

[Federal Register: July 31, 2007 (Volume 72, Number 146)]
[Rules and Regulations]               
[Page 41626-41629]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy07-11]                         

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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, 
Gardella.anthony@epa.gov, 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.

----------------------------------------------------------------------------------------------------------------
         State regulation               State effective date        EPA approved date           Comments
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
                                               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]

BILLING CODE 6560-50-P
