



                                       
                 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 October 2014 and as supplemented March 2017 
                           For the following NAAQS:
                                       
                                   2006 PM10
                                  2008 Ozone
                                   2008 Lead
                                   2010 SO2
                                   2010 NO2
                                    2011 CO
                                  2012 PM2.5 
                                      And
                        1997 ozone, 1997 and 2006 PM2.5
                                       




	 February 2018









                               Table of Contents

I.  What is the Background for this Action?

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

III.	What is EPA's approach to the review of infrastructure SIP submissions?     

IV. What did New Jersey Submit?

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

VI. How does the New Jersey Infrastructure Submittal Meet the Requirements under Section 110(a)(1) and (2) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS; and for certain elements (E(ii), E(III), G) of the 1997 8-hour ozone NAAQS, and 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)

VII. Summary of Proposed Findings
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 (ug/m[3]) based on a 3-year average of annual mean PM2.5 concentrations and a 24-hour standard of 65 ug/m[3] based on a 3-year average of the 98[th] 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 ug/m[3] to 35 ug/m[3].  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.  On December 14, 2012 the EPA revised the annual PM2.5 standard by lowering the level to 12.0 ug/m3 and retaining the 24-hour PM2.5 standard at a level of 35 ug/m3 (78 FR 3086, January 15, 2013).  With regard to the primary standard for particles less than or equal to 10 micrometers in diameter (PM10), the EPA retained the current 24-hour PM10 standard of 150 ug/m3 not to be exceeded more than once per year on average over a 3-year period. 

On September 21, 2006 (71 FR 61144), EPA retained the primary and secondary 24-hour PM10 standard of 150 ug/m3 not to be exceeded more than once per year on average over a 3-year period.   

On March 12, 2008 (73 FR 16436, March 27, 2008) the EPA strengthened the NAAQS for ground level ozone.  The EPA revised the 8-hour "primary" ozone standard, designed to protect public health, to a level of 0.075 ppm from a level of 0.08 ppm set for the 1997 NAAQS.  The EPA also strengthened the secondary 8-hour ozone standard to the level of 0.075 ppm making it identical to the revised primary standard.      

On October 15, 2008 (73 FR 66964, November 12, 2008), the EPA promulgated a revised NAAQS for lead. The Agency revised the level of the primary lead standard from 1.5 ug/m3 to 0.15 ug/m[3].  The EPA also revised the secondary NAAQS to 0.15 ug/m3 and made it identical to the revised primary standard.  

On January 22, 2010 (75 FR 6474, February 9, 2010), the EPA strengthened the health-based NAAQS for nitrogen dioxide (NO2) by supplementing the existing standard of 53 parts per billion (ppb) with a 1-hour primary standard of 100 ppb.  The new standard is a 3-year average of the 98[th] percentile daily maximum 1-hour concentration. The secondary NO2 NAAQS was not revised.  

On June 2, 2010 (75 FR 35520, June 22, 2010) the EPA promulgated a revised NAAQS for sulfur dioxide (SO2) at a level of 75 ppb, based on a 3-year average of the annual 99[th] percentile of 1-hour daily maximum concentrations.  

On August 31, 2011 (76 FR 54294) the EPA promulgated retention of the existing primary and secondary standards for carbon monoxide (CO) of 9 ppm as an 8-hour standard and 35 ppm as a 1-hour standard.  Both standards are not to be exceeded more than once per year.  The CO standards were initially promulgated on April 30, 1971 (36 FR 8186). 

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. The EPA issued a guidance document regarding infrastructure SIPs on October 14, 2011, entitled, "Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)."   

The EPA issued a guidance document regarding infrastructure SIPs on September 13, 2013, entitled, "Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)." The September 2013 guidance provides advice to the states on the development of infrastructure SIPs for the 2008 ozone NAAQS, the 2010 NO2 NAAQS, the 2010 SO2 NAAQS, and the 2012 PM2.5 NAAQS, as well as infrastructure SIPs for new or revised NAAQS promulgated in the future. The guidance does not address CAA section 110(a)(2)(D)(i)(I) which concerns interstate pollution transport affecting attainment and maintenance of the NAAQS. In a memorandum dated March 17, 2016, the EPA released guidance entitled "Information on Interstate Transport "Good Neighbor" Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act section 110(a)(2)(D)(i)(I)."     

Each of the guidance documents notes 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. 
                                       
As discussed above, 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).  


III.	What is EPA's approach to the review of infrastructure SIP submissions? 

EPA is acting upon the SIP submission from New Jersey that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone, 2008 lead, 2010 NO2, 2010 SO2, 2011 CO and the 2012 PM2.5 and 2006 PM10 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions "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 these SIP submissions are to provide for the "implementation, maintenance, and enforcement" of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that "[e]ach such plan" submission must address. 

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as "infrastructure SIP" submissions. Although the term "infrastructure SIP" does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as "nonattainment SIP" or "attainment plan SIP" submissions to address the nonattainment planning requirements of part D of title I of the CAA, "regional haze SIP" submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. 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 program provisions, and some of which pertain to requirements for both authority and substantive program provisions. EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. 

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that "each" SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements. Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated. This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. 
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit "a plan" to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action. Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, 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. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the "applicable requirements" of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. 

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions. The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However, they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. 

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. 

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions ("SSM"); (ii) existing provisions related to "director's variance" or "director's discretion" that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) 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"). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. 

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations 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. These provisions, 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 evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. 

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately 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 to otherwise 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 a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies 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 an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 

IV. What did New Jersey Submit?

EPA is acting on New Jersey's SIP submittal which address the Section 110 infrastructure requirements for the following NAAQSs: the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM 2.5 and the 2006 PM 10 NAAQS. 

EPA is also acting on 110(a)(2) elements and sub-elements of New Jersey's infrastructure SIP submittals for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS which EPA previously conditionally approved (78 FR 35764, June 14, 2013) including the following 110(a)(2) elements and sub-elements: E(ii) (conflict of interest provisions), E(iii) (delegations), and for the 1997 8-hour ozone element (G) (emergency powers).     

EPA is not acting on the portions of the SIP submittal addressing interstate transport. In a letter to EPA dated March 30, 2016, NJ withdrew the portion of its October 17, 2014 SIP revision addressing 110(a)(2)(D)(i)(I) for interstate transport requirements (commonly referred to as the "Good Neighbor Provision", or prongs 1 and 2) with respect to the 2008 8-hour ozone NAAQS, indicating it was doing so for the purpose of expediting EPA action finalizing the Cross State Air Pollution Rule (CSAPR) Update.  The CSAPR Update rule addresses ozone transport by 2017 and acts as a Federal Implementation Plan (FIP) to assist impacted downwind states in meeting the 2008 ozone NAAQS.  New Jersey stated that it withdrew the transport portion of its previous infrastructure SIP "in order not to delay the EPA's ability to implement the FIP on those upwind states that are significantly contributing to ozone levels in New Jersey and the other states within our shared ozone nonattainment areas."   

On June 15, 2016 (81 FR 38963) the EPA issued a finding that New Jersey failed to submit an infrastructure SIP revision for the interstate transport requirements of CAA section  110(a)(2)(D)(i)(I), also called the "good neighbor" provision, for the 2008 8-hour ozone NAAQS.  This finding starts a 2-year clock for promulgation of a FIP by the EPA.  On November 16, 2015, the EPA proposed a rule to address the "good neighbor" provisions of the 2008 ozone NAAQS. The rule proposed to promulgate FIPs in 23 states, including New Jersey, to reduce interstate transport as to the 2008 ozone NAAQS.  The EPA finalized the rule and respective FIPs on September 7, 2016. 81 FR 74504(Oct. 26, 2016).

EPA previously acted on the transport infrastructure elements 110(a)(2)(D)(i)(II) (prongs 3 and 4) on September 19,2016 (81 FR 64070) for each of the NAAQS submitted in New Jersey's SIP revision dated October 17, 2014. 

EPA will act on 110(a)(2)(D)(i)(I) (prongs 1 and 2) for the 2008 lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO NAAQS, the 2012 PM2.5 NAAQS and the 2006 PM 10 NAAQS in another action. 

In accordance with 40 CFR, appendix V, the EPA found that New Jersey's October 17, 2014 SIP submittal is administratively complete except for inclusion of a state adopted PSD program. New Jersey has not adequately addressed the requirements of part C of title I of the CAA as it does not have a SIP approved PSD permit program. On October 28, 2014, the EPA sent a letter to the New Jersey Department of Environmental Protection notifying New Jersey of this determination. 

As a result of this incompleteness finding, the EPA is not taking action on the PSD related portions of section 110(a)(2)(C), (D)(ii), and (J) for the seven NAAQS included in New Jersey's October 2014 infrastructure SIP submittal until New Jersey submits a SIP to address the PSD permit program requirements of part C of title I of the CAA.  The EPA recognizes, however, that New Jersey has elected to comply with the Federal PSD requirements by accepting delegation of the Federal rules and has been successfully implementing this program for many years. New Jersey is already subject to a Federal Implementation Plan (FIP) which incorporates by reference the federal PSD provisions (for further details concerning New Jersey's PSD program, see section VI.C. of this TSD) as codified in 40 CFR 51.21, with the exception of paragraph (a)(1), into the implementation plan for the State. 40 CFR 52.1603. New Jersey would not have to take further action for the FIP-based permitting process to continue operating. 

The EPA does not anticipate any adverse consequences to New Jersey as a result of this incompleteness finding for the PSD related portions of New Jersey's 2014 infrastructure SIP  revision. First, mandatory sanctions would not apply to New Jersey under CAA section 179 because the failure to submit a PSD SIP is neither required under title I part D of the CAA, nor in response to a SIP call under section 110(k)(5) of the CAA. Second, the EPA is not subject to any further FIP duty from our finding of incompleteness because of the PSD FIP that has already been approved and that addresses the SIP deficiency.         

October 17, 2014 SIP submission and as supplemented on March 15, 2017       

New Jersey's Section 110 infrastructure submittal was submitted by the New Jersey Department of Environmental Protection ("NJDEP" or "New Jersey") on October 17, 2014 and addressed the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM 10 NAAQSs. NJDEP's March 2017 supplement addresses 110(a)(2)(E)(ii) and (iii) for each of the NAAQS addressed in NJDEP's October 17, 2014 SIP submittal as well as for the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS previously conditionally approved by EPA. (78 FR 35764 (June 14, 2013)).   

New Jersey's October 2014 section 110 submittal, as supplemented in March 2017, demonstrates that the State has a plan in place that meets the requirements of Section 110 for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM 10 NAAQS, as well as elements of the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS, previously conditionally approved by EPA.  This plan references the current New Jersey Air Quality SIP, the New Jersey Statutes Annotated (NJSA) and the New Jersey Administrative Code (NJAC).  New Jersey offered to hold a public hearing on their infrastructure SIP revision but no request to hold a hearing was received from the public and therefore none was held but written comments were accepted until July 23, 2014.  All of the NJSA and NJAC 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 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM 10 NAAQS, except where specifically noted, and elements of the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS that were previously conditionally approved.  It should be noted that the NJDEP has made numerous SIP revisions in the past to meet requirements for the previous 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 52.1570 and are posted on the Internet at: https//www.epa.gov/sips-nj/epa-approved -statutes-and-regulations-new-jersey-sip. 

Detailed information was included in the Attachments:
Appendix A  -  Link to New Jersey Air Pollution Control Act (APCA);  
Appendix B  -  List of New Jersey Rules adopted pursuant to the APCA; 
Appendix C  -  Copy of N.J.A.C. 7:27-12, Prevention and Control of Air Pollution Emergencies;
Appendix D  -  Copy of a sample Memorandum of Understanding developed between the State of NJ and a county or local government entity under the County Environmental Health Act (CEHA); 
Appendix E  -  New Jersey's County Environmental Health Act (CEHA), N.J.S.A.26:3A2-21 et seq. 
Appendix F - Additional Considerations concerning the transport of Lead in NJ;
Appendix G  -  USEPA Guidance Materials and Federal Register Notices referenced in this SIP;
Appendix H - List of Control measures adopted by NJ to address the intrastate and interstate transport of pollutants; 
Appendix I - Emergency Air Quality Control Criteria;
Appendix J  -  Copy of N.J.A.C. 7:27-8, Permits and Certificates for Minor Facilities (and Major Facilities Without a Permit); 
Appendix K  -  Response to Comments and Documentation of the Public Outreach and Notification Process for this SIP;
Appendix L  -  Guidance Documents Used for this SIP Revision; 

In NJDEP's March 2017 SIP supplement submitted to the EPA, the State included copies of the N.J.S.A. provisions N.J.S.A. 52:13D-14, N.J.S.A. 52:13D-16(a), N.J.S.A. 52:13D-16(b), and N.J.S.A. 52:13-21(n) that provide assurances that conflicts of interest (related to section 110(a)(2)(E)) are adequately disclosed. NJDEP requested that the N.J.S.A. provisions identified herein be incorporated into NJDEP's SIP. In the March 2017 SIP supplement, NJDEP also corrected a typo for the website included for the Code of Ethics guideline on page 17 of the State's October 2014 SIP submittal as it relates to section 110(a)(2)(E)(ii). Page 17 includes a link to information related to financial disclosure. The corrected page 17 was included in NJDEP's March 2017 SIP supplement with the intention to replace page 17 included in the October 2014 SIP submittal.      
 
V. 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 September 13, 2013 memorandum entitled "Guidance on SIP Elements Required Under Section 110(a)(1) and (2)."  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 does the New Jersey Infrastructure Submittal Meet the Requirements under Section 110(a)(1) and (2) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS; and for elements (E(ii), E(III), G) of the 1997 8-hour ozone NAAQS, and the 1997 and 2006 PM2.5 NAAQS?

The NJDEP October 2014 submittal, for the section 110(a)(2) infrastructure elements lists specific provisions of the New Jersey Statutes Annotated (NJSA), the New Jersey Administrative Code (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 September 2013 guidance.  As stated earlier, the NJDEP, in their March 2016 letter, withdrew the interstate transport element (prongs 1 and 2) from its October 2014 multi-pollutant infrastructure SIP as it relates to the 2008 ozone standard.  

Unless specifically identified in a particular section, EPA's evaluation will apply to the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.
 
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 NJSA and NJAC, 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).

State Submittal:
New Jersey Department of Environmental Protection is authorized by the State's Air Pollution Control Act, (NJSA Title 26:2C-8, 9, and 19, to establish emission limits and has established enforceable emission limits for all criteria air pollutants in its rules at N.J.A.C. 7:27. (New Jersey also cited Title 26:2C-18 in its submittal but that provision is not being relied on in this review as it was repealed, effective January 8, 1963.

New Jersey also administers a New Source Review (NSR) program that results in enforceable emission limitations contained within permits to construct, and certificates to operate sources of criteria and toxic air pollutants.  Provisions of regulations that have previously been approved by the EPA can be found at 40 CFR 52.1570 and 52.1604. 

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.  New Jersey also identified in this SIP revision that NJSA 26:2C-18 also provides further support for authority for the State to adopt and enforce regulations, control measures including emission limits and compliance schedules however, the EPA has determined that NJSA 26:2C-18 was repealed in 1963 and that the remaining named state authorities are sufficient to demonstrate authority for 110(a)(2)(A). 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. Appendix A of New Jersey's submittal provides a link to the State's APCA. 


Appendix B of New Jersey's SIP submittal provides a list of regulations adopted into the N.J.A.C. pursuant to New Jersey's APCA and included in SIPs at 40 CFR 52.1605. A summary of EPA approval of New Jersey's control measures and emission limits can be found at     
http://www2.epa.gov/approved-sips. The regulations listed in Appendix B of New Jersey's SIP submittal will reduce the ambient levels of ozone, lead, SO2, NO2 CO, PM2.5 and PM10 by reducing emissions of the associated precursors, resulting in the enforceable emission limits and other control measures necessary to address the 2008 ozone, 2009 lead, 2010 NO2 and SO2, the 2011 CO and the 2012 PM2.5 and 2006 PM10 NAAQS. 

Sierra Club Comments on New Jersey's Proposed I-SIP
When New Jersey proposed their multi-pollutant I-SIP in June 2014, the Sierra Club submitted numerous adverse comments for the 2010 SO2 NAAQS and 2008 ozone NAAQS, particularly regarding SO2 emission limits at section 110(a)(2)(A); and "interstate transport" for the 2010 SO2 NAAQS and the 2008 ozone NAAQS related to the "Good Neighbor Provision" at section 110(a)(2)(D)(i). The following is a summary of the Sierra Club's comments and brief comments by the EPA.     

Sierra Club Comments on New Jersey's multi-pollutant I-SIP
New Jersey proposed the multi-pollutant I-SIP on June 4, 2014 and the public comment period ended July 18, 2014. During this public comment period, the Sierra Club submitted extensive and detailed adverse comments to New Jersey, with a copy to EPA Region 2, concerning New Jersey's I-SIP addressing section 110(a)(2)(A) for the 2010 SO2 NAAQS and other comments related to the 2008 ozone NAAQS. New Jersey responded in writing by disagreeing with each of the Sierra Clubs comments. Sierra Club's comments and New Jersey's response to comments are found in Appendix K of New Jersey's October 17, 2014 I-SIP submittal to the EPA. The Sierra Club also made adverse comments related "interstate transport" for the 2010 SO2 NAAQS and the 2008 ozone NAAQS related to the "Good Neighbor Provision" at section 110(a)(2)(D)(i). The EPA is will take action on the "Good Neighbor Provision" for the 2010 SO2 NAAQS at a later date.  On March 30, 2016, NJ withdrew the portion of their submittal addressing the "Good Neighbor Provision" for the 2008 Ozone NAAQS; EPA is not addressing the withdrawn portion.

Section 110(a)(2)(A) for the 2010 SO2 NAAQS:
The Sierra Club basically states that the plain language section of 110(a)(2)(A) of the CAA, legislative history of the CAA, case law, EPA regulations, and legislative and regulatory interpretations made previously by EPA in rulemakings require the inclusion of enforceable emission limits in an I-SIP to prevent NAAQS exceedances in areas not designated nonattainment. Sierra Club's comments to New Jersey address the need for enforceable emission limits as related to the 2010 SO2 NAAQS.  In addition, Sierra Club states that New Jersey's I-SIP requires: (a) enforceable emission limits with 1-hour averaging period that apply at all times and (b) modeling should be conducted by New Jersey to determine if a particular source contributes to exceedances of the SO2 NAAQS and (c) I-SIPs must ensure attainment and maintenance of the NAAQS.  

In the past, the Sierra Club has made the same or similar adverse comments on other states' I-SIP submittals, including comments related to the 2010 SO2 NAAQS, as those made on New Jersey's October 2014 multi-pollutant I-SIP. The EPA's past responses to the Sierra Club general arguments and adverse comments to other states are also germane to the Sierra Club's comments to New Jersey's I-SIP and therefore the EPA refers the reader to the following EPA response to Sierra Club comments as published in the following Federal Registers: Louisiana's multi-pollutant NAAQS (including 2010 SO2) I-SIP (see 81 FR 68322, October 4, 2016), Virginia's 2008 ozone NAAQS I-SIP (see 79 FR 17043, 17047, March 27, 2014), Virginia's 2010 SO2 NAAQS I-SIP (see 80 FR 11557, March 4, 2015), West Virginia's 2010 SO2 NAAQS I-SIP (see 79 FR 62022, October 16, 2014), Pennsylvania's 2008 ozone and 2010 SO2 I-SIP (see 80 FR 46494, August 5, 2015), New Hampshire's SO2 NAAQS I-SIP (see 81 FR 44542, July 8, 2016), Florida's 2010 SO2 NAAQS I-SIP (see 81 FR 67179, September 30, 2016), and Mississippi's 2010 SO2 NAAQS I-SIP (see 81 FR 67171, September 30, 2016).  
    
The 2010 SO2 NAAQS and the 2008 ozone NAAQS:
The Sierra Club commented that New Jersey's I-SIP fails to include the 2010 SO2 and 2008 ozone NAAQS and New Jersey must revise its regulations so that the I-SIP contains accurate and up-to-date ambient air quality standards reflective of the 2010 SO2 NAAQS and the 2008 ozone NAAQS.  

New Jersey responded that the I-SIP does reference the current NAAQS in Table 1 and that New Jersey's air pollution regulations also cross reference the federal NAAQS.  New Jersey provides an example that Subchapter 8 provides a definition of "`National ambient air quality standard' or `NAAQS' means an ambient air quality standard promulgated at 40 CFR 50."  New Jersey states that the requirement in New Jersey's permit rules to comply with all NAAQS satisfies the Section 110 Infrastructure requirements. 
 
The EPA notes that New Jersey's regulation at Subchapter 13 entitled "Ambient Air Quality Standards" was last revised on May 6, 1991 and therefore should be updated to reflect the current NAAQS.   

Conclusion:
Therefore, the EPA proposes to find that NJDEP's infrastructure SIP submittal meets the requirements of CAA section 110(a)(2)(A) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.
     
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 8-hour ozone, lead, NO2, SO2, CO, PM2.5 and the PM10 NAAQS.  The EPA reviewed and approved New Jersey's 2017 Ambient Air Monitoring Network Plan for all pollutants including ozone, lead, NO2, SO2, CO, PM2.5 and PM10 on August 2, 2017.  The State is monitoring these pollutants 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 http://www.njaqinow.net on a real time basis.  

Conclusion:
Therefore, the EPA proposes to find that NJDEP's infrastructure SIP submittal meets the requirements of CAA section 110(a)(2)(B) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO NAAQS, and the 2012 PM2.5 and the 2006 PM10 NAAQS.


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. New Jersey also submitted the following statutes in support of the State's enforcement and permitting authority: NJSA 13:1D-9, NJSA 26:2C-8 and NJSA 26:2C-9.1 

EPA Evaluation:
EPA has reviewed the authority provided by NJSA 26:2C-19.  EPA notes that, besides NJSA 26:2C-19 and NJSA 26:2C-9.b., NJDEP also identifies NJSA 9.1 and NJSA 13:1D-9 as providing additional enforcement related authorities.  EPA notes that additional enforcement related authorities are specifically at 2C-9.b(4), (5), and (8).  

NJSA 26:2C-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 26:2C-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 26:2C-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 26:2C-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.

 NJSA 26:2C-9.1 disallows any person from interfering with the performance of the NJDEP of any duty under the provisions of Title 26 Chapter 2C. 
 disallows any person from refusing to permit the NJDEP, while performing its duties and having shown proper identification or written order of the NJDEP, entrance to any premises at reasonable hours. 

NJSA 13:1D-9 
 lists the specific powers to be granted to the NJDEP, which are in addition to the powers and duties vested in it by NJSA 13 or by any other law. 


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 the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS 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).  EPA made a similar finding for the 1997 PM2.5 standard for Section 110 (a)(2)(C) and (J). 73 FR 62902 (Oct. 22, 2008). 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, for example, 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 61 FR 38591 (July 25, 1996)) 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.  In this proposal 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 (Aug. 7, 1997).  The SIP continues to require preconstruction permits for minor sources and minor modifications. New Jersey has submitted to EPA revisions to its Subchapter 8 rule for incorporation into the SIP.  In this proposal EPA is not taking any action to approve or disapprove the revised State rule (Subchapter 8) with regard to minor source permitting. EPA is in the process reviewing this submittal. EPA will act on this Subchapter 8 submittal through a separate rulemaking process once our review is completed. The minor source permitting aspect of section 110(a)(2)(C) is not governed by the three-year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather due at the time that the nonattainment area plan requirements are due pursuant to CAA section 172.  See 77 FR 46354 (August 3, 2012); 77 FR 60308 (October 3, 2012, footnote 1).    

Conclusion:
Therefore, the EPA proposes to find the following regarding NJDEP's infrastructure SIP submittal meeting the requirements of CAA section 110(a)(2)(C) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS: (a) NJDEP has adequate authority and regulations to ensure that SIP-approved control regulations are enforced; (b) EPA is not taking any action to approve or disapprove NJDEP's nonattainment new source review program and its minor source permitting program as it is not due, but EPA is in the process of reviewing submittals from NJDEP and they will be addressed in a separate action; (c) though NJDEP satisfies the requirement to regulate the construction of new or modified sources through PSD delegation, since NJDEP's PSD program is a federally delegated program, NJDEP has not satisfied the requirements of sections 110(a)(2)(C) and (J)[as related to PSD] for all the NAAQS to have a state adopted program and the currently existing FIP remains in place. As explained in section IV of this TSD, NJDEP's October 2014 SIP submittal was determined to be incomplete with reference to the State's PSD program and therefore, the EPA is not taking rulemaking action on the PSD related portions of sections 110(a)(2)(C) and (J) for the seven NAAQS included in NJDEP's October 2014 infrastructure SIP submittal to address the PSD permit program requirements of part C of title I of the CAA. See section IV of this TSD for additional details.    


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 or good neighbor provision).  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

EPA is not evaluating prongs 1 and 2 with respect to the 2008 ozone NAAQS.  As previously mentioned in section IV, in a letter dated March 30, 2016, NJ withdrew the respective portion of its October 17, 2014 SIP revision.  Prongs 1 and 2 are addressed under the FIP promulgated by the CSAPR Update rule. 81 FR 74504(Oct. 26, 2016). 

EPA is also not acting on prongs 1 and 2 for the 2008 lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO NAAQS, the 2012 PM2.5 NAAQS and the 2006 PM 10 NAAQS, and will address in another action.

Prongs 3 and 4

EPA is not evaluating prongs 3 and 4 in this proposed rulemaking. As explained here and in more detail in section IV of this TSD, the EPA took action on 110(a)(2) (D)(i)(II) in the EPA's September 19, 2016 rulemaking, including interstate transport provisions concerning PSD. In the September 19, 2016 rulemaking, the EPA disapproved prong 3 (concerning the PSD regulations) and approved prong 4 (concerning 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 EPA 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 a PSD program to EPA, EPA is not required to take further action with respect to notification under this element, because 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). However, the EPA is not taking rulemaking action on the PSD related portions of section 110(a)(2)(D)(ii) for the seven NAAQS included in NJDEP's October 2014 infrastructure SIP submittal until NJDEP submits a SIP to address the PSD permit program requirements of part C of title I of the CAA. See section IV of this TSD for additional details.    

Conclusion:
Therefore, the EPA proposes to find the following regarding NJDEP's infrastructure SIP submittal addressing the requirements of CAA section 110(a)(2)(D) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS: (a) for 110(a)(2)(D)(i)(I) [prongs 1 and 2], as discussed in section VI.D, above, EPA will take action at a later date for the 2008 lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO, the 2012 PM2.5 and the 2006 PM10 NAAQS (note: no action is necessary for 2008 ozone since the portion of the submittal was withdrawn by New Jersey); (b) for 110(a)(2)(D)(i)(II) [prong 3] EPA disapproved this sub-element regarding interstate transport of air pollution to prevent significant deterioration (PSD) of air quality in other states due to the State's lack of a state adopted PSD program, 81 FR 64070 (Sept. 19, 2016); (c) for 110(a)(2)(D)(i)(II) [prong 4] EPA approved this sub-element regarding visibility protection,81 FR 64070 (Sept. 19, 2016); (d) for 110(a)(2)(D)(ii), the EPA is not taking action on this sub-element that addresses interstate and international pollution abatement to prevent significant deterioration (PSD) of air quality until NJDEP submits a SIP to address the PSD permit program requirements of part C of title I of the CAA. NJDEP is currently subject to a PSD FIP and does not have a PSD SIP. See section IV of this TSD for additional details. 

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's October 17, 2014 submittal also references NJSA 13:1D-9, 26:2C-3.2, 26:2C-8, 26:2C-22, 26:3A2-21 et seq., and 52:13D-14 and 16. As stated previously in this TSD, NJDEP's SIP supplement dated March 15, 2017 requests that NJSA 52:13D-14, 52:13D-16(a), 52:13D-16(b) and 52:13D-21(n), regarding conflict of interest and disclosure, be included in the SIP.

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 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 the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.


Section 110(a)(2(E)(ii), requires compliance with section 128 which addresses requirements to ensure that boards or persons approving permits or enforcement orders do not have any conflicts of interest.  New Jersey's submittal confirms that it does not use state boards. The State addresses the conflict of interest requirement by submitting, for incorporation into the SIP, NJSA 52:13D-14, which restricts any State officer or employee from accepting anything of value to influence him or her in his performance of duty, NJSA 52:13D-16(a) and (b), which prohibit state officers and employees, among others, from representing, appearing for or negotiating on behalf of "any person or party other than the State in connection with any cause, proceeding, application or other matter pending before any State agency," and 52:13D-21(n), that provides assurances that conflicts are adequately disclosed.  EPA proposes to find that the State has adequate authority to fulfill the requirements of section 110(a)(2)(E)(ii) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 NAAQS, and the 2006 PM10 NAAQS by its submittal, for incorporation into the State's SIP, sections NJSA 52:13D-14 and 52:13D-16(a) and (b) and 52:13D-21(n) of New Jersey's Conflict of Interest Law, which are accessible online at http://lis.njleg.state.nj.us/ and included in the EPA's Docket ID Number EPA-R02-OAR-2016-0625 at http://www.regulations.gov.   

Also, the EPA conditionally approved sub-element 110(a)(2)(E)(ii) for NJDEP's infrastructure SIP submittals dated February 25, 2008 and January 15, 2010 for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS.78 FR 35764 (June 14, 2013).  Approval was conditioned on the state submitting, for approval into the SIP, those statutes or regulations necessary to meet the requirements of CAA section 128(a)(2). On June 4, 2014 NJDEP submitted a proposal utilizing EPA's streamlined SIP processing procedures to meet the requirements of EPA's conditional approval for sub-element 110(a)(2)(E)(ii) for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS. NJDEP's June 2014 proposal was finalized and submitted to EPA for approval on October 17, 2014. Because the submittal was over one year after the conditional approval date, the state failed to comply with the commitment and the conditional approval is treated as a disapproval as a matter of law.  On March 15, 2017, NJDEP submitted a letter supplementing the October 17, 2014 SIP revision and requesting that NJSA 52:13D-14, 52:13D-16(a)-52:13D-16(b) and 52:13D-21(n) be incorporated into the SIP. The EPA now proposes to find that NJDEP has satisfied the requirements of sub-element 110(a)(2)(e)(ii) for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS.  See additional detailed explanation in section VII (Summary of Proposed Finding) of this TSD.    
  
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 CEHA (NJSA 26:3A2-21 et seq.).  NJDEP states in its SIP submittal that CEHA allows the delegated counties to act as NJDEP's representatives during investigations, including using enforcement actions, assessing and collecting penalties and settling cases. If a county wishes to participate, a memorandum of understanding (MOU) is prepared which identifies the efforts the county will perform. NJDEP confirms in its SIP submittal that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation or enforcement of any plan provision, the State retains responsibility for ensuring adequate implementation of such plan provision.    

The EPA also conditionally approved sub-element 110(a)(2)(E)(iii) for NJDEP's infrastructure SIP submittals dated February 25, 2008 and January 15, 2010 for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS. 78 FR 35764.  Approval was conditioned on the state submitting the following information: the State must identify the county or local governments or entities such as metropolitan planning organizations (MPOs) that participate in the SIP planning efforts, identify the county or local governments or entities that have been delegated responsibilities to implement or enforce portions of the SIP, and provide copies of the agreements or MOUs between the State and the county or local government or entities.  On June 4, 2014 NJDEP submitted a proposal utilizing EPA's streamlined SIP processing procedures to meet the requirements of EPA's conditional approval for sub-element 110(a)(2)(E)(iii) for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS. NJDEP's June 2014 proposal was finalized and submitted to EPA for approval as a SIP revision on October 17, 2014. As noted above, if the state fails to comply with the commitment within one year, as a matter of law, the conditional approval is treated as to a disapproval.  In NJDEP's October 17, 2014 SIP revision, the State has provided the required information and proposes to approve 110(a)(2)(E)(iii). This information is described in general in the State's SIP submittal and more specifically: (1) a hyperlink to official and unofficial copies of CEHA is included in Appendix E of NJDEP's October 2014 SIP submittal, and (2) the current list of county CEHA agencies having agreements with NJDEP to inspect certain minor sources and enforce the air pollution control laws of the State can be found at http://www.nj.gov/dep/enforcement/county.html (there are currently 22 county health agencies throughout the 21 counties) and, (3) Appendix D of NJDEP's October 2014 SIP submittal provides an MOU with Middlesex County meant to be a sample MOU developed between New Jersey and a county entity under CEHA. 

EPA in the past identified a deficiency in meeting the section 110(a)(2)(E)(iii) requirement.  See 40 CFR 52.1579 Intergovernmental cooperation. The EPA now proposes to find that New Jersey has the authority to delegate responsibilities to county or local governments to implement certain SIP responsibilities and has provided sufficient detailed information regarding delegation of authority to county agencies, as described above, and therefore, EPA proposes to fully approve section 110(a)(2)(E)(iii) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS and for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS (See additional detailed explanation in section VII (Summary of Proposed Finding) of this TSD regarding EPA's proposed approval of element and sub-elements previously conditionally approved by the EPA).


Conclusion:
Therefore, the EPA proposes to fully approve and to find the following regarding NJDEP's infrastructure SIP submittal meeting the requirements of CAA section 110(a)(2)(E) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS: (a) NJDEP has adequate resources and legal authority to carry out the SIP and meets the requirements of sub-element (E)(i); (b) since NJDEP does not have any state boards to approve permits or enforcement orders, and NJDEP's Commissioner is responsible for such actions,  CAA section 128(a)(1) is not applicable to NJDEP; and NJDEP's SIP revision addresses the requirements of CAA section 128(a)(2) and sub-element (E)(ii); (c) NJDEP fully meets the requirements of sub-element (E)(iii) requiring that the State provide sufficient information and assurances that, where the state has relied on a local or regional government, agency or instrumentality for the implementation of provision of the SIP, the state has responsibility for ensuring adequate implementation of the SIP provision.  

Also, for the reasons described above, EPA proposes to approve section 110(a)(2)(E)(ii) (conflict of interest) and (E)(iii) (delegations) for NJDEP's SIP submittal dated February 25, 2008 and supplemented on January 15, 2010, October 17, 2014 and March 15, 2017 to address the CAA infrastructure requirements for the 1997 ozone, 1997 PM2.5 and the 2006 PM2.5 NAAQS.  Also, EPA proposes to remove from 40 CFR 52.1579, Intergovernmental cooperation, a past identified deficiency in meeting the section 110(a)(2(E)(iii) requirement.  


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, 21 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. 

Based on the State's legal authority at NJSA 26:2C-9 and the State's regulatory requirements for stationary sources to monitor and report emissions at NJAC 7:27-8 (for minor sources) and 22 (for major sources) and 21 (requires the submission of annual emission statements from major sources), EPA is proposing to find that New Jersey has met the requirements of section 110 (a)(2)(F).


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 2016.  EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the website http://www.epa.gov/ttn/chief/eiinformation.html.  On February 6, 2015 (see 80 FR 8787, February 19, 2015), EPA finalized revisions to the AERR including revisions to the lead reporting threshold and clarifications to certain technical reporting details. 

EPA proposes to find that New Jersey has satisfied section 110(a)(2)(F) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.


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.  


Section 110(a)(2)(G) also requires that, for any NAAQS, states have an approved contingency plan for any Air Quality Control Region within the state that is classified as Priority I, IA, or II. See 40 CFR 51.152(c). Contingency plans, i.e., emergency episode plans, are required in areas that record pollutant concentrations in excess of threshold levels specified in 40 CFR 51.150.  A contingency plan is not required if the entire state is classified as Priority III.  Id.  The entire State of New Jersey is not classified as Priority III for the pollutants PM, SO2, NO2, and CO.  See 40 CFR 52.1571.  The classifications for the regions in New Jersey established at 40 CFR 52.1571 were established in 1974 and have not been updated since and do not include regional classifications for Pb, ozone and PM2.5.  At 40 CFR 81.331, New Jersey is designated either attainment or unclassifiable/attainment for the 2012 PM2.5, 2010 NO2, 2011 CO and 2008 Pb.  

A review of ambient air monitoring data since 2006 for PM10 indicates that annual mean and 24-hour maximum measured, certified and quality assured, values (annual mean varies from 15 to 39 ug/m3 and 24-hour maximum values vary from 38 to 127 ug/m3) are far below the threshold levels (60 ug/m3 annual geometric mean and 150 ug/m3 24-hour maximum) for particulate matter specified in 40 CFR 51.150 and therefore New Jersey should be classified as a Priority III region which does not require the preparation of a contingency plan for emergency episodes for PM10. 

A review of ambient air monitoring data since 2010 for SO2 indicates that annual mean and 24-hour maximum measured, certified and quality assured, values (annual mean varies from 0.00015 to 0.0020 ppm and 24-hour maximum values vary from 0.002 to 0.03 ppm) are far below the threshold levels (0.04 ppm annual arithmetic mean and 0.17 ppm 24-hour maximum) specified for a Priority I area and far below the threshold levels (0.02-0.04 ppm annual arithmetic mean and 0.10-0.17 ppm 24-hour maximum and 0.50 ppm three-hour average)specified for Priority II areas in 40 CFR 51.150 and therefore New Jersey should be classified as a Priority III region which does not require the preparation of a contingency plan for emergency episodes for SO2. For the 2010 SO2 NAAQS, the entire State of New Jersey was designated attainment/unclassifiable in December 2017, effective April 9, 2018 (83 FR 1098, January 9, 2018).  

A review of ambient air monitoring data since 2011 for NO2 indicates that the annual arithmetic mean measured, certified and quality assured, values (0.003-0.022 ppm) are far below the threshold level (0.06 ppm) specified for a Priority I area and therefore New Jersey should be classified as a Priority III region which does not require the preparation of a contingency plan for emergency episodes for the 2010 NO2 NAAQS. 

A review of ambient air monitoring data since 2011 for CO indicates that the 1-hour maximum and 8-hour maximum measured, certified and quality assured, values (1-hour varies from 1.8 to  5.4 ppm; and 8-hour maximum values vary from 1.5 to 3.3	 ppm) are far below the threshold levels (48 ppm 1-hour maximum; and 12 ppm 8-hour maximum) specified for a Priority I area and therefore New Jersey should be classified as a Priority III region which does not require the preparation of a contingency plan for emergency episodes for the 2011 CO NAAQS. 

A review of ambient air monitoring data since 2011 for ozone indicates that the 1-hour maximum measured, certified and quality assured, values (1-hour varies from 0.073 to 0.112 ppm) are above the threshold level (0.10 ppm 1-hour maximum) specified for a Priority I area and therefore New Jersey is correctly classified as a Priority I region requiring the preparation of a contingency plan for emergency episodes for the 2008 ozone NAAQS. 

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 ug/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. 

The 2006-2016 ambient air quality monitoring data for New Jersey do not exceed 140.4 ug/m3.  The 24-hour PM2.5 levels have typically ranged from 16 to 50 ug/m3 with a maximum value 91.0 ug/m3.  The most extreme recent event occurred during the 2002 Canadian forest fires and resulted in maximum 24-hour PM2.5 concentration of 106.7 ug/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 2012 PM2.5 standards for as long as the monitored readings stay below 140ug/m3.

As for Pb, as noted in the EPA's October 14, 2011 guidance, based on the EPA's experience to date with the Pb NAAQS and designating Pb nonattainment areas, the EPA expects that an emergency episode associated with Pb emissions would be the result of malfunction or other emergency situation at a relatively large source of Pb. Accordingly, the EPA believes the central components of a contingency plan would be to reduce emissions from the source at issue and communicate with the public as needed.  As noted above, the EPA has designated the entire State of New Jersey as unclassifiable/attainment.  Also as noted above, 40 CFR 52.1571 does not include regional classifications for Pb.  We therefore note that 40 CFR part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do not apply to Pb. 


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.  In New Jersey's October 17, 2014 SIP submittal, New Jersey provided the most recently (effective May 20, 1974) adopted version of Subchapter 12.  This most recently adopted version of Subchapter 12 is revised to include applicability to additional industrial source categories (Glass, Clay, and Concrete Products Industries) that are required to prepare standby plans to reduce emissions of air contaminants during periods of an air pollution alert, warning, and emergency.  New Jersey's October 17, 2014 SIP submittal also includes a table of specific emergency air quality control criteria for declaring an air pollution alert, warning or emergency.  

The EPA conditionally approved sub-element 110(a)(2)(G) for NJDEP's infrastructure SIP submittals dated February 25, 2008 and January 15, 2010 for the 1997 8-hour ozone NAAQS, 78 FR 35764 (June 14, 2013), provided the state submitted, for approval into the SIP, the most recent version of Subchapter 12 and the criteria for emergency levels to be used.  These documents can be found in Appendix I (emergency criteria levels) and Appendix C (Subchapter 12) and the EPA is proposing to approve revised Subchapter 12 into the SIP.  See additional detailed explanation in section VII (Summary of Proposed Finding) of this TSD.                   


Conclusion
Based upon the above analysis, the EPA proposes to approve New Jersey's October 17, 2014 SIP revision as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.  EPA is also proposing to approve the emergency powers portion of CAA section 110(a)(2)(G) for NJDEP's SIP submittal dated February 25, 2008 and supplemented on January 15, 2010, October 17, 2014 and March 15, 2017 to address the CAA infrastructure requirements for the 1997 8-hour ozone NAAQS. 

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 an 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 the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.

 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 does not address 110(a)(2)(I) in its October 17, 2014 infrastructure SIP submittal because the State indicates that the EPA's interpretation of the CAA determines that this element does not need to be addressed in the context of an infrastructure SIP submission. The EPA's interpretation of the CAA for this element is found in the EPA's September 13, 2013 guidance for CAA sections 110(a)(1) and 110(a)(2).    

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.) NJDEP's October 2014 infrastructure SIP submittal satisfies the EPA's September 13, 2013 guidance, specifically found on p 52.  Therefore, this proposal does not address Section 110(a)(2)(I) and the EPA will take no action on this sub-element as it is not considered germane to I-SIPs.  


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 for public participation for any rulemaking and SIP revision proposal, as described below in Section VI (M), below. Opportunity for public comment on NJDEP's permit actions is required at NJAC 7:27-8.10 and NJAC 7:27-22.11.  A public hearing may be held before NJDEP takes final action on a significant permit approval.   


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 the public participation process.  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 EPA's air notification system, EnviroFlash, an e-mail service that is used to broadcast information using data supplied by state and local air quality agencies.  

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 EPA's air notification system, EnviroFlash.  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.  Table 1 of NJDEP's October 2014 SIP submittal presents New Jersey's attainment status for all criteria pollutants.  The prevention of significant deterioration regulations only apply to attainment areas for a given pollutant.  NJDEP states that for all criteria pollutants other than Pb and CO, the visibility protection requirements referenced in this subsection and contained in Part C of the CAA (sections 169A and 169B) are addressed through the State's Regional Haze SIP and separate efforts involving the states of the Mid-Atlantic/Northeast Visibility Union (MANE-VU).  These Part C requirements are not affected by revisions to a NAAQS.  There are, therefore, no new applicable visibility protection obligations under CAA section 110(a)(2)(J) resulting from the revised NAAQS for lead, NO2, or ozone or for the readoption of the CO NAAQS.  For visibility protection requirements related to SO2, NO2, and particulates, in general, New Jersey included all the necessary requirements in its approved Regional Haze SIP (77 FR 19, January 3, 2012)   

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. Therefore, the EPA is not taking rulemaking action on the infrastructure SIP because of failure to contain a PSD rule to satisfy Section 110(a)(2)(J) for the seven NAAQSs included in NJDEP's October 2014 infrastructure SIP submittal, it will not start a FIP because a PSD FIP is currently in place and it will not trigger any sanctions.  

As stated above, the prevention of significant deterioration regulations only apply to attainment areas for a given pollutant.  As of August 2016, the EPA has designated the entire state of New Jersey as either attainment or unclassifiable/ attainment for the following NAAQS: 2012 PM2.5, 2010 NO2, 2008 Pb, and 2011 CO. As stated above under element 110(a)(2)(G) for the 2010 SO2 NAAQS, the EPA designated the entire State of New Jersey as attainment/unclassifiable in December 2017, effective April 9, 2018 (83 FR 1098, January 9, 2018).  The EPA has designated the entire State of New Jersey as nonattainment for the 2008 8-hour ozone NAAQS. 

However, as explained previously in this TSD, the EPA is not taking rulemaking action on the PSD related portions of section 110(a)(2)(J), as well as elements (C) and (D)(ii), for the seven NAAQS included in NJDEP's October 2014 infrastructure SIP submittal until NJDEP submits a SIP to address the PSD permit program requirements of part C of title I of the CAA. See section IV of this TSD for additional details.
    
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 six NAAQS, 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 guidance provides 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. Thus, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2008 8-hour ozone and lead NAAQS, the 2010 NO2 and SO2 NAAQS, the 2011 CO and the 2012 PM2.5 and the 2006 PM10 NAAQS.

 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:
NJDEP's October 2014 infrastructure SIP submittal states "that any new or modified significant source in the State must obtain a permit to construct and a certificate to operate before the source can be built.  (See NJSA 13:1D-9 and NJSA 2C-8 and 19 and NJAC 7:27-8).  Before issuing the permit, the NJDEP may use modeling, as necessary, to affirm that compliance with the NAAQS will be maintained when a new major source of emissions is coming online or an existing source is undertaking a modification that would lead to a significant increase in its potential to emit. (See NJAC 7:27-8.4(j) and 8.5).  A major source may also be required to perform atmospheric modeling pursuant to NJAC 7:27-22.8." 

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   
"The department shall formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State.  The department shall in addition to the powers and duties vested in it by this act or by any other law have the power to:
a.Conduct and supervise research programs for the purpose of determining the causes, effects and hazards to the environment and its ecology;" ...

New Jersey also refers to its authority pursuant to NJSA 26:2C-9.2(b)
"No operating permit, operating permit revision, or operating certificate or renewal thereof shall be issued unless the applicant demonstrates that the equipment or control apparatus will operate, or operates, in accordance with the provisions of P.L. 1954, c212 (C.26:2C-1 et seq.) and the rules and regulations adopted pursuant thereto."  

EPA proposes to find that the State has adequate authority and regulations to develop and implement plans and programs that fulfill the requirements of section 110(a)(2)(K) for the following NAAQS:  2008 8-hour ozone and lead, 2010 NO2 and SO2, 2011 CO, 2012 PM2.5 and 2006 PM10.  


 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.  NJDEP refers to NJSA 26:2C-9.5, NJSA 26:2C-9.6, and NJSA 26 2C-9.b(7) authorizing NJDEP to charge emission fees to major sources under the major stationary source permit fee rules at NJAC 7:27-22.31. 

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).  

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.  NJDEP's infrastructure SIP submittal meets all the requirements of EPA's October 2013 infrastructure guidance for section 110(a)(2)(L).  EPA proposes to find 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 the following NAAQS: 2008 8-hour ozone and lead, 2010 NO2 and SO2, 2011 CO, 2012 PM2.5 and 2006 PM10. 


 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.) require a public process for any rulemaking.  The New Jersey Department of Environmental Protection offers the opportunity to participate in the public process for any State Implementation Plan or rulemaking.  This includes a public comment period and an opportunity for 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 565 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 Authority, the North Jersey Transportation Planning Authority, and South Jersey Transportation Planning Organization, 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 the following NAAQS: 2008 8-hour ozone and lead, 2010 NO2 and SO2, 2011 CO, 2012 PM2.5 and 2006 PM10.

VII. Summary of Proposed Findings

 For the 2008 8-hour ozone NAAQS, 2008 lead NAAQS, 2010 nitrogen dioxide NAAQS, 2010 sulfur dioxide NAAQS, 2011 carbon monoxide NAAQS, 2012 PM2.5 NAAQS and the 2006 PM10 NAAQS.

   The following table summarizes EPA's proposed findings for each infrastructure SIP requirement for NJDEP's infrastructure multi-pollutant SIP revision dated October 17, 2014 and as supplemented on March 15, 2017. For a detailed discussion of EPA's proposed finding the reader is referred to the previous pages in this TSD. 

Proposed Action on New Jersey's Multi-Pollutant Infrastructure SIP Submittal

                                   iElement
2006
PM 10
                                     2008
                                      Pb
2008
Ozone
2010
NO2
2010
SO2
2011
CO
2012
PM2.5
(A): Emission limits and other control measures
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(B): Ambient air quality monitoring and data system
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(C)(i): Enforcement of SIP measures
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(C)(ii):PSD program for major sources and major modifications
                                      No
                                    action
                                      No
                                    action
                                      No
                                    action
                                      No
                                    action
                                      No
                                    action
                                      No
                                    action
                                      No
                                    action
(C)(iii): Permitting program for minor sources and minor modifications
No action
No action
No action
No action
No action
No action
No action
(D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (prongs 1 and 2)
No action
No action
                                 No action (*)
No action
No action
No action
No action
(D)(i)(II): PSD (prong 3)
                                      D*
                                      D*
                                      D*
                                      D*
                                      D*
                                      D*
                                      D*
(D)(i)(II): Visibility Protection (prong 4)
                                      A*
                                      A*
                                      A*
                                      A*
                                      A*
                                      A*
                                      A*
(D)(ii): Interstate and International Pollution Abatement
                                      No
                                    action
                                      No
                                    action
                                       
                                    action
                                      No
                                    action
                                       
                                       
                                      No
                                    action
                                       
                                       
                                      No
                                    action
                                       
                                       
                                      No
                                    action
                                       
                                       
                                      No
                                    action
                                       
                                       
(E)(i): Adequate resources
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(E)(ii): State boards/conflict of interest
NA/A
NA/A
NA/A
NA/A
NA/A
NA/A
NA/A
(E)(iii): Necessary assurances with respect to local agencies
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(F): Stationary source monitoring system
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(G): Emergency power
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(H): Future SIP revisions
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(I): Nonattainment area plan or plan revisions under part D
                                       +
                                       +
                                       +
                                       +
                                       +
                                       +
                                       +
(J)(i): Consultation with government officials
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(J)(ii): Public notification
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(J)(iii): PSD
                                      No
                                    action
                                       
                                       
                                   no action
                                      No
                                    action
                                       
                                      No
                                    action
                                       
                                      No
                                    action
                                       
                                      No
                                    action
                                       
                                      No
                                    action
                                       
                                      No
                                    action
(J)(iv): Visibility protection
                                       +
                                       +
                                       +
                                       +
                                       +
                                       +
                                       +
(K): Air quality modeling and data
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(L): Permitting fees
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
(M): Consultation and participation by affected local entities
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A
                                       A








Key: Proposed action on NJ multi-pollutant infrastructure SIP submittal dated October 17, 2014. 
A = Approve
A* = Approved at an earlier date (81 FR 64070, September 19, 2016).
   +	= Not germane to infrastructure SIPs
   No action = Not taking action in today's rulemaking.
   No action (*) = Not taking action in today's rulemaking  -  for the 2008 ozone NAAQS, NJ, in a letter dated March
   30, 2016, withdrew element (D)(i)(I) from its multi-pollutant infrastructure SIP dated October 17, 2014.
   D = Disapproval, but no further action required because federal regulations already in place.
 D* = Disapproved at an earlier date (81 FR 64070, September 19, 2016), but no further action required because Federal regulations already in place.
   NA = not applicable to NJ.

 For the 1997 8-hour ozone NAAQS, 1997 and 2006 PM2.5 NAAQS.

The EPA is proposing to approve certain elements and sub-elements of NJDEP's infrastructure SIP for the 1997 8-hour ozone NAAQS, 1997 and 2006 PM2.5 NAAQS that EPA conditionally approved in a final rule dated June 14, 2013 (78 FR 35764).  In that rule the EPA conditionally approved New Jersey's infrastructure SIP submittals for the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS for the following section 110(a)(2) elements and sub-elements: E(ii) (conflict of interest provisions), E(iii) (delegations), and for the 1997 8-hour ozone: element (G) (emergency powers). As a result of the EPA's proposed conditional approval (see 78 FR 21296, April 10, 2013) NJDEP committed, in a May 2, 2013 letter addressed to the EPA, to correct the deficiencies that EPA identified in the April 10, 2013 proposed rule and to submit them to the EPA within one year of the EPA's June 14, 2013 final action (this rule became effective on July 15, 2013) to make the infrastructure SIP fully approvable.  Therefore, to meet the commitment in the State's May 2, 2013 letter, New Jersey would need to submit a SIP revision to EPA for approval by July 15, 2014.  Also, it should be noted that CAA section 110(k)(4), entitled "Conditional Approval," states that "the Administrator may approve a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision.  Any such conditional approval shall be treated as a disapproval if the State fails to comply with such commitment." 

On June 4, 2014, New Jersey issued a proposed SIP revision, utilizing EPA's streamlined SIP processing procedures, for public comment with the intent of proposing correction to the deficiencies identified in the EPA's June 14, 2013 final rule. The public comment period for New Jersey's June 4, 2014 proposal ran from June 4 through July 23, 2014.  New Jersey then finalized the June 4, 2014 proposal when it adopted and submitted a SIP revision for EPA approval on October 17, 2014. 

Because New Jersey's October 2014 SIP revision was about three months (from the July 15, 2013 effective date of the EPA's final conditional approval dated June 14, 2013) later than the State's commitment (May 2, 2013 commitment letter), and in accordance with CAA section 110(k)(4) described above, the EPA's June 14, 2013 final conditional approval of the three 110(a)(2) elements discussed here became, by operation of law, a disapproval of each of the three elements for the 1997 8-hour ozone NAAQS, 1997 and 2006 PM2.5 NAAQS, effective June 14, 2014.  

However, although submitted about three months (based upon the effective date of the EPA's final conditional approval Federal Register) later than committed to, the EPA has reviewed and determined that the information submitted with New Jersey's October 17, 2014 SIP revision, as supplemented on March 15, 2017, that addresses the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS for the section 110(a)(2) element and sub-elements E(ii) (conflict of interest provisions), E(iii) (delegations), and for the 1997 8-hour ozone element (G) (emergency powers) satisfactorily meets the EPA requirements (as published in the EPA's final conditional approval rule on June 14, 2013) to correct the deficiencies related to the element and sub-elements.  Therefore, the EPA is proposing to find that New Jersey's October 17, 2014 infrastructure SIP submittal satisfies the requirements, as it relates to the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS, and proposes approval for the following section 110(a)(2) element and sub-elements: E(ii) (conflict of interest provisions), E(iii) (delegations), and for the 1997 8-hour ozone element (G) (emergency powers). In addition, with proposed approval of sub-element 110(a)(2)(E)(iii), the EPA proposes to remove 40 CFR 52.1579, Intergovernmental cooperation, due to a past deficiency identified by EPA.  

The following summarizes the information submitted by New Jersey in the State's October 17, 2014 infrastructure SIP submittal that corrects the deficiencies related to EPA's conditional approval:

 Conflict of interest (sub-element 110(a)(2)(E)(ii)): In its proposed conditional approval, the EPA required New Jersey to submit for approval into the SIP those statutes or regulations necessary to substantively meet the requirements of CAA 128(a)(2) that deals with conflict of interest.  In response, in a letter dated March 15, 2017, New Jersey submitted, for inclusion into its SIP, applicable sections of the New Jersey's Conflicts of Interest Law, specifically N.J.S.A. 52:13D-14 and 52:13D-16(a) and (b) and 52:13D-21(n). 

 Delegation of authority (sub-element 110(a)(2)(E)(iii): In its proposed conditional approval, the EPA required New Jersey to identify the specific organizations that will participate in developing, implementing, and enforcing the plan and the responsibilities of such organizations. In response, New Jersey has submitted as part of the SIP a location where (see Appendices D and E of New Jersey's SIP submittal) a listing of the current participants in the County Environmental Health Act (CEHA) and a typical agreement between the State and CEHA delegate agencies. New Jersey's supporting information is located in the SIP revision at Appendix D (Copy of a sample memorandum of Understanding developed between the State of New Jersey and a county or local government entity under the CEHA) and Appendix E (a link to New Jersey's County Environmental Health Act (CEHA), N.J.S.A. 26:3A2-21). 

 Emergency episodes (element 110(a)(2)(G): In its proposed conditional approval, the EPA required New Jersey to submit, the current version of NJAC 7:27-12 "Prevention and Control of Air Pollution Emergencies" [Subchapter 12] and the emergency criteria levels that will be used.  In response, New Jersey has provided, for inclusion into the SIP, the current version of Subchapter 12 (see Appendix C of the SIP submittal). New Jersey also has provided a copy of the most current version of "Emergency Air Quality Control Criteria" (see Appendix I of the SIP submittal).    

 

 

         
