UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION II AIR PROGRAMS BRANCH

Technical Support Document 

for 

EPA’s Proposed Rulemaking

for the

New Jersey State Implementation Plan Revision:

State Implementation Plan Revision 

For Meeting the Infrastructure Requirements

In the Clean Air Act

Dated February 2008 and January 2010

	2013

Table of Contents

I.  What is the Background for this Action?

II. What is a Section 110(a)(1) and (2) SIP?

III.	Scope of Infrastructure SIPs

IV. What did New Jersey Submit?

V. What are the required elements under Section 110(a)(1) and   (2)?

VI. How do the New Jersey Infrastructure Submittals Meet the
Requirements under Section 110(a)(1) and (2) for the 1997 8-hour ozone
NAAQs, the 1997 and 2006 PM2.5 NAAQS?

Emission limits and other control measures –Section 110(a)(2)(A)

Ambient air quality monitoring, compilation, data analysis, and
reporting – Section 110(a)(2)(B)

Enforcement and stationary source permitting – Section 110(a)(2)(C)

Interstate transport – Section 110(a)(2)(D)

Adequate resources - Section 110(a)(2)(E):  

Stationary source emissions monitoring and reporting –Section
110(a)(2)(F)

Emergency powers and contingency plans –Section 110(a)(2)(G)

Future SIP revisions - Section 110(a)(2)(H):  

State Implementation Plan revisions for new nonattainment areas –
Section 110(a)(2)(I)

Consultation and public notification – Section 110(a)(2)(J)

K. Air quality modeling and reporting – Section 110(a)(2)(K)

L. Major stationary source permitting fees –Section 110(a)(2)(L)

M. Consultation with local entities – Section 110(a)(2)(M)

I. What is the Background for this Action?

On July 18, 1997, EPA promulgated a revised national ambient air quality
standard (NAAQS) for ozone (62 FR 38856) and new NAAQSs for fine
particle matter (PM2.5)(62 FR 38652).  The revised ozone NAAQS was based
on 8-hour average concentrations.  The 8-hour averaging period replaced
the previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm.  The new PM2.5
NAAQS was established on health-based annual standards for PM2.5 of 15.0
micrograms per cubic meter (µg/m3) based on a 3-year average of annual
mean PM2.5 concentrations and a 24-hour standard of 65 µg/m3 based on a
3-year average of the 98th percentile of 24-hour concentrations.  

The Clean Air Act (CAA) requires State Implementation Plans (SIPs)
meeting the requirements of sections 110(a)(1) and (2) be submitted by
states within 3 years after promulgation of a new or revised standard. 
Sections 110(a)(1) and (2) require states to address basic SIP
requirements, including emissions inventories, monitoring, and modeling
to assure attainment and maintenance of the standards.  States were
required to submit such SIPs for the 1997 standards to EPA no later than
June 2000.  However, intervening litigation over the 1997 8-hour ozone
standards created uncertainty about how to proceed and certain states
did not provide the required "infrastructure" SIP submission for this
newly promulgated standard.

Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission.  The contents of such SIP submissions may
also vary depending upon what provisions the state's existing SIP
already contains.  In the case of the 1997 8-hour ozone NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
ozone standards.  

On October 17, 2006 (71 FR 61144), effective December 18, 2006,   EPA
revised the 24-hour average PM2.5 primary and secondary NAAQS from 65
µg/m3 to 35 µg/m3.  As required by section 110(a)(1) of the CAA, the
110(a)(2) submittals were due within three years after promulgation of
the revised standard.

II. What is a Section 110(a)(1) and (2) SIP?

Sections 110(a)(1) and (2) of the CAA require, in part, that states
submit to EPA plans to implement, maintain and enforce each of the NAAQS
promulgated by EPA.  Sections 110(a)(1) and (2) require states to
address basic SIP requirements including emission inventories,
monitoring, and modeling to assure attainment and maintenance of the
standards.  By statute, SIPs meeting the requirements of Sections
110(a)(1) and (2) are to be submitted by states within three years after
promulgation of a new or revised standard.  These SIPs are commonly
called infrastructure SIPs.  

EPA issued a guidance document regarding infrastructure SIPs on October
2, 2007, entitled, "Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient
Air Quality Standards."  EPA also issued a September 25, 2009 guidance
memo entitled "Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24 Hour Fine Particle NAAQS", which
clarified in further detail, certain elements to meet the requirements
of sections 110(a)(1) and (2) of the CAA for both the 1997 and 2006
PM2.5 NAAQS.  Specifically, EPA provided additional guidance for
satisfying the section 110(a)(2)(D) requirements for the 2006 PM2.5
NAAQS, as well as guidance for satisfying the section 110(a)(2)(G)
requirements for both the 1997 and 2006 PM2.5 NAAQS 

Both guidance documents noted that to the extent an existing SIP already
meets the Section 110(a)(1) and (2) requirements, states need only to
certify that fact to EPA.  

On March 4, 2004, Earth Justice submitted a notice of intent to sue
related to EPA's failure to take action, i.e., issue finding of failure
to submit, against states that had failed to make SIP submissions
related to CAA Sections 110(a)(1) and (2), the "infrastructure"
requirements.  

On March 10, 2005, the EPA entered into a Consent Decree with Earth
Justice that obligated the EPA to make official findings whether states
had made required implementation plan submissions by dates certain. The
Consent Decree obligated the EPA to determine whether states have made
SIP submissions required to meet Section 110(a)(1) and (2) related to
interstate transport by no later than March 15, 2005. The Consent Decree
also obligates the EPA to make a determination whether states have made
submissions necessary to meet the remaining requirements under Section
110(a)(1) and (2) by December 15, 2007, for the 8-Hour Ozone National
Ambient Air Quality Standard, and by October 5, 2008, for the Fine
Particulate Matter National Ambient Air Quality Standard.  It should be
noted that the latter determinations pertain only to whether the
submissions are complete, pursuant to Section 110(k)(1)(A), and do not
constitute EPA approval or disapproval of such submissions. In addition,
the determinations required by the Consent Decree explicitly exclude any
determinations regarding: (i) submissions required by Section
110(a)(2)(C) to the extent that subsection pertains to a nonattainment
area new source review permit program in Part D Title I of the CAA; and
(ii) submissions required by Section 110(a)(2)(I) for Part D Title I
nonattainment plans. 

EPA entered into a Consent Decree with Earth Justice which required EPA,
among other things, to make a determination whether states have made the
SIP submissions necessary for EPA to determine whether each state has
made complete submissions, pursuant to 110(k)(1)(A) to meet the
requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by
December 15, 2007.  Subsequently, EPA received an extension of the date
to complete this Federal Register notice until March 17, 2008, based
upon an agreement to make the findings with respect to submissions made
by January 7, 2008.  In accordance with the consent decree, EPA made
completeness findings for each state based upon what the Agency received
from each state as of January 7, 2008.  

On March 27, 2008, EPA published a final rulemaking entitled,
"Completeness Findings for Section 110(a) State Implementation Plans;
8-hour Ozone NAAQS," making a finding that each state had submitted, or
failed to submit, a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 8-hour
ozone NAAQS. (See 73 FR 16205.)  On October 22, 2008, EPA published a
final rulemaking entitled, "Completeness Findings for Section 110(a)
State Implementation Plans Pertaining to the Fine Particulate Matter
(PM2.5) NAAQS," making a finding that each state had submitted, or
failed to submit, a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 PM2.5
NAAQS. (See 73 FR 62902.) For those states that did receive findings,
the findings of failure to submit for all or a portion of a state's SIP
established a 24-month deadline for EPA to promulgate a Federal
Implementation Plan (FIP) to address the outstanding SIP elements
unless, prior to that time, the affected states submit, and EPA
approves, the required SIPs.  However, the findings of failure to submit
did not impose sanctions or set deadlines for imposing sanctions as
described in section 179 of the CAA, because these findings do not
pertain to the elements contained in the Title I part D plan for
nonattainment areas as required under section 110(a)(2)(I). 
Additionally, the findings of failure to submit for the infrastructure
submittals is not a SIP call pursuant to section 110(k)(5).  The
findings that all or portions of a state's submission are complete
establish a 12-month deadline for EPA to take action upon the complete
SIP elements in accordance with section 110(k).  

This action does not address the requirements of 110(a)
(2)(D)(i)(I)requirements for the 1997 ozone, 1997 PM2.5 NAAQS and 2006
PM2.5 NAAQS.  Those requirements have been addressed by separate actions
issued by EPA: See April 25, 2005 Federal Register (70 FR 21147) for
EPA’s Finding of Failure to Submit Section 110 State Implementation
Plans for Interstate Transport for the National Ambient Air Quality
Standards for 8-Hour ozone and PM2.5. See October 1, 2007 Federal
Register (72 FR 55666) for EPA’s approval of New Jersey’s Clean Air
Interstate Rule. See July 20, 2011 Federal Register (76 FR 43153) for
EPA’s disapproval of the New Jersey and New York Interstate Transport
Plan Revision for the 2006 24-Hour PM2.5 NAAQS.  On July 6, 2011, the
EPA Administrator signed the Cross-State Air Pollution Rule (CSAPR) to
address 110(a)(2)(D)(i)(I) for these NAAQS. See CSAPR website at  
HYPERLINK "http://www.epa.gov/airquality/transport/index.html" 
http://www.epa.gov/airquality/transport/index.html .  

On August 21, 2012, the U.S. Circuit Court of Appeals for the District
of Columbia issued a decision to vacate CSAPR. In that decision, it also
ordered EPA to continue administering CAIR “pending the promulgation
of a valid replacement.”  EME Homer City Generation, L.P. v. EPA, No.
11-1302 (D.C. Cir., August 21, 2012).

III.	Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS
for various states across the country.  Commenters on EPA’s recent
proposals for some states raised concerns about EPA statements that it
was not addressing certain substantive issues in the context of acting
on those infrastructure SIP submissions.  Those Commenters specifically
raised concerns involving provisions in existing SIPs and with EPA’s
statements in other proposals that it would address two issues
separately and not as part of actions on the infrastructure SIP
submissions:  (i) existing provisions related to excess emissions during
periods of start-up, shutdown, or malfunction at sources, that may be
contrary to the CAA and EPA’s policies addressing such excess
emissions (“SSM”); and (ii) existing provisions related to
“director’s variance” or “director’s discretion”  that
purport to permit revisions to SIP approved emissions limits with
limited public process or without requiring further approval by EPA,
that may be contrary to the CAA (“director’s discretion”).  EPA
notes that there are two other substantive issues for which EPA likewise
stated in other proposals that it would address the issues separately: 
(i) existing provisions for minor source new source review programs that
may be inconsistent with the requirements of the CAA and EPA’s
regulations that pertain to such programs (“minor source NSR[New
Source Review]”); and (ii) existing  provisions for PSD programs that
may be inconsistent with current requirements of EPA’s “Final NSR
Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (“NSR Reform”).  In light of the comments,
EPA believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth.  It is important to emphasize that EPA is
taking the same position with respect to these four substantive issues
in this action on the infrastructure SIPs for the 1997 8-hour ozone
NAAQS from New Jersey.

EPA intended the statements in the other proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action.  EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency’s approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state.  Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP approved
SSM provisions that are contrary to the CAA and EPA policy, but that
“in this rulemaking, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during SSM of
operations at facilities.”  EPA further explained, for informational
purposes, that “EPA plans to address such State regulations in the
future.”  EPA made similar statements, for similar reasons, with
respect to the director’s discretion, minor source NSR, and NSR Reform
issues.  EPA’s objective was to make clear that approval of an
infrastructure SIP for these ozone and PM2.5 NAAQS should not be
construed as explicit or implicit re-approval of any existing provisions
that relate to these four substantive issues.  EPA is reiterating that
position in this action on the infrastructure SIP for New Jersey.

Unfortunately, the Commenters and others evidently interpreted these
statements to mean that EPA considered action upon the SSM provisions
and the other three substantive issues to be integral parts of acting on
an infrastructure SIP submission, and therefore that EPA was merely
postponing taking final action on the issues in the context of the
infrastructure SIPs.  This was not EPA’s intention.  To the contrary,
EPA only meant to convey its awareness of the potential for certain
types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions. 
EPA’s intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state.  To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k) or
under section 110(c).  Given the confusion evidently resulting from
EPA’s statements in those other proposals, however, we want to explain
more fully the Agency’s reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.

The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1).  That provision requires that states must make a SIP
submission “within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)” and
that these SIPs are to provide for the “implementation, maintenance,
and enforcement” of such NAAQS.  Section 110(a)(2) includes a list of
specific elements that “[e]ach such plan” submission must meet.  EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
“infrastructure SIPs.”  This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as “nonattainment SIP” submissions
required to address the nonattainment planning requirements of  part D,
“regional haze SIP” submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions  required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements
for these infrastructure SIPs, and section 110(a)(2) provides more
details concerning the  required contents of these infrastructure SIPs,
EPA believes that many of the specific statutory provisions are facially
ambiguous.  In particular, the list of required elements provided in
section 110(a)(2) contains a wide variety of disparate provisions, some
of which pertain to required legal authority, some of which pertain to
required substantive provisions, and some of which pertain to
requirements for both authority and substantive provisions.  Some of the
elements of section 110(a)(2) are relatively straightforward, but others
clearly require interpretation by EPA through rulemaking, or
recommendations through guidance, in order to give specific meaning for
a particular NAAQS. 

 

Notwithstanding that section 110(a)(2) provides  that “each” SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).   This illustrates that EPA
must determine which provisions of section 110(a)(2) may be applicable
for a given infrastructure SIP submission.  Similarly, EPA has
previously decided that it could take action on different parts of the
larger, general “infrastructure SIP” for a given NAAQS without
concurrent action on all subsections, such as  section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter “interstate
transport” provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.  This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state’s
implementation plans.  Finally, EPA notes that not every element of
section 110(a)(2) would be relevant, or as relevant, or relevant in the
same way, for each new or revised NAAQS and the attendant infrastructure
SIP submission for that NAAQS.  For example, the monitoring requirements
that might be necessary for purposes of section 110(a)(2)(B) for one
NAAQS could be very different than what might be necessary for a
different pollutant.  Thus, the content of an infrastructure SIP
submission to meet this element from a state might be very different for
an entirely new NAAQS, versus a minor revision to an existing NAAQS.

Similarly, EPA notes that other types of SIP submissions required under
the statute also must meet the requirements of section 110(a)(2), and
this also demonstrates the need to identify the applicable elements for
other SIP submissions.  For example, nonattainment SIPs required by part
D likewise have to meet the relevant subsections of section 110(a)(2)
such as section 110(a)(2)(A) or (E).  By contrast, it is clear that
nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas.  Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas.  As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.  

Given the potential for ambiguity of the statutory language of section
110(a)(1) and (2), EPA believes that it is appropriate for EPA to
interpret that language in the context of acting on the infrastructure
SIPs for a given NAAQS.  Because of the inherent ambiguity of the list
of requirements in section 110(a)(2), EPA has adopted an approach in
which it reviews infrastructure SIPs against this list of elements “as
applicable.”  In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the purpose
of the submission or the NAAQS in question, would meet each of the
requirements, or meet each of them in the same way.  EPA elected to use
guidance to make recommendations for infrastructure SIPs for these ozone
and PM2.5 NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the
infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.  Within this guidance document, EPA described the
duty of states to make these submissions to meet what the Agency
characterized as the “infrastructure” elements for SIPs, which it
further described as the “basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards.”  As further identification of these
basic structural SIP requirements, “attachment A” to the guidance
document included a short description of the various elements of section
110(a)(2) and additional information about the types of issues that EPA
considered germane in the context of such infrastructure SIPs.  EPA
emphasized that the description of the basic requirements listed on
attachment A was not intended “to constitute an interpretation of”
the requirements, and was merely a “brief description of the required
elements.”  EPA also stated its belief that with one exception, these
requirements were “relatively self explanatory, and past experience
with SIPs for other NAAQS should enable States to meet these
requirements with assistance from EPA Regions.”  However, for the one
exception to that general assumption (i.e., how states should proceed
with respect to the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS), EPA gave much more specific recommendations.  But for
other infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each State would
work with its corresponding EPA regional office to refine the scope of a
State’s submittal based on an assessment of how the requirements of
section 110(a)(2) should reasonably apply to the basic structure of the
State’s implementation plans for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to
states with respect to the infrastructure SIPs for the 2006 PM2.5 NAAQS.
 In the 2009 Guidance, EPA addressed a number of additional issues that
were not germane to the infrastructure SIPs for the 1997 8-hour ozone
and 1997 PM2.5 NAAQS, but were germane to these SIP submissions for the
2006 PM2.5 NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that
EPA had bifurcated from the other infrastructure elements for those
specific 1997 ozone and PM2.5 NAAQS).  Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director’s discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so.  The SSM and director’s discretion
issues implicate section 110(a)(2)(A), and the minor source NSR and NSR
Reform issues implicate section 110(a)(2)(C).  In the 2007 Guidance and
the 2009 Guidance, however, EPA did not indicate to states that it
intended to interpret these provisions as requiring a substantive
submission to address these specific issues in existing SIP provisions
in the context of the infrastructure SIPs for these NAAQS.  Instead,
EPA’s 2007 Guidance merely indicated its belief that the states should
make submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS.  EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP.  Thus, EPA’s proposals for other states
mentioned these issues not because the Agency considers them issues that
must be addressed in the context of an infrastructure SIP as required by
section 110(a)(1) and (2), but rather because EPA wanted to be clear
that it considers these potential existing SIP problems as separate from
the pending infrastructure SIP actions.  The same holds true for this
action on the infrastructure SIPs for New Jersey.

EPA believes that this approach to the infrastructure SIP requirement is
reasonable because it would not be feasible to read section 110(a)(1)
and (2) to require a top to bottom, stem to stern, review of each and
every provision of an existing SIP merely for purposes of assuring that
the state in question has the basic structural elements for a
functioning SIP for a new or revised NAAQS.  Because SIPs have grown by
accretion over the decades as statutory and regulatory requirements
under the CAA have evolved, they may include some outmoded provisions
and historical artifacts that, while not fully up to date, nevertheless
may not pose a significant problem for the purposes of
“implementation, maintenance, and enforcement” of a new or revised
NAAQS when EPA considers the overall effectiveness of the SIP.  To the
contrary, EPA believes that a better approach is for EPA to determine
which specific SIP elements from section 110(a)(2) are applicable to an
infrastructure SIP for a given NAAQS, and to focus attention on those
elements that are most likely to need a specific SIP revision in light
of the new or revised NAAQS.  Thus, for example, EPA’s 2007 Guidance
specifically directed states to focus on the requirements of section
110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of
underlying EPA regulations for emergency episodes for this NAAQS and an
anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs.  These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency.  Section 110(k)(5) authorizes EPA to issue a “SIP
call” whenever the Agency determines that a state’s SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.  Section
110(k)(6) authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.  Significantly, EPA’s determination that
an action on the infrastructure SIP is not the appropriate time and
place to address all potential existing SIP problems does not preclude
the Agency’s subsequent reliance on provisions in section 110(a)(2) as
part of the basis for action at a later time.  For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director’s discretion provisions in the course of acting
on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be
among the statutory bases that the Agency cites in the course of
addressing the issue in a subsequent action.   

IV. What did New Jersey Submit?

EPA is acting on two SIP submittals which address the Section 110
infrastructure requirements for three NAAQSs: the 1997 8-hour ozone
NAAQS, the 1997 and the 2006 PM 2.5 NAAQSs. 

EPA is also acting on the infrastructure elements that were satisfied
with the approval of the New Jersey Regional Haze SIP.

February 25, 2008 SIP submission        

The New Jersey’s Section 110 infrastructure submittal was submitted by
the New Jersey Department of Environmental Protection (NJDEP) on
February 25, 2008 and addressed the 1997 8-hour ozone and annual fine
particulate matter (PM2.5) NAAQSs. On March 27, 2008, 73 FR 16205, EPA
made a finding of failure to submit as part of the 1997 8-hour ozone,
the Part C PSD permit program required by 110(a)(2)(C).  On October 22,
2008, 73 FR 62902, EPA made a finding of failure to submit as part of
the 1997 PM2.5 NAAQS, the Part C PSD permit program required by
110(a)(2)(C) and (J) and the contingency plans portion of the section
110(a)(2)(G) concerning emergency powers and adequate contingency plans.
 

The New Jersey February 2008 section 110 submittal demonstrates how the
State has a plan in place that meets the requirements of Section 110 for
the 1997 8-hour ozone and annual PM2.5 NAAQSs.  This plan references the
current New Jersey Air Quality SIP, the New Jersey Statutes Annotated
(NJSA) and/or the New Jersey Administrative Code (NJAC).  A public
hearing was held on January 28, 2008 for New Jersey's 110 infrastructure
submittal and written comments were accepted until January 31, 2008. 
All of the New Jersey General Statutes (NJSA) and New Jersey
Administrative Code (NJAC)(air pollution control regulations) provisions
referenced in the submittal are publicly available. All the NJDEP
regulations included in the New Jersey SIP that are referenced in the
submittal were subject to public notice and hearing when adopted.  As
explained below, the State has the necessary infrastructure, resources,
and general authority to implement the 1997 ozone and annual PM2.5
NAAQSs, except where specifically noted.  It should be noted that the
NJDEP has made numerous SIP revisions to meet requirements for the
previous 1-hour ozone standard, the revised 1997 ozone NAAQS and the
PM2.5 NAAQS.  Those New Jersey air pollution control regulations that
are approved by EPA and incorporated into the New Jersey SIP can be
found at 40 CFR 52.1605 and are posted on the Internet at:   HYPERLINK
"http://www.epa.gov/region02/air/sip/nj_reg.htm" 
http://www.epa.gov/region02/air/sip/nj_reg.htm .

Detailed information was included in the Attachments:

Attachment A - Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient
Air Quality Standards;

Attachment B – New Jersey Department of Environmental Protection
Transport SIP Letter;

Attachment C – Public Participation;

Attachment D – Notice of Availability; and

Attachment E – Documentation of the Notices That Appeared in the
Newspapers and the New Jersey Register.

  

January 15, 2010 SIP submission

The New Jersey’s Section 110 infrastructure submittal for the 2006
PM2.5 24-hour standard was dated January 15, 2010 and received by EPA on
January 20, 2010.  The submittal was deemed complete on July 15, 2010.
 It was based on a certification that New Jersey satisfies the
infrastructure requirements of section 110(a)(1) and(a)(2) through its
existing infrastructure SIP submitted on February 25, 2008.  It also
provided additional material on its emergency action plan, PSD program
and significant contribution by New Jersey.  

Detailed information was included in the Appendices:

Appendix A – Infrastructure Elements Not Including Sections
110(a)(2)(C), (D), (G), or (J);

Appendix B – New Jersey Department of Environmental Protection
Transport SIP Letter dated December 22, 2006;

Appendix C – USEPA Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS) dated September 25, 2009;

Appendix D – State Collaborative Documentation; and

Appendix E – New Jersey’s Significant Contribution Analysis to Meet
Section 110(a)(2)(D)(i).

IV. What are the required elements under Section 110(a)(1) and (2)?

Section 110(a)(1) provides the procedural and timing requirements for
SIPs.  Section 110(a)(2) lists specific elements that states must meet
for "infrastructure" SIP requirements related to a newly established or
revised NAAQS.  These requirements include SIP infrastructure elements
such as modeling, monitoring, and emissions inventories that are
designed to assure attainment and maintenance of the NAAQS.  The
requirements that are the subject of this action are listed below, with
their corresponding CAA subsection, and in EPA's October 2, 2007,
memorandum entitled "Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5 National Ambient
Air Quality Standards."  Some of these requirements are not part of the
infrastructure SIP, but due as part of the states nonattainment SIP, but
are listed below for completeness.

110(a)(2)(A) : Emission limits and other control measures.

110(a)(2)(B) : Ambient air quality monitoring/data system.

110(a)(2)(C) : Program for enforcement of control measures.

110(a)(2)(D) : Interstate transport.

110(a)(2)(E) : Adequate resources.

110(a)(2)(F) : Stationary source monitoring and reporting.

110(a)(2)(G) : Emergency power.

110(a)(2)(H) : Future SIP revisions. 

110(a)(2)(I) : Nonattainment area plan and plan revisions under part D

110(a)(2)(J) : Consultation with Government officials, public
notification, PSD and visibility protection.

110(a)(2)(K) : Air quality modeling/data.

110(a)(2)(l) : Permitting Fees.

110(a)(2)(M) : Consultation/participation by affected local entities.

VI. How do the New Jersey Infrastructure Submittals Meet the
Requirements under Section 110(a)(1) and (2) for the 1997 8-hour ozone
NAAQS, the 1997 and 2006 PM2.5 NAAQS?

The NJDEP, February 2008 submittal, for the section 110(a)(2)
infrastructure elements lists specific provisions of the NJSA, the NJAC
and the New Jersey Air Pollution SIP and shows how the provisions of
these laws and regulations meet the appropriate section 110 requirements
as outlined in EPA's October 2, 2007 guidance.  The NJDEP, January 15,
2010 submittal, is a certification document which certifies compliance
with section 110(a)(1) and (2) through its February 2008 infrastructure
SIP submittal and focuses on the sections that EPA made findings for in
October 2008.

Unless specifically identified in a particular section, EPA’s
evaluation will apply to ozone and both the annual and 24 hour PM2.5
NAAQSs.

The specific sections of 110 are listed below, followed by a summary of
how the NJDEP submissions meet these requirements and EPA’s evaluation
of the New Jersey submittals.  The reader is referred to the NJDEP
submissions, along with their attachments and appendices, and the New
Jersey Statutes Annotated and New Jersey Administrative Code, for New
Jersey’s complete explanation of how New Jersey satisfies the section
110 requirements.

A.	Emission limits and other control measures – Section 110(a)(2)(A)  

Section 110(a)(2)(A) requires SIPs to include enforceable emission
limits and other control measures, means or techniques, schedules for
compliance and other related matters.  EPA notes that the specific
nonattainment area plan requirements of section 110(a)(2)(I) are subject
to the timing requirement of section 172, not the timing requirement of
section 110(a)(1), and also that SIPs to meet this section are not
covered by the Consent Decree.

State Submittal:

New Jersey Department of Environmental Protection (NJDEP) is authorized
by the State’s Air Pollution Control Act (New Jersey Statutes
Annotated (NJSA)) Title 26:2C-8, 9, and 19 to establish emission limits.
 New Jersey indicates the actual emission limits required as part of the
8-hour ozone SIP are not required to be part of the 110(a)
Infrastructure SIP, but are to be found in the respective pollutant
specific SIP revisions.

EPA Evaluation:

EPA has reviewed the authority provided by NJSA 26:2C-8, 9, and 19 and
is satisfied that these provisions provide NJDEP with the ability to
adopt and enforce regulations, control measures including emission
limits and compliance schedules.  While New Jersey has not provided the
actual control measures and emission limits as part of the
Infrastructure SIP, it has provided the control measures and emission
limits as part of its pollutant specific SIP revisions.

EPA conditionally approved NJ’s 8-hour ozone RACT Plan on May 15, 2009
(74 FR 22837).  EPA proposed to approve the last control measures NJ
committed to adopt as part of its RACT SIP on July 22, 2010 (75 FR
42672) and on December 22, 2010 (75 FR 80340) EPA approved the
individual rules and replaced the conditional approval of the RACT SIP
with a full approval.  All the control measures along with the emission
limitations that New Jersey identified as necessary for attaining the
8-hour ozone standard have been adopted by the State, submitted as SIP
revisions and approved as SIP revisions by EPA. The complete list of EPA
approved New Jersey rules can be found at 40 CFR 52.1605.

As part of the PM2.5 Infrastructure SIP, New Jersey identified its
enforceable emission limits and control measures as contained in New
Jersey Administrative Code (NJAC) 7:27.  New Jersey submitted its 1997
PM2.5 SIP and EPA proposed approval on December 12, 2012 (77 FR 74421). 
The 2006 PM2.5 SIP is due December 2012.  However, New Jersey is
currently attaining both the annual and 24-hour PM2.5 standards and has
proposed a maintenance and redesignation SIP revision.  Based on a Clean
Data Determination a 24-hour PM2.5 attainment plan is not required as
long as the standard is attained.  EPA proposes to find that New Jersey
has satisfied the section 110(a)(2)(A) requirements for ozone and PM2.5.

B.	Ambient air quality monitoring, compilation, data analysis –
Section 110 (a)(2)(B)

Section 110(a)(2)(B) requires SIPs to include provisions to provide for
establishment and operation of ambient air quality monitors, collecting
and analyzing ambient air quality data, and making these data available
to EPA upon request.    

State Submittal:

NJDEP is authorized by the State’s Air Pollution Control Act, NJSA
Title 26:2C-1, specifically 26:2C-9.a., to conduct ambient air quality
monitoring and to report the results.  New Jersey operates an extensive
air quality monitoring network that collects air quality data that are
compiled, analyzed, and reported on.  This information is also made
available on the NJDEP’s website.

EPA Evaluation:

EPA has reviewed the authority provided by NJSA 26:2C-9.a. and is
satisfied that New Jersey has adequate authority to conduct a monitoring
program and report the results that fulfills the requirements of section
110(a)(2)(B) for both the 8-hr ozone and the PM2.5 NAAQSs.  New
Jersey’s latest Monitoring Plan was submitted on January 28, 2013 and
EPA approved New Jersey’s monitoring plan for all pollutants including
ozone and PM2.5 on March 29, 2011 and found no deficiencies.  The State
is monitoring ozone and PM2.5 at appropriate locations throughout the
State using EPA approved federal reference methods or equivalent
monitors.  The Monitoring Plan included planned changes to the
monitoring sites.  New Jersey has been submitting the air quality data
to EPA’s Air Quality System (AQS) data base on a quarterly basis and
makes this data, as well as various reports, available on its website  
HYPERLINK "http://www.njaqinow.net"  http://www.njaqinow.net  on a real
time basis.  EPA proposes to find that New Jersey has satisfied the
section 110(a)(2)(B) requirements for both ozone and PM2.5 NAAQSs.

C.	Enforcement and stationary source permitting - Section 110(a)(2)(C)

Section 110(a)(2)(C) requires states to include a program providing for
enforcement of all SIP measures and the regulation of construction of
new or modified stationary sources to meet Prevention of Significant
Deterioration (PSD) and nonattainment New Source Review requirements.

State Submittal:

The NJDEP’s enforcement of control measures and the air permitting
program for stationary sources are governed by NJSA 26:2C-19 and the
enforcement and permitting programs operate under regulations designated
in New Jersey Administrative Code (NJAC) 7:27 and NJAC 7:27A.

EPA Evaluation:

EPA has reviewed the authority provided by NJSA 26:2C-19.  EPA notes
that, besides NJSA 26:2C-19, NJSA 2C-9.b. provides additional
enforcement related authorities, specifically at 2C-9.b(4), (5), and
(8).  

NJSA 2C-9.b. (4) provides the NJDEP with authority to enter and inspect
any building or place, except private residences, for the purpose of
investigating an actual or suspected source of air pollution and
ascertaining compliance or noncompliance with any codes, rules, or
regulations.

NJSA 2C-9.b. (5) provides the NJDEP with the authority to receive or
initiate complaints of air pollution, hold hearings in connection with
air pollution, and institute legal proceedings for the prevention of air
pollution and for the recovery of penalties.

NJSA 2C-9.b. (8) provides the NJDEP with the authority to issue, renew,
reopen, and revise operating permits, and require any person who is
required to obtain an operating permit under the provisions of the
federal Clean Air Act to obtain an operating permit and to certify
compliance therewith for all air pollution sources.

NJSA 2C-19. provides the NJDEP with the authority to 

-  institute a civil action in a court for injunctive or any other
appropriate relief to prohibit and prevent such violation or violations
and the court may proceed in the action in a summary manner;

- collect civil administrative penalties;

- compromise and settle any claim for a penalty under this section in
such amount in the discretion of the department as may appear
appropriate and equitable under all of the circumstances;

- collect additional civil penalties for failure pay administrative
penalties in full; and

- further defines violations and penalties.

The New Jersey SIP contains provisions that require NOx to be treated as
a precursor for ozone such as, Subchapter 21 Emission Statements and
Subchapter 18 Control and Prohibition of Air Pollution from New or
Altered Sources Affecting Ambient Air Quality (Emission Offset Rules).

EPA is satisfied that New Jersey has adequate authority to conduct
enforcement programs for both 8-hr ozone and PM2.5 as required by
section 110 (a)(2)(C).

New Source Review

The statutory and regulatory programs that regulate the construction and
modification of major stationary sources in nonattainment and
attainment/unclassifiable areas are termed New Source Review (NSR) and
are provided under parts C and D of the Act, and 40 CFR 51.165, 51.166,
and 52.21.  Part C of the Act requires that each applicable
implementation plan prevent significant deterioration of air quality
(PSD).  The PSD program regulates the construction of any new major
stationary source or major modification at existing stationary sources
located in areas meeting the NAAQS.  Such areas are designated as
attainment/unclassifiable.  In a nonattainment area, any stationary
pollutant source with the potential to emit above a threshold amount of
any regulated NSR pollutant is considered a major stationary source. 
This threshold is generally 100 tons per year (tpy) but can be less in
some nonattainment areas for particular pollutants.  In PSD areas the
cutoff level may be either 100 tpy or 250 tpy, depending upon the source
(see Section 169(l)).  For greenhouse gases, there is an additional
requirement that a higher threshold of CO2e be exceeded. 75 FR 31514,
31523 (June 3, 2010).  New major sources or major modifications are
required by the Act to obtain an air pollution permit before beginning
construction.  

Minor NSR applies to stationary sources that are not required to have
PSD or nonattainment NSR (NNSR) permits.  The purpose of minor NSR
permits is to prevent the construction of sources that would interfere
with attainment or maintenance of a NAAQS or violate the control
strategy in nonattainment areas.  Also, minor NSR permits sometimes
contain permit conditions to limit the sources emissions to levels below
applicability thresholds for PSD and NNSR.  Section 110(a)(2)(C) creates
“a general duty on states to include a program in their SIP that
regulates the modification and construction of any stationary source as
necessary to assure that the NAAQS are achieved” (70 FR 71612, 71677).
 EPA provides states with a “broad degree of discretion” in
implementing their minor NSR programs (71 FR 48696, 48700).  The
regulations for minor NSR are provided in 40 CFR 51.160 through 51.164.

Prevention of Significant Deterioration

New Jersey has not promulgated regulations as part of the SIP for Part C
Prevention of Significant Deterioration (PSD) permit program and, as a
result, federal regulations at 40 CFR 52.21 are incorporated into the
applicable implementation plan for New Jersey.  New Jersey has been
delegated authority to implement 40 CFR 52.21. See 40 CFR 52.1603(b). 

On March 27, 2008 (73 FR 16207), EPA made a finding that New Jersey had
failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD
permit program) for the 1997 8-hour ozone standard for section 110
(a)(2)(C).  On 10/22/2008 (73 FR 62902) EPA made a similar finding for
the 1997 PM2.5 standard for Section 110 (a)(2)(C) and (J).  New Jersey
views that they have satisfied the requirement to have a PSD program by
the fact that they implement the Federal rules which have been delegated
to them. And that new NAAQSs are included in the referenced federal PSD
rules that continue in place.  EPA acknowledges that New Jersey is
implementing a PSD program by using the Federal rules at 40 CFR 52.21.  

EPA interprets Section 110(a)(2)(C) and(J) as requiring each state to
promulgate its own PSD regulations.  That is why EPA made a new finding
of failure to submit to New Jersey for failing to submit its own rules
addressing PSD for the new 8-hour ozone and PM2.5 NAAQSs.  New Jersey is
implementing the PSD program through the delegated federal PSD
regulations at 40 CFR 52.21 until New Jersey submits, and EPA approves,
a SIP revision.  A new FIP is not necessary for this deficiency, since
the existing FIP continues in place and it will not trigger any
sanctions. 

Nonattainment new source review program

New Jersey has a nonattainment area new source review program Subchapter
18, “Control and Prohibition of Air Pollution from New or Altered
Sources Affecting Ambient Air Quality (Emission Offset Rules)” that is
approved as part of the SIP (see 7/25/96,

61 FR 38591) and which New Jersey is implementing.  New Jersey’s NSR
program differs in some respects from EPA rules and guidance. New Jersey
has submitted an equivalency determination and SIP revision, and EPA is
in the process of reviewing the submittals.  EPA is not taking any
action to approve or disapprove any existing state rules with regard to
NSR reform requirements.  EPA will act on NNSR reform submittals through
a separate rulemaking process.

Minor Source Permitting

New Jersey’s minor source permitting requirements are contained at
NJAC 7:27 Subchapter 8, “Permits and Certificates for Minor Facilities
(and Major Facilities without an Operating Permit)” and the latest
action was approved at 62 FR 42414.  The SIP continues to require
preconstruction permits for minor sources and minor modifications. EPA
is not taking any action to approve or disapprove the existing State
rule with regard to minor source permitting.   

D.	Interstate transport –Section 110(a)(2)(D)

- Section 110(a)(2)(D)(i)

Section 110(a)(2)(D)(i) requires SIPs to address four separate elements.
 Section 110(a)(2)(D)(i)(I) provides that each state’s SIP must
include provisions prohibiting any source or other type of emissions
activity in one state from contributing significantly to (1)
nonattainment, or (2) interfering with maintenance of the NAAQS in
another state (referred to as prongs 1 and 2).  Section
110(a)(2)(D)(i)(II) provides that each state’s SIP must include
provisions prohibiting any source or other type of emissions activity in
one state emitting any pollutants in amounts which will interfere with
measures required to (3) prevent significant deterioration of air
quality or to (4) protect visibility in another state (referred to as
prongs 3 and 4).  

Prongs 1 and 2

This action does not act on the requirements of 110(a)(2)(D)(i)(I),
prongs 1 and 2, for the 1997 8-hour ozone NAAQS and the 1997 PM2.5
NAAQS, because they were addressed by previous EPA actions.  See 72 FR
55666, October 1, 2007.  For 2006 24-hour PM2.5, EPA disapproved New
Jersey’s SIP for prongs 1 and 2 on July 20, 2011, 76 FR 43153.  

Prong 3

    

State submittal:

In its Section 110 infrastructure submittal, submitted on January 20,
2010 for the 2006 PM2.5 NAAQS, New Jersey has certified that it has a
PSD program in place, and has indicated that their existing PSD and NSR
programs and subsequent revisions provide and will continue to provide
protection for new or modified sources to prevent further degradation of
attainment and maintenance areas.  New Jersey is addressing the
requirement regarding interference with measures required to meet the
implementation plan for any other state related to regional haze and
visibility through its Regional Haze SIP, which was submitted to EPA on
July 28, 2009.

EPA Evaluation:

New Jersey is implementing the PSD program through the delegated federal
PSD regulations at 40 CFR 52.21.  A state's infrastructure SIP submittal
cannot be considered for approvability with respect to prong 3 until EPA
has issued final approval of that state's PSD SIP or, alternatively, has
issued final approval of a SIP that EPA has otherwise found adequate to
prohibit interference with other states' measures to prevent significant
deterioration of air quality.  EPA will be able to propose to determine
that the state has met its obligations for PSD pursuant to Section
110(a)(2)(D)(i)(II) after New Jersey submits, and EPA approves, a PSD
program as a SIP revision.  In the meantime, EPA is disapproving the
Infrastructure SIP submit for lack of a State adopted PSD rule to
satisfy Section 110(a)(2)(D)(i)(II) prong 3 for the 8-hr ozone and PM2.5
NAAQSs, it will not start a FIP because a PSD FIP is currently in place
and it will not trigger any sanctions.  

Prong 4

New Jersey has met its obligations pursuant to Section
110(a)(2)(D)(i)(II) for visibility (prong 4) for all three NAAQSs
through its Regional Haze SIP submittals, which were approved by EPA on
January 3, 2012, Federal Register (77 FR 19).

The regional haze rule specifically requires that a state participating
in a regional planning process include all measures needed to achieve
its apportionment of emission reduction obligations agreed upon through
that process. Thus, New Jersey’s approved regional haze SIP will
ensure that emissions from sources within the State are not interfering
with measures to protect visibility in other states.  Therefore, 

EPA proposes to find for 8-hr ozone and PM2.5 NAAQSs that NJDEP
satisfies the Section 110(a)(2)(D)(i)II requirement for visibility.

Section 110(a)(2)(D)(ii) Interstate and International transport
provisions: 

Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring
compliance with the applicable requirements of sections 126 and 115
(relating to interstate and international pollution abatement). 
Specifically, section 126(a) requires new or modified major sources to
notify neighboring states of potential impacts from the source.

State Submittal:

Section 126 of the Clean Air Act

New Jersey sends communications to all the surrounding states regarding
all Title V operating permit actions: Maryland, Pennsylvania, Delaware,
New York, and Connecticut, in accordance with NJAC 7:27-22.11(k).

Section 115 of the Clean Air Act

In the case that the USEPA makes a finding that a state’s plan is
inadequate under Section 110(a)(2)(H)(ii) of the Clean Air Act in
response to an international agency’s reports, surveys, or studies,
Section 115(b) of the Clean Air Act requires the applicable state plan
be revised to reduce the pollution endangering public health or welfare
in a foreign country.  New Jersey has the authority to revise its SIP
under NJSA 26:2C-8.11 and conduct any further research as needed under
NJSA 26:2C-9.

EPA Evaluation:

New Jersey has no pending obligations under Section 115 or 126(b) of the
Act.  However, New Jersey has chosen to rely on the federal PSD program
requirements of 40 CFR 52.21(q), which provide for notification of
affected state and local air agencies, to satisfy this requirement and,
therefore, New Jersey’s program is considered technically deficient
and not approvable.  Although this program is considered deficient
because the State has not "submitted" anything to EPA, EPA is not
required to take further action with respect to notification under this
element, for the reason that the federal rules represent a FIP that
fully addresses the notification issue. In addition, mandatory sanctions
do not apply because the deficiencies are neither with respect to a
submittal that is required under CAA title V, part D, nor in response to
a SIP call under section 110(k)(5) of the CAA. Thus, New Jersey remains
obligated to adopt and submit a PSD program for EPA approval that
applies to all regulated NSR pollutants. Until the state provides such a
program, its infrastructure SIP is not approvable with respect to
section 110(a)(2)(D)(ii).  Therefore, we are proposing to disapprove New
Jersey’s submissions for infrastructure element 110(a)(2)(D)(ii).

E.	Adequate resources - Section 110(a)(2)(E):  

Section 110(a)(2)(E) requires: (i) states to provide for adequate
personnel, funding, and legal authority under state law to carry out its
SIP. (ii) that the state comply with the requirements section 128
respecting state boards and conflict of interest, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provision.”

State Submittal:

New Jersey’s statute under NJSA 13:1D-9 provides guidance on
dedicating personnel and funds for the New Jersey Department of
Environmental Protection to carry out the responsibilities under the
State Implementation Plan.  The New Jersey Department of Environmental
Protection relies on the federal grant allocated under Section 103 and
105 of the Clean Air Act for carrying out the State Implementation Plan
responsibilities, as well as an annual State appropriation.  New Jersey
does not rely on any boards to carry out its duties.  New Jersey also
references NJSA 26:2C-8, 26:2C-22, and 52:13D-12 et seq.

EPA Evaluation:

Besides the authority cited above, NJDEP has authority under NJSA
26:2C-9.b.(6) to receive funds from federal, state and interstate bodies
for the study and control of air pollution.  

New Jersey receives sections 103 and 105 grant funds through their
Performance Partnership Grants along with required state-matching funds
to provide funding necessary to carry out its SIP requirements.  New
Jersey and EPA develop an annual performance partnership agreement that
identifies the programs and efforts that will be devoted in the
forthcoming year to air pollution control.  As discussed in section V.L.
below, New Jersey has the authority to collect permit fees from
stationary sources.  EPA proposes to find that the State has adequate
authority to fulfill the requirements of section 110(a)(2)(E)(i) for
8-hr ozone and PM2.5 NAAQSs.

Section 110(a)(2(e)(ii), requires compliance with section 128 which
addresses requirements to insure that boards or persons approving
permits or enforcement orders do not have any conflicts of interest. 
New Jersey does not use state boards. The State addresses the conflict
of interest requirement with NJSA 52:13D-12 et seq. which restricts any
State officer or employee from accepting anything of value to influence
him or her in his performance of duty.  EPA proposes to find that the
State has adequate authority to fulfill the requirements of section
110(a)(2)(E)(ii) for 8-hr ozone and PM2.5 NAAQSs, but must submit NJSA
52:13D-12 et seq. as part of the SIP.

  

Section 110(a)(2(e)(iii) requires states to have the necessary
assurances in place with local or regional governments that may be
delegated tasks associated with implementation of the SIP.  New Jersey
may delegate authority to any of the 21 counties to enforce regulations
associated with minor area sources under the County Environmental Health
Act (NJSA 26:3A23-21 et seq.).  If a county wishes to participate, a
memorandum of agreement is prepared which identifies the efforts the
county will perform.

EPA in the past identified a deficiency in meeting this requirement. 
See 40 CFR 52.1579 Intergovernmental cooperation. 

While New Jersey has the authority to delegate responsibilities to
county or local governments to implement certain SIP responsibilities,
the information provided in both infrastructure SIP submittals does not
identify organizations, by official title, which will participate in
developing, implementing, and enforcing the plan and the
responsibilities of such organizations.  The plan should include any
related agreements or memoranda of understanding (MOU) among the
organizations.  EPA proposes to conditional approve the infrastructure
SIP in fulfilling the requirements of section 110(a)(2)(E)(iii).  The
State must identify the county or local governments that participate in
the SIP planning efforts, example MPOs, and identify the county or local
governments that have been delegated responsibilities to implement or
enforce portions of the SIP and provide examples of the agreements or
MOUs.



Since the deficiency only involves providing information that exists but
was not included, and based on EPA experience with working with NJDEP
that there have been no issues associated with implementing or enforcing
the SIP, should New Jersey provide this information before we take final
rulemaking, EPA is also proposing to fully approve section
110(a)(2)(E)(iii) and remove 40 CFR 52.1579.

F.	Stationary source emissions monitoring and reporting: Section
110(a)(2)(F) 

Section 110(a)(2)(F) requires states to establish a system to: i)
monitor emissions from stationary sources, ii) have sources prepare
periodic emission reports, and iii) report emissions.

State Submittal:

The NJDEP has the authority pursuant to NJSA 26:2C-9.2 to require
emissions monitoring of stationary sources before an operating permit is
issued or renewed. NJDEP adopted regulations to implement the Federal
requirements for stationary source emissions monitoring and reporting in
NJAC 7:27-8 and 22.

EPA Evaluation:

The NJDEP has the authority pursuant to NJSA 26:2C-9.2 to require
emissions testing from stationary sources.  

         

The NJDEP has the authority pursuant to NJSA 26:2C-9 and specifically
NJSA 26:2C-9.b.(3) to require emission statement reports from stationary
sources.  Further, NJSA 26:2C-9.b.(4) specifically requires emission
information to be made available to the public. 

EPA previously made a finding concerning New Jersey’s confidentiality
provisions, that in some circumstances, the New Jersey Air Pollution
Control Act (NJAPCA) could prohibit the disclosure of emission data to
the public and, therefore, EPA disapproved NJSA 26:2C-9.  See 40 CFR
52.1575.  Since that disapproval, New Jersey revised NJAC 26:2C-9 to
limit what information could be considered confidential and specifically
added the phrase “other than actual or allowable air contaminant
emissions” to exclude actual or allowable air contaminant emissions
from confidential treatment(adopted by the New Jersey Legislature on
August 2, 1995).  NJAC 13:1D-9 12d. also limits confidentiality
protections to those afforded by federal law.  In the same legislation,
NJDEP was given the authority to require individuals responsible for
operations that emit air pollution to file emission statements.  The
NJDEP has adopted and EPA has approved NJAC 7:27, Subchapter 21 -
“Emission Statements” as part of the applicable SIP. See 69 FR
46104, 8/2/2004 and EPA’s latest approval occurred on 8/3/2010, 75 FR
45483.

Based on the revisions to the NJSA 26:2C-9 and the adoption of the
Subchapter 21 – “Emission Statements,” EPA is proposing to find
that New Jersey has met the requirements of section 110 (a)(2)(F) and is
proposing to revoke 40 CFR 52.1575 and the federal requirements
contained in 40 CFR 52.1574.

Further, EPA maintains a central repository for air emissions data, the
National Emissions Inventory (NEI).  EPA published the Air Emissions
Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539).  The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data.  All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA’s online Emissions Inventory
System (EIS).  States report emissions data for the six criteria
pollutants and the precursors that form them – nitrogen oxides, sulfur
dioxide, ammonia, lead, carbon monoxide, particulate matter, and
volatile organic compounds.  Many states also voluntarily report
emissions of hazardous air pollutants, including New Jersey.  New Jersey
made its latest update to the NEI in June 2010.  EPA compiles the
emissions data, supplementing it where necessary, and releases it to the
general public through the website   HYPERLINK
"http://www.epa.gov/ttn/chief/eiinformation.html" 
http://www.epa.gov/ttn/chief/eiinformation.html .  EPA proposes to find
that New Jersey has satisfied section 110(a)(2)(F) for ozone and PM2.5.

G.	Emergency powers and contingency plans - Section 110 (a)(2)(G)

Section 110(a)(2)(G) requires states to provide for authority to address
activities causing imminent and substantial endangerment to public
health, including contingency plans to implement the emergency episode
provisions in their SIPs.  

State Submittal:

This authority is provided in New Jersey’s Air Pollution Emergency
Control Act (NJSA 26:2C-26 et seq.), which is implemented through NJAC
7:27-12.

EPA Evaluation:

The NJDEP has the authority pursuant to NJSA 26:2C-26 et seq. and
implements the provisions through NJAC 7:27-12 Prevention and Control of
Air Pollution Emergencies.

NJSA 26:2C-26 provides the authority to determine an air pollution
emergency; provides the power to prohibit, restrict or condition the use
of motor vehicles, incinerators, fuel burning equipment, and other
activities that may contribute to the air pollution emergency; and
provides for enforcement and  penalties.  New Jersey has emergency
criteria levels for determining air pollution alert, air pollution
warning, and air pollution emergency.  The 2007 guidance stated that the
SHL for the 1997 8-hour ozone NAAQS would remain unchanged as 0.60 ppm
over a 2-hour average, as indicated in 40 CFR 51.151, and that the
existing ozone related provisions of 40 CFR part 51, part H remained
appropriate for purposes of implementing the 1997 8-hour ozone standard.

EPA’s September 25, 2009 Infrastructure SIP Guidance for 2006 PM2.5
NAAQS provides clarification that states that have air quality control
regions identified as either priority I, Priority IA, or Priority II at
40 CFR 51.150 must develop emergency episode contingency plans.  The
guidance recommends that states set priority levels and emergency action
levels for PM2.5 necessary to develop emergency episode plans.  States
would develop emergency episode plans for any area that has at least one
monitored 24-hour PM2.5 value exceeding 140.4 µg/m3 since 2006.  A
state that has never exceeded this level since 2006 is considered to be
priority III and in accordance with the guidance, may certify that it
has appropriate general powers, and is not required to address specific
emergency episode plans at this time, given the existing monitored
levels. 

EPA also clarified that this guidance, under these conditions, the
contingency plan portion of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, for which we issued a finding for failure to submit in October
2008, may also be resolved (73 FR 62902).

The 2006-2008 ambient air quality monitoring data for New Jersey do not
exceed 140.4 µg/m3.  The 24-hour PM2.5 levels have typically ranged
from 40-59 µg/m3 with a maximum value 91.0 µg/m3.  The most extreme
recent event occurred during the 2002 Canadian forest fires and resulted
in maximum 24-hour PM2.5 concentration 106.7 µg/m3; well below the 140
cut point.  Furthermore, New Jersey has appropriate general emergency
powers to address PM2.5 related episodes to protect the environment and
public health. Given the State's low monitored PM2.5 levels, EPA is
proposing the State is not required to submit an emergency episode plan
and contingency measures for the 1997 PM2.5 and 2006 PM2.5 standards for
as long as the monitored readings stay 140µg/m3. 

Subchapter 12 is consistent with the requirements of 40 CFR 51 Subpart H
and Appendix L for contingency plans/standby plans.  It also provides
the Commissioner with the authority to set emergency criteria levels.  

While the New Jersey SIP contains Subchapter 12, it is not the current
version of the State rule.  In addition, Subchapter 12 requires the
NJDEP to publish in the New Jersey Register the emergency criteria that
will be used in making alerts, warnings or emergencies. NJDEP has not
provided this criteria.   Therefore, EPA is proposing to condition its
approval based on NJDEP submitting the current version of Subchapter 12
for approval into the SIP and the emergency criteria levels that will be
used.

H.	Future SIP revisions - Section 110(a)(2)(H)  

Section 110(a)(2)(H) requires states to have the authority to revise
their SIPs in response to changes in the NAAQS, availability of improved
methods for attaining NAAQS, or in response to an EPA finding that the
SIP is substantially inadequate.  

State Submittal:

New Jersey’s statute under NJSA 13:1D-9 gives the NJDEP the authority
to revise the SIP in response to changes in the NAAQSs, availability of
improved methods for attaining the NAAQSs, or in response to an EPA
finding that the SIP is substantially inadequate.

EPA Evaluation:

The NJDEP has the authority pursuant to NJSA 13:1D-9 et seq. to
formulate comprehensive policies and programs to protect the environment
and prevent pollution in New Jersey.  In addition, 7:27-13.2(c)
specifically requires the State to adopt implementation plan or plan
revisions as necessary to meet air quality standards.  EPA proposes to
find that the State has adequate authority to develop and implement
plans and programs that fulfill the requirements of section 110(a)(2)(H)
for 8-hr ozone and PM2.5 NAAQSs.

State Implementation Plan revisions for new nonattainment areas –
Section 110(a)(2)(I)

Section 110(a)(2)(I) requires that each nonattainment area meet the
applicable requirements of Part D.

State Submittal:

The NJDEP has in the past submitted SIP revisions for any change in the
NAAQS, including the recommendations for nonattainment area designation.
 

EPA Evaluation:

EPA has not addressed Section 110(a)(2)(I) in its recent infrastructure
SIP guidance because Part D SIPs are due on a different schedule than
the infrastructure SIP submittal schedule. (See, e.g., the
infrastructure SIP guidance for the revised lead standard, 73 FR 66964,
67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for
the revised NO2 standards, 75 FR 6474, 6523, n. 27, Feb. 9, 2010.) 
Therefore, this proposal does not address Section 110(a)(2)(I).  

New Jersey has submitted for its two ozone nonattainment areas RACT
Plans, RFP Plans and Attainment Demonstrations for the 1997 8-hour ozone
standard.  New Jersey has also submitted a PM2.5 SIP revision which EPA
is currently reviewing and will be taking rulemaking action on.  EPA has
already taken action on 8-hr ozone requirements for Part D nonattainment
plans through separate rulemakings.

J. Consultation with government officials, public notification, PSD, and
Visibility - Section 110(a)(2)(J):

J.1. Consultation with government officials:

Section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and Federal Land Managers carrying
out NAAQS implementation requirements pursuant to section 121 relating
to consultation. 

State Submittal:

The NJDEP provides the opportunity to everyone in New Jersey to
participate in the public comment period and public hearing for any
rulemaking and SIP revision proposal, as described below in
§110(a)(2)(M).  Another avenue of consultation with the public and the
regulated community is through workshops.  In preparation for SIP
revisions for 8-hour ozone and fine particulate matter, the NJDEP
consulted with representatives of civic, environmental, and industrial
groups, as well as other interested parties through the ongoing Reducing
Air Pollution Together Initiative that began with a workshop on June 29,
2005 and the formation of the six air quality workgroups.  The public
has had an opportunity to provide feedback on the workshop and the white
papers developed through this initiative which included various control
options.  The New Jersey Department of Environmental Protection has made
these available on the website
http://www.state.nj.us/dep/baqp/rapt/rapt.html

In addition, the NJDEP has already met with the federal land manager,
regional organizations, and affected states for the purpose of the
Regional Haze State Implementation Plan.  Also, the NJDEP consults with
the Metropolitan Planning Organizations regularly to discuss
transportation-related air quality issues as required by the
Transportation Conformity Rule.  

EPA evaluation:

N.J.A.S. 26:2C-8 provides the NJDEP with the power to formulate and
promulgate codes, rules and regulations preventing, controlling and
prohibiting air pollution provided that the public has an opportunity to
comment during a public hearing.  Further, New Jersey has created a
Clean Air Council (NJSA 26:2C-3.2 thru 26:2C-3.3) which includes members
from various associations including the New Jersey State League of
Municipalities and New Jersey Freeholder’s Association.  The role of
the Clean Air Council is to consider matters relating to air pollution
and air pollution control programs, rules, regulations and studies and
to advise the Commissioner.  EPA proposes that New Jersey has adequate
authority and procedures for consulting with government officials.

J2. Public notification:  

Section 110(a)(2)(J) further requires states to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances.

State Submittal:

The NJDEP has a standard operating procedure by which notification of
NAAQSs exceedance is sent to the press.  Additionally, the notification
of NAAQSs exceedance is posted on the NJDEP’s website
(www.nj.gov/dep).  When an exceedance or unhealthy air is forecasted,
the information is sent out to participants of the NJDEP’s listserv,
an e-mail service that is used to broadcast information.

EPA Evaluation:

The NJDEP has procedures in place to notify the public when air quality
standards deteriorate and exceed the NAAQS.  It maintains a web site
which provides information on current air quality status, air quality
forecasts, monitoring information, reports and pertinent information
related to air quality readings.  NJDEP participates with surrounding
states in submitting and compiling air quality data and making this
information available to press, news outlets, state websites and through
the use of a listserv.  EPA proposes that New Jersey has adequate
procedures for notifying the public of air quality concerns and
disseminating information on ways to avoid health problems and reduce
exposure when necessary.

J3. PSD and visibility protection:

Section 110(a)(2)(J) also requires states to meet applicable
requirements of Part C related to prevention of significant
deterioration (PSD) and visibility protection.  

State Submittal:

The NJDEP was delegated the prevention of significant deterioration
regulation at 40 CFR 52.21 by the EPA.  Alternatively, such authority
for establishing the requirements for the prevention of significant
deterioration can be found in NJSA 26:2C-8, 9, and 19.  The prevention
of significant deterioration does not currently apply to New Jersey for
ozone because the entire State is designated as nonattainment for the
8-Hour Ozone National Ambient Air Quality Standard.  The prevention of
significant deterioration regulations only apply to attainment areas for
a given pollutant.  For visibility improvement, the NJDEP will include
all the necessary requirements in the Regional Haze State Implementation
Plan.

EPA Evaluation:

With respect to the applicable requirements of Part C, relating to
prevention of significant deterioration (PSD) of air quality and
visibility protection, we previously noted in the discussion of section
110(a)(2)(C) (relating to enforcement of control measures) how the New
Jersey applicable implementation plan meets the PSD requirements through
delegation of 40 CFR 52.21.

New Jersey is implementing the PSD program through the delegated federal
PSD regulations at 40 CFR 52.21.  A state's infrastructure SIP submittal
cannot be considered for approvability with respect to section
110(a)(2)(J) until EPA has issued final approval of that state's PSD
SIP. EPA is disapproving the infrastructure SIP because of failure to
contain a PSD rule to satisfy Section 110(a)(2)(J) for the 8-hr ozone
and PM2.5 NAAQSs, it will not start a FIP because a PSD FIP is currently
in place and it will not trigger any sanctions.  

With respect to the visibility component of section 110(a)(2)(J), we
reiterate the statutory requirement providing, in relevant part, that
each plan must meet the “applicable requirements” of part C (of
Title I of the Act) relating to visibility protection.  We note that
the other part C requirements specified in section 110(a)(2)(J)
(applicable requirements relating to prevention of significant
deterioration of air quality) specifically relate to the 1997 and 2006
NAAQS, as well as to other pollutants regulated under the CAA, and a
state must be able to implement those requirements with respect to a new
or revised NAAQS when promulgated.  In contrast to the PSD program, the
visibility protection requirements are not directly related to the
promulgation of, or revision to, these NAAQS.  While the SIP must
independently meet the visibility protection requirements of part C by
virtue of the specific SIP requirements in sections 169A and 169B of
the Act, EPA believes that the visibility protection requirements are
not “applicable requirements” within the meaning of
section 110(a)(2)(J) and that the SIP is not required to be revised
with respect to visibility protection merely due to promulgation of, or
revision to, these NAAQS.  Regardless, NJDEP submitted and EPA has
approved its Regional Haze SIP (January 3, 2012, 77 FR 19) as part of
the SIP. 

Air quality modeling and reporting - Section 110(a)(2)(K)

Section 110(a)(2)(K) requires that SIPs provide for performing air
quality modeling for predicting effects on air quality of emissions from
any NAAQS pollutant and submission of such data to EPA upon request.

State Submittal:

The NJDEP’s air quality modeling work complied with United States
Environmental Protection Agency’s final guidance (April 2007) on the
use of models in attainment demonstrations for the 8-hour ozone standard
and the NJDEP will use the United States Environmental Protection Agency
final guidance for modeling fine particulate matter.  This is a rapidly
evolving field in which the NJDEP endeavors to use the latest
methodology and techniques, and documents information that its staff
uses when conducting modeling or when evaluating the performance of air
quality models used for this purpose.  The NJDEP consults and works with
regional organizations that conduct the regional air quality modeling. 
The regional modeling for New Jersey was included in the October 2007
8-Hour Ozone Attainment Demonstration/State Implementation Plan
revision.  A similar regional modeling effort was included in the
Regional Haze State Implementation Plan and the Fine Particulate Matter
Attainment Demonstration/State Implementation Plan revisions.

NJAC 7:27-8.5 and 22.8 contain air quality modeling requirements for
stationary sources for the NJDEP’s Air Permitting Program.  

EPA Evaluation:

NJAC 7:27-8 Permits and Certificates for Minor Facilities (and Major
Facilities without an Operating Permit), specifically 8.5 and 7:27-22
Operating Permits, specifically 22.8 provide NJDEP with authority to
require sources to perform air quality simulation modeling to determine
whether the potential to emit will cause:

A violation of any New Jersey Ambient Air Quality Standard (NJAAQS) or
National Ambient Air Quality Standard (NAAQS); 

	An exceedance of a Prevention of Significant Deterioration (PSD)
increment as defined in 40 CFR 52; 

An increase in the ambient air concentration that equals or exceeds the
significant air quality effect level, as set forth in Table 1 of NJAC
7:27-18.4(a), in a nonattainment area for any air contaminant; or 

Air pollution as defined in P.L.1954 c.212 (NJSA 26:2C-1 et seq.).  EPA
finds that NJAC 7:27-8.5 and 22.8 provides adequate authority to require
modeling for purposes of determining NAAQS compliance by stationary
sources.

New Jersey has broad authority pursuant to NJSA 13:1D-9   

 

 Conduct and supervise research programs for the purpose of determining
the causes, effects and hazards to the environment and its ecology;”
...

NJDEP has submitted the 1997 8-hour ozone attainment demonstration
supported by photochemical modeling.  This regional modeling effort was
performed by the Ozone Transport Commission (OTC) on behalf of the
member states including New Jersey.  NJDEP participated, as a member of
the OTC, in the various workgroups and the oversight committee
responsible for the regional modeling effort.  NJDEP also submitted
modeling for the PM2.5 annual standard which EPA is in the process of
preparing a proposed rulemaking.  New Jersey is attaining the PM2.5
24-hour standard and EPA has proposed a Clean Data Determination on
August 30, 2012 (77 FR 52626).  When this action is finalized, the
requirement for an attainment demonstration for the 24-hour standard
will be suspended for as long as the standard is being attained.  EPA
proposes to find that the State has adequate authority to develop and
implement plans and programs that fulfill the requirements of section
110(a)(2)(K) for 8-hr ozone and PM2.5 NAAQSs.  

Major stationary source permitting fees – Section 110(a)(2)(L)

Section 110(a)(2)(L) requires SIPs to require each major stationary
source to pay permitting fees to cover the cost of reviewing, approving,
implementing and enforcing a permit.

State Submittal:

Under NJAC 7:27-22.31 (Operating Permits Fees), major stationary sources
are required to pay fees to the State to sufficiently cover the cost of
reviewing, approving, implementing and enforcing a permit.

EPA Evaluation:

EPA originally granted interim approval of New Jersey’s Operating
Permit Program (Subchapter 22) (effective June 17, 1996), 61 FR 24715
(May 16, 1996).  Effective November 30, 2001, EPA granted full approval
to New Jersey's title V Operating Permit Program (66 FR 63168, December
5, 2001).  EPA last approved revisions to New Jersey’s Subchapter 22
on July 26, 2007, 72 FR 41025.  The Operating Permits Rule fee schedules
conform to the Omnibus Legislation adopted by the New Jersey State
legislature in 2002, and ensures that requisite funding needs of the New
Jersey Operating Permit Program are met.

New Jersey’s Title V Subchapter 22, Operating Permits regulation
contains specific detailed provisions for assessing permit fees
(contained in NJAC 7:27-22.31).  The authority to require these fees in
Subchapter 22 is provided by NJSA 26:2C-9.b.(7),  NJSA 26:2C-9.5 and
NJSA 26:2C-9.6.  EPA finds that New Jersey has adequate authority to
require fees for major sources to cover the cost of reviewing,
approving, implementing and enforcing a permit program for ozone and
PM2.5 NAAQSs.

Consultation with local entities -  Section 110 (a)(2)(M)  

Section 110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.

State Submittal:

New Jersey provides the opportunity for consultation and participation
to local political subdivisions during the public comment period of a
proposed State Implementation Plan.  New Jersey’s Air Pollution
Control Act (NJSA 26:2C-8) and Administrative Procedure Act (NJSA
52:14B-1 et seq.) requires a public process for any rulemaking.  The New
Jersey Department of Environmental Protection offers the opportunity to
everyone in the State to participate in the public process for any State
Implementation Plan or rulemaking.  This includes a public comment
period and a public hearing.  Notices for the commenting period and the
public hearing are circulated in newspapers, public libraries, and the
New Jersey Department of Environmental Protection’s Regional
Enforcement Offices.  The notices are also mailed through the United
States Postal Service and through Listserv (electronic mailing system)
to organizations and interested parties that have signed up for the
mailing, which includes the League of Municipalities.  All 566
municipalities in New Jersey are members of the League of
Municipalities, a voluntary association created to help communities do a
better job of self-government through pooling information resources and
brain power.  The New Jersey Department of Environmental Protection
assures that all comments and testimonies are seriously considered in
rulemaking and when finalizing the State Implementation Plan.

The NJDEP is in constant communication with other state agencies and
planning boards, such as the New Jersey Department of Transportation,
Department of Health and Senior Services, Department of Agriculture, the
Delaware Valley Regional Planning Commission, the Northern New Jersey
Transportation Planning Authority, and Southern New Jersey
Transportation Planning Authority, on issues in the State Implementation
Plan.  The NJDEP also briefs the State’s Clean Air Council on air
issues, including the State Implementation Plan.  

EPA Evaluation:

NJSA 26:2C-8 and NJSA 52:14B-1 et seq. authorize and require New Jersey
to formulate and promulgate codes, rules, and regulations preventing,
controlling and prohibiting air pollution provided that the interested
parties are provided an opportunity to review and comment on the
proposed codes, rules, and regulations.  Also, as discussed in section
V. J (above), the Clean Air Council which includes members from the New
Jersey State League of Municipalities are to consider, make
recommendations and advise the Commissioner on air pollution control
programs. EPA proposes to find that New Jersey has satisfied section
110(a)(2)(M) for ozone and PM2.5 NAAQSs.

  

  See Comments of Midwest Environmental Defense Center, dated May 31,
2011. Docket # EPA-R05-OAR-2007-1179 (adverse comments on proposals for
three states in Region 5).  EPA notes that these public comments on
another proposal are not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking.  EPA will respond to these
comments in the appropriate rulemaking action to which they apply.  

  For example, section 110(a)(2)(E) provides that states must provide
assurances that they have adequate legal authority under state and local
law to carry out the SIP; section 110(a)(2)(C) provides that states must
have a substantive program to address certain sources as required by
part C of the CAA; section 110(a)(2)(G) provides that states must have
both legal authority to address emergencies and substantive contingency
plans in the  event of such an emergency.

   For example, section 110(a)(2)(D)(i) requires EPA to be sure that
each state’s SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states.  This
provision contains numerous terms that require substantial rulemaking by
EPA in order to determine such basic points as what constitutes
significant contribution.  See “Rule To Reduce Interstate Transport of
Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70
FR 25162 (May 12, 2005) ( defining, among other things, the phrase
“contribute significantly to nonattainment”).

  

   See Id., 70 FR 25162, at 63 – 65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D) versus
section 110(a)(2)(I)).

   EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 1997
PM2.5 NAAQS.  See “Guidance for State Implementation Plan (SIP)
Submissions to Meet Current Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air
Quality Standards,” from William T. Harnett, Director Air Quality
Policy Division OAQPS, to Regional Air Division Director, Regions I-X,
dated August 15, 2006.

  For example, implementation of the 1997 PM2.5 NAAQS required the
deployment of a system of new monitors to measure ambient levels of that
new indicator species for the new NAAQS.

   See “Guidance on SIP Elements Required Under Section 110(a)(1) and
(2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality
Standards,” from William T. Harnett, Director Air Quality Policy
Division, to Air Division Directors, Regions I – X, dated October 2,
2007 (the “2007 Guidance”).  

  Id., at page 2.

  Id., at attachment A, page 1.

  Id., at page 4. In retrospect, the concerns raised by commenters with
respect to EPA’s approach to some substantive issues indicates that
the statute is not so “self explanatory,” and indeed is sufficiently
ambiguous that EPA needs to interpret it in order to explain why these
substantive issues do not need to be addressed in the context of
infrastructure SIPs and may be addressed at other times and by other
means. 

  See “Guidance on SIP Elements Required Under Sections 110(a)(1) and
(2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS),” from William T, Harnett, Director Air
Quality Policy Division, to Regional Air Division Directors, Regions I -
X, dated September 25, 2009 (the “2009 Guidance”).

  EPA has recently issued a SIP call to rectify a specific SIP
deficiency related to the SSM issue.  See, “Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State Implementation
Plan Revision,” 74 FR 21639 (April 18, 2011).

  EPA has recently utilized this authority to correct errors in past
actions on SIP submissions related to PSD programs.  See “Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,” 75 FR 82536 (December 30, 2010).  EPA has
previously used its authority under CAA 110(k)(6) to remove numerous
other SIP provisions that the Agency determined it had approved in
error.  See 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997)
(corrections to American Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP);
and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada
SIPs).

  EPA has recently disapproved a SIP submission from Colorado on the
grounds that it would have included a director’s discretion provision
inconsistent with CAA requirements, including section 110(a)(2)(A).  See
75 FR 42342, 42344 (July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR  4540 (January 26, 2011) (final
disapproval of such provisions).  

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