Doc. E7-14480 Filed 7-30-07; 8:45 am]
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