
[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Proposed Rules]
[Pages 54983-54996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16649]



[[Page 54983]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2021-0871; FRL 11226-01-R2]


Air Plan Approval; New Jersey; Redesignation of the Warren County 
1971 Sulfur Dioxide Nonattainment Area to Attainment and Approval of 
the Area's Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a November 15, 2021, redesignation request and State 
Implementation Plan (SIP) revision submitted by the State of New 
Jersey. The New Jersey Department of Environmental Protection (NJDEP) 
is requesting that EPA redesignate the New Jersey portion of the 
Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality 
Control Region (Warren County, New Jersey) from nonattainment to 
attainment for the 1971 sulfur dioxide (SO2) National 
Ambient Air Quality Standards (NAAQS). In conjunction with its 
redesignation request, New Jersey submitted a limited maintenance plan 
and its associated contingency measures for the Warren County 
Nonattainment Area to ensure that attainment of SO2 NAAQS 
will continue to be maintained. EPA is proposing to approve the request 
for redesignation and the maintenance plan based on EPA's determination 
that the Warren County Nonattainment Area has met the redesignation 
requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 13, 
2023.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2021-0871 at https://www.regulations.gov. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
CBI or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental 
Protection Agency, Air Programs Branch, Region 2, 290 Broadway, New 
York, New York 10007-1866, at (212) 637-3702, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Throughout this document, ``we,'' ``us,'' and ``our'' means EPA.

Table of Contents

I. Background
II. Requirements for Redesignation Requests and Limited Maintenance 
Plans
III. Evaluation of New Jersey's Redesignation Request and Limited 
Maintenance Plan
IV. Environmental Justice Considerations
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

1971 SO2 NAAQS

    The 1971 SO2 NAAQS consisted of two primary standards 
for the protection of public health and one secondary standard for the 
protection of public welfare. The primary SO2 NAAQS 
addressed the 24-hour and annual averages of ambient SO2 
concentrations. The secondary standard addressed the 3-hour average of 
ambient SO2 concentrations. The level of the annual 
SO2 standard was 0.03 parts per million (ppm) (or 80 
micrograms per cubic meter ([mu]g/m\3\)) not to be exceeded in a 
calendar year.\1\ The level of the 24-hour standard was 0.14 ppm (or 
365 [mu]g/m\3\), not to be exceeded more than once per calendar 
year.\2\ The level of the secondary SO2 standard is a 3-hour 
standard of 0.5 ppm (or 1300 [mu]g/m\3\), not to be exceeded more than 
once per calendar year.\3\
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    \1\ See 40 CFR 50.4(a).
    \2\ See 40 CFR 50.4(b).
    \3\ See 40 CFR 50.5(a).
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    The EPA subsequently finalized a revised, more stringent, 
SO2 primary NAAQS that included a shorter 1-hour averaging 
period on June 2, 2010.\4\ The 2010 SO2 primary standard was 
set at a level of 75 parts per billion (ppb) (or 196.4 [mu]g/m3) based 
on the 3-year average of the annual 99th percentile of daily maximum 1-
hour average SO2 concentrations.\5\ The EPA provided that 
the 24-hour and annual standards were to be revoked for all areas one 
year after their individual designations under the 2010 primary NAAQS, 
except for areas previously designated nonattainment that did not have 
an approved SIP for the new 1-hour standard.\6\ The 3-hour secondary 
NAAQS remains in effect. The EPA designated \7\ all of New Jersey, 
including Warren County, for the new primary, one hour 75 ppb 2010 
SO2 NAAQS as attainment/unclassifiable on December 21, 2017.
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    \4\ See 75 FR 35520, June 22, 2010.
    \5\ See 40 CFR 50.17(a)-(b).
    \6\ See 40 CFR 50.4(e).
    \7\ See 83 FR 1098, January 9, 2018.
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1971 SO2 Nonattainment Designation

    The EPA initially designated all of Warren County, New Jersey which 
is part of the Northeast Pennsylvania-Upper Delaware Valley Interstate 
Air Quality Control Region (AQCR), as ``better than national 
standards'' (otherwise known as ``attainment'') for the 1971 primary 
and secondary SO2 NAAQS on March 3, 1978.\8\ On April 30 and 
June 26, 1986, the NJDEP submitted a request to EPA to revise the air 
quality designation for parts of Warren County from ``attainment'' to 
``nonattainment'' with respect to the 1971 primary and secondary 
SO2 NAAQS. On December 31, 1987,\9\ the EPA redesignated 
portions of Warren County as nonattainment for both the primary and 
secondary 1971 SO2 NAAQS at the request of the State of New 
Jersey (the State) to revise the air quality designation for the area. 
The Warren County Nonattainment Area (NAA) included the entire 
Townships of Harmony, Oxford, White, and Belvidere, and portions of 
Liberty and Mansfield Townships for nonattainment redesignation.\10\ 
The remaining portion of Warren County remained designated as 
attainment. The EPA issued a correction on March 14, 1988,\11\ which

[[Page 54984]]

clarified the extent of the SO2 NAA in the Liberty and 
Mansfield Townships.\12\
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    \8\ See 43 FR 8962, March 3, 1978.
    \9\ See 52 FR 49408, December 31, 1987.
    \10\ See 52 FR at 49411, December 31, 1978; 53 FR 8182, March 
14, 1988; and 40 CFR 81.331.
    \11\ See 53 FR 8182, March 14, 1988.
    \12\ The NAA included the portion of Liberty Township south of 
the Universal Transverse Mercator Grid System (UTM) coordinate N4522 
and west of UTM coordinate E505, and the portion of Mansfield 
Township west of UTM coordinate E505. See 53 FR 8182, March 14, 
1988.
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    The EPA revised the designations for those parts of Warren County 
to ``does not meet standards'' (otherwise known as ``nonattainment''). 
The EPA's revision was based on the State's request under CAA section 
107 and EPA's own assessment of air dispersion screening modeling 
performed by the NJDEP and others,\13\ which showed portions of Warren 
County were in violation of the SO2 NAAQS. The boundaries of 
the NAA were based on the results of New Jersey's air dispersion 
screening model analysis to determine the impact from the Martins Creek 
Generating Station (i.e., Martins Creek), located in Northampton, 
Pennsylvania (PA) and other nearby sources, to elevated terrain in 
Warren County out to 14 kilometers (km) from Martins Creek. New Jersey 
modeled eight existing major sources at the time in the AQCR using 
worst-case meteorology in the air dispersion screening model analysis.
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    \13\ The modeling studies evaluated by the EPA included New 
Jersey modeling analyses using the Valley Screening Model for 
multiple sources in the area, as well as modeling of the Martins 
Creek Generating Station emissions using the Industrial Source 
Complex I and Maximum Permissible Ambient Concentration Gaussian 
Plume Model with Terrain Adjustment (MPTER) models. Multisource 
modeling supporting the permit application for the Warren County 
Resource Recovery Facility was also submitted and evaluated.
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    The Pennsylvania sources included in the modeling had emission 
rates that far surpassed those of the New Jersey facilities, with 
emissions from the Martins Creek and Portland Generating Station in 
Northampton, PA (i.e., Portland), being the highest. The modeling 
predicted that the highest concentrations would occur in the elevated 
terrain located 3 to 8 km east-southeast of the Martins Creek facility, 
and that these concentrations would be primarily attributable to 
emissions from Martins Creek and Portland. In contrast, the modeling 
showed relatively low contributions from New Jersey sources in Warren 
County, NJ, to the highest annual, second highest 24-hour, and second 
highest 3-hour concentrations compared to the emissions from Martins 
Creek and Portland, often by one or more orders of magnitude.
    The designated NAA included impacted areas in New Jersey only as 
determined by the air dispersion screening modeling and did not include 
the areas in Pennsylvania where the large contributing sources were 
located, such as the Martins Creek and Portland facilities.
    Further information regarding the analysis performed for the Warren 
County nonattainment designation can be found in the Warren County 1971 
SO2 Designation TSD, which is included in the docket of this 
rulemaking.

June 1999 Air Dispersion Modeling Analysis

    In June 1999, a detailed air dispersion modeling analysis (the 1999 
study) was performed to further evaluate the impact of Martins Creek, 
Portland, and other sources in the Warren County NAA. Emissions 
modeling from Martins Creek, Portland, as well as sources located in 
the Warren County NAA (e.g., Roche Vitamins/DSM Nutritional (formerly 
Hoffman LaRoche), and the Warren County Resource Recovery Facility 
(WCRRF)) were included in the 1999 study. New Jersey included the 1999 
study in its November 15, 2021, Redesignation Request and Maintenance 
Plan SIP submission.\14\
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    \14\ See Appendix 8 Martins Creek Modeling Report 1999.
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    Martins Creek modeled sources included two large Coal-Fired Units 
(Units 1 and 2) and two large No. 6 Oil-Fired Units (Units 3 and 4), as 
well as several No. 2 Oil-Fired smaller sources that operated 
infrequently (e.g., an auxiliary boiler to start up Units 3 and 4), and 
four combustion turbines used for peaking purposes only. Portland 
modeled sources included two large Coal-Fired Units (Units 1 and 2), 
and three combustion turbines that were permitted for natural gas and 
No. 2 Oil (Units 3, 4, and 5). The Roche Vitamins/DSM Nutritional 
modeled sources included four No. 2 Oil-Fired boilers, and the WCRRF 
sources included two waste-to-energy combustion/steam generation units. 
The 1999 study showed that for the 3-hour, 24-hour, and annual 1971 
SO2 NAAQS attainment could be assured with only slight 
reductions in allowable emissions \15\ from the Martins Creek 
combustion turbines and Coal-Fired Units. Emissions from Martins Creek 
and Portland were 1 to 2 orders of magnitude larger than the sources 
located in the Warren County NAA. The 1999 study also showed that 
contributions from the Martins Creek Units dominated, whereas 
contributions from the New Jersey sources (i.e., Roche Vitamins/DSM 
Nutritional, and WCRRF) were minimal.
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    \15\ Martins Creek was modeled at approximately 32,000 pounds 
per hour and Portland was modeled at approximately 15,000 pounds per 
hour. Roche Vitamins/DSM Nutritional and Warren County RRF were each 
modeled at approximately 40 pounds per hour.
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    The initial modeling of Martins Creek's combustion turbines and 
Coal-Fired Units 1 and 2 \16\ showed predicted concentrations exceeding 
the 3-hour, 24-hour, and annual 1971 SO2 NAAQS with fuel oil 
of 0.5% sulfur content and at their emission limit of 4.0 lb/MMBtu, 
respectively. Revised rates of 0.1% sulfur content for the turbines and 
3.9 lb/MMBtu for the Coal-Fired Units were used in the final modeling.
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    \16\ Martins Creek Coal-Fired Units 1 and 2 are no longer 
capable of operating (i.e., shut down and dismantled).
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    After the modeling was redone at the reduced fuel concentrations 
emission rates and as described above, the predicted highest 3-hour 
concentration from all sources plus background was 1298 [mu]g/m3, below 
the 3-hour NAAQS of 1300 [mu]g/m3. The maximum annual concentration was 
71 [mu]g/m3, less than the annual NAAQS of 80 [mu]g/m3. The highest 24-
hour concentration was 334 [mu]g/m3, below the 24-hour NAAQS of 365 
[mu]g/m3.
    Martins Creek Coal-Fired Units 1 and 2 were the dominant source 
contributions for the 3-hour and 24-hour concentrations. Combined, 
Units 1 and 2 contributed 865 [mu]g/m\3\ of a 1298 [mu]g/m\3\ total for 
the 3-hour concentration and 205 [mu]g/m\3\ of a 334 [mu]g/m\3\ total 
for the 24-hour concentration.
    Overall, Martins Creek units were responsible for over 99% of 
contributions to the 3-hour concentrations, and over 93% of 
contributions to the 24-hour concentrations. Portland source 
contributions were lower at approximately 2.5% of contributions to the 
24-hour concentrations, and no contributions to the 3-hour 
concentrations. The New Jersey Warren County Area sources (Roche 
Vitamins/DSM Nutritional, and WCRRF) contributed less than 0.01% 
combined to both the 3-hour and 24-hour concentrations.
    The main contributor for the annual concentration was the Martins 
Creek Auxiliary Boiler,\17\ contributing 45 [mu]g/m\3\ of a 71 [mu]g/
m\3\ total. Martins Creek Units 1 and 2 were the next highest 
contributor at 6.1 [mu]g/m\3\, combined. Overall, Martins 
Creek Units were responsible for over 76% of contributions to the 
annual concentration. Portland source contributions were lower at

[[Page 54985]]

approximately 5% of contributions to the annual concentration. Roche 
Vitamins/DSM Nutritional and the WCRRF contributed less than 0.5% 
combined to the total for the annual concentration.
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    \17\ The annual average and contribution from auxiliary boiler 
were likely much lower since the boiler only operated on start-up 
conditions and would not operate a significant number of hours over 
an entire year. Since the 1999 study, the auxiliary boiler modeled 
has been shut down.
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Emissions Reductions at the Pennsylvania and New Jersey Sources

    Martins Creek and Portland facilities have had significant 
decreases in allowable emissions resulting from unit shutdowns, more 
stringent operating limits, and a stringent SIP approved Sulfur in 
Fuels regulation,\18\ since the designations and later 1999 study.
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    \18\ 25 Pa. Code Chapter 123, section 123.22, Standards for 
Contaminants/Sulfur Compound Emission/Combustion units.
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    The permitted allowable emissions for Martins Creek and Portland, 
and the New Jersey sources included in the 1999 study are shown below 
in Table 1 for 1987, 2000, and 2018. The table shows that total 
allowable emissions from these sources have dropped significantly since 
the designations, dropping by over 80%, from 1987 to 2018.

                                Table 1--Allowable Sulfur Dioxide Emissions \19\
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               Facility                          1987                     2000                     2018
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Martins Creek:
    Units 1 and 2....................  14,520 lb/hr...........  14,520 lb/hr...........  Shutdown.
    Units 3 and 4....................  17,600 lb/hr...........  17,600 lb/hr...........  8,800 lb/hr.
    Auxiliary Boiler 4...............  168.2 lb/hr............  168.2 lb/hr............  Shutdown.
    Four Combustion Turbines (each)..  145.2 lb/hr............  36.3 lb.hr.............  5.9 lb/hr.
Portland Units 1 and 2...............  14,652 lb/hr...........  14,652 lb/hr...........  Shutdown.
Roche Vitamins/DSM Nutritional.......  710 lb/hr..............  37.6 lb/hr.............  1.5 lb/hr.
WCRRF................................  39.7 lb/hr.............  39.7 lb/hr.............  39.7 lb/hr.
Lower Mount Bethel Energy \20\.......  Not yet built..........  Not yet built..........  5.4 lb/hr.
                                      --------------------------------------------------------------------------
    Total............................  48,280 lb/hr (211,467    47,163 lb/hr (205,507    8,852 lb/hr (38,750
                                        TPY).                    TPY).                    TPY).
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    Significant changes at Martins Creek, many of which have led to 
large emission reductions as shown in Table 1, include the following:
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    \19\ From Table 2: Allowable Sulfur Dioxide Emissions of New 
Jersey's November 15, 2021, Redesignation Request and SIP 
submission.
    \20\ Lower Mount Bethel Energy is a 650 MW natural gas-powered 
facility that began operation in 2004. The facility is located 
adjacent to the Martins Creek facility and is listed as a source of 
interest (but has minimal allowable SO2 emissions as 
shown in Table 1).

--Martins Creek Coal-Fired Units 1 and 2 were permanently shut down in 
September 2007 and dismantled one year later. The boiler building and 
emissions stack were subsequently demolished.
--Martins Creek No. 6 Oil-Fired Units 3 and 4 are currently limited to 
burning No. 6 oil at no more than 0.5% sulfur, to comply with the 25 
Pa. Code Chapter 123, section 123.22, even though these equipment's 
emissions were modeled at a sulfur content of 1% in the 1999 study. The 
Units were previously limited to 0.7% sulfur in September 2007. 
Allowable SO2 emissions from Martins Creek Units 3 and 4 are 
limited to 8,800 pounds per hour as shown for 2018, in Table 1 (reduced 
from 17,600 pounds per hour since 2000).
--The auxiliary boiler at Martins Creek has been shut down since 
November 2014, after initially converting to natural gas in September 
2007.
--Martins Creek combustion turbines, which were modeled based on 
burning No. 2 oil at 0.1% sulfur, are currently permitted to use only 
natural gas. Allowable SO2 emissions from Martins Creek 
combustion turbines is currently limited to approximately 6 pounds per 
hour each as shown for 2018, in Table 1.
    The shutdown of Martins Creek Coal-Fired Units 1 and 2,\21\ and the 
limiting of Units 3 and 4 to 0.7% sulfur and limiting of the auxiliary 
boiler to firing natural gas were included in an October 2003 
Settlement Agreement between NJDEP, the Pennsylvania Department of 
Environmental Protection (PADEP) and Lower Mount Bethel Energy.\22\ The 
settlement agreement stipulations for Martins Creek were incorporated 
into the Martins Creek Title V operating permit. Significant changes at 
Portland, many of which have also led to large emission reductions, 
include the following:
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    \21\ The agreement initially limited Units 1 and 2 to 3.3 lb/
MMBtu by May 2004.
    \22\ See Appendix 2 of New Jersey's November 15, 2021, 
Redesignation Request and Maintenance Plan SIP submittal.

--Portland Coal-Fired Units were shut down in June 2013 (Unit 2), and 
May 2014 (Unit 1), to comply with a May 2013 Consent Decree filed in 
the U.S. District Court for the Eastern District of PA.\23\
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    \23\ See Civil Action No. 07-CV-5298 (JKG); and Appendix 5 of 
New Jersey's November 15, 2021, Redesignation Request and 
Maintenance Plan SIP submittal.
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--Portland's Units 1 and 2 were also subject to interim and final 
limits established by the EPA in a final rule issued on November 7, 
2011, in response to a petition filed by New Jersey under Section 126 
of the CAA (126 petition).\24\ New Jersey filed its 126 petition 
requesting that the EPA make a finding that emissions from Portland 
contributed significantly to nonattainment and/or interference with 
maintenance of the revised, more stringent 2010 1-hour SO2 
NAAQS in New Jersey.
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    \24\ 76 FR 69052 (November 7, 2011).
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--Portland combustion turbines, which were modeled in 1999 based on 
burning No. 2 oil at 0.1% sulfur, are limited to 0.05% sulfur under 25 
PA Code Chapter 123.22.

    Although Roche Vitamins/DSM Nutritional and the WCRRF had a minimal 
contribution as demonstrated by the 1999 study (i.e., they contributed 
less than 0.01% combined to both the 3-hour and 24-hour concentrations 
and less than 0.5% combined to the total for the annual concentration), 
both facilities have had decreases in allowable emissions.

--All fuel use at Roche Vitamins/DSM Nutritional was removed from its 
operating permit in 2014. Two of the four boilers were removed from its 
permit by 2019. The other two boilers were converted to natural gas by 
2019.
--The two WCRRF waste combustors were disconnected and were rendered 
inoperable by a permit modification in February 2020.
    Actual emission from Martins Creek and Portland as well as the New 
Jersey

[[Page 54986]]

sources have also declined substantially as shown in Table 2.
    Martins Creek, which in 1990 emitted over 33,200 tons per year 
(TPY) of SO2, was emitting an average of 49 TPY of 
SO2 from 2018 to 2020. Portland, which in 1990 emitted 
25,400 TPY of SO2, averaged less than 0.5 TPY \25\ of 
SO2 from 2018 to 2020. Total SO2 emissions from 
both Roche Vitamins/DSM Nutritional and the WCRRF are less than 5 TPY. 
In 2020, there were no other sources within the Warren County 
Nonattainment Area emitting above 1 TPY of SO2.\26\
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    \25\ Data from Clean Air Markets Division (CAMD).
    \26\ 2020 New Jersey Emission Statement.
    \27\ From Table 3: Actual Sulfur Dioxide Emissions of New 
Jersey's November 15, 2021, Redesignation Request and SIP 
submission. Note: The 2018 to 2020 data column, which was not 
included in New Jersey submission, has been added by EPA from data 
obtained from CAMD and New Jersey Emission Statements.
    \28\ Average of emissions from 2015 to 2017.
    \29\ Average emissions from 2018 to 2020.
    \30\ Lower Mount Bethel Energy is a 650 MW natural gas-powered 
facility that began operation in 2004. The facility is located 
adjacent to the Martins Creek facility and is listed as a source of 
interest (but has minimal SO2 emissions as shown in Table 
1).

                                                      Table 2--Actual Sulfur Dioxide Emissions \27\
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              Facility                        1990                    2000                    2010              2015-2017 \28\         2018-2020 \29\
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Martins Creek:
    Units 1 and 2..................  25,637 TPY............  18,775 TPY............  Shutdown.............  Shutdown.............  Shutdown.
    Units 3 and 4..................  7,656 TPY.............  6,925 TPY.............  508 TPY..............  106 TPY..............  49 TPY.
    Auxiliary Boiler 4.............  NA....................  0.....................  Shutdown.............  Shutdown.............  Shutdown.
    Four Combustion Turbines (each)  NA....................  0.....................  Shutdown.............  Shutdown.............  Shutdown.
Portland Units 1 and 2.............  25,428 TPY............  20,295 TPY............  22,072 TPY...........  Shutdown.............  Shutdown.
Roche Vitamins/DSM Nutritional.....  No data...............  16.1 TPY..............  0.2 TPY..............  1.8 TPY..............  1.7 TPY.
WCRRF..............................  No data...............  4.8 TPY...............  11 TPY...............  12 TPY...............  2.9 TPY.
Lower Mount Bethel Energy \30\.....  Not yet built.........  Not yet built.........  6.3 TPY..............  9 TPY................  6.2 TPY.
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................  58,721 TPY............  52,100 TPY............  22,597 TPY...........  129 TPY..............  59.8 TPY.
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SO2 Attainment SIP and Determination of Attainment

    New Jersey was required to submit an attainment SIP to the EPA by 
May 15, 1992, i.e., within 18 months of November 15, 1990. The Warren 
County NAA was required to attain the SO2 NAAQS within five 
years after November 15, 1990. Therefore, the Warren County 
SO2 NAA's attainment date was November 15, 1995.
    The NJDEP submitted a request on August 17, 2018, for the EPA to 
make a determination that the Warren County SO2 NAA had 
attained the 1971 primary and secondary SO2 NAAQS.\31\ On 
May 20, 2019 (84 FR 22768) the EPA proposed to make the determination 
that the Warren County NAA attained the 3-hour, 24-hour, and annual 
1971 SO2 NAAQS.
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    \31\ See Warren County SO2 Clean Data Request.
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    On July 23, 2019, NJDEP submitted a supplement to the Warren County 
SO2 Clean Data Request to provide clarification that New 
Jersey has met its obligation to satisfy Nonattainment New Source 
Review (NNSR) and the Emission Inventory (EI) SIP requirements for the 
1971 SO2 NAAQS through previous SIP submittals to the EPA on 
February 19, 1993,\32\ (for NNSR) and June 11, 2015 (for EI).\33\
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    \32\ See EPA approval at 61 FR 38591 (July 25, 1996).
    \33\ See EPA approval at 82 FR 44099 (September 21, 2017).
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    On August 21, 2019,\34\ the EPA determined that the Warren County 
NAA attained the 3-hour, 24-hour, and annual 1971 SO2 NAAQS. 
This determination (informally known as a Clean Data Determination or 
CDD) was based on air quality monitoring data, air quality dispersion 
modeling information, and other supporting information. The 
determination suspended the requirement for the State to submit a 
reasonable further progress plan, attainment demonstration, contingency 
measures and any other plan elements relating to attainment of the 3-
hour, 24-hour, and annual 1971 SO2 NAAQS for as long as the 
area continues to meet each NAAQS.
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    \34\ See 84 FR 43504, August 21, 2019.
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II. Requirements for Redesignation Requests and Limited Maintenance 
Plans

    The CAA provides the requirements for redesignating a NAA to 
attainment. Specifically, CAA section 107(d)(3)(E) allows for 
redesignation of a NAA provided that: (1) the Administrator determines 
that the area has attained the applicable NAAQS; (2) the Administrator 
has fully approved the applicable implementation plan for the area 
under CAA Part D and section 110(k); (3) the Administrator determines 
that the improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from implementation of the applicable 
SIP and applicable federal air pollutant control regulations and other 
permanent and enforceable reductions; (4) the Administrator has fully 
approved a maintenance plan for the area as meeting the requirements of 
CAA section 175A; and (5) the state containing such area has met all 
requirements applicable to the area for purposes of redesignation under 
CAA section 110 and Part D.
    CAA section 175A requires states to submit a SIP revision which 
provides for maintenance of the NAAQS for at least 10 years after 
redesignation, including any additional control measures as may be 
necessary to ensure such maintenance. In addition, maintenance plans 
are to contain such contingency provisions as we deem necessary to 
assure the prompt correction of a violation of the NAAQS that occurs 
after redesignation.
    The EPA considers the core provisions of the maintenance plan to 
include: an Attainment Emissions Inventory; a Maintenance 
Demonstration; a Monitoring Network; a Verification of Continued 
Attainment; and a Contingency Plan. The EPA's primary guidance on 
maintenance plans and redesignation requests is a September 4, 1992, 
memo from John Calcagni, entitled ``Procedures for Processing Requests 
to Redesignate Areas to Attainment'' (i.e., Calcagni Memo).\35\
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    \35\ EPA's ``Procedures for Processing Requests to Redesignate 
Areas to Attainment'' can be found at https://www.epa.gov/ground-level-ozone-pollution/procedures-processing-requests-redesignate-areas-attainment.
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    The EPA has also provided states seeking redesignation with the 
option of submitting a Limited Maintenance Plan (LMP), rather than a 
full maintenance plan, where design values are at or

[[Page 54987]]

below 85% of the NAAQS.\36\ The EPA has developed guidance memoranda on 
LMP options that are specific to ozone, particulate matter, and the 
carbon monoxide NAAQS.\37\ Consistent with the EPA's policy for LMP's 
presented in those guidance documents, the EPA believes that the LMP 
option is justifiable and appropriate in the case for the 1971 
SO2 NAAQS. In an LMP, the Maintenance Demonstration is 
considered satisfied if the design values meet the air quality criteria 
of 85%. Moreover, there is no requirement to project emissions over the 
maintenance period in the state's plan.
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    \36\ Per EPA guidance, the design values for the nonattainment 
areas should continue to be at or below 85% of the NAAQS until the 
time of final EPA action on the redesignation.
    \37\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards, dated November 16, 1994; ``Limited 
Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas'' 
from Joseph Paisie, Office of Air Quality Planning and Standards, 
dated October 6, 1995; ``Limited Maintenance Plan Option for 
Moderate PM10 Nonattainment Areas'' from Lydia Wegman, 
Office of Air Quality Planning and Standards, dated August 9, 2001; 
and ``Guidance on the Limited Maintenance Plan Option for Moderate 
PM2.5 Nonattainment Areas and PM2.5 
Maintenance Areas'', dated October 2022.
---------------------------------------------------------------------------

III. Evaluation of New Jersey's Redesignation Request and Limited 
Maintenance Plan

    On November 15, 2021, New Jersey submitted to the EPA a request for 
redesignation of the Warren County 1971 SO2 NAA to 
attainment and a SIP revision containing a maintenance plan for the 
area. New Jersey opted to develop a LMP instead of a full maintenance 
based on the State's demonstration that the air quality was below 85% 
of the 3-hour, 24-hour, and annual 1971 SO2 NAAQS.
    The EPA's evaluation of New Jersey's redesignation request and LMP 
was based on consideration of the five redesignation criteria provided 
under CAA section 107(d)(3)(E).

Criteria (1)--The Warren County SO2 Nonattainment Area Has Attained the 
1971 SO2 NAAQS

    For redesignating an NAA to attainment, the CAA requires the EPA to 
determine that the area has attained the applicable NAAQS.\38\ The two 
primary methods for evaluating whether an NAA has attained the 1971 
SO2 NAAQS are air dispersion modeling and air quality 
monitoring.
---------------------------------------------------------------------------

    \38\ See CAA section 107(d)(3)(E)(i).
---------------------------------------------------------------------------

    In accordance with CAA section 107(d)(3)(E)(i), the EPA determined 
that the Warren County NAA attained the 3-hour, 24-hour, and annual 
1971 SO2 NAAQS in an earlier action.\39\
---------------------------------------------------------------------------

    \39\ See 84 FR 43504, August 21, 2019.
---------------------------------------------------------------------------

    The EPA's CDD was based on air quality dispersion modeling (i.e., 
1999 study), and the subsequent large SO2 emissions 
reductions that occurred from the primary contributing sources since 
the modeling was performed, as the primary basis to conclude that the 
area was attaining the 1971 SO2 NAAQS.
    The EPA also considered other information, which added additional 
support to conclude that the area has attained the 1971 SO2 
NAAQS. The additional information considered by the EPA included 
SO2 emissions trends and control measures within Warren 
County; ambient air quality data from the Columbia, NJ (AQS ID 34-041-
0007); Chester, NJ (AQS ID 34-027-3001); and Easton, PA (AQS ID 42-095-
8000) air monitoring sites; and ambient air quality data from a Warren 
County Air Monitoring Project Special Study.\40\ The EPA also 
considered a New Jersey analysis to estimate SO2 
concentrations in the Warren County NAA based on the interpolation of 
data from the Columbia, NJ, Chester, NJ, and Easton, PA, air monitoring 
sites.\41\
---------------------------------------------------------------------------

    \40\ Air monitoring at site locations within the nonattainment 
area (i.e., Belvidere High School, Demeter Farm on Scott's Mountain, 
and Warren County Municipal Building) were part of a special study 
(i.e., Warren County Air Monitoring Project or WCAMP) that was 
conducted from November 1, 2002, to October 31, 2005. In the three-
year study period, SO2 ambient concentrations were well 
below the 3-hour, 24-hour, and annual 1971 SO2 NAAQS.
    \41\ Further information regarding the analysis performed for 
EPA's CDD can be found in the CDD Technical Support Document (TSD) 
for EPA's Proposed Rulemaking for the Determination of Attainment 
for the 1971 Sulfur Dioxide National Ambient Air Quality Standard; 
Warren County NAA, which is in the docket for this rulemaking.
---------------------------------------------------------------------------

    The Columbia, NJ monitor is the nearest monitor to the Warren 
County NAA in Knowlton Township, in Warren County, New Jersey and is 
approximately 5 km north of the northern border of the NAA. The site 
was added to New Jersey's Ambient Air Monitoring Network, in September 
2010, well after the 1971 SO2 nonattainment designation, to 
measure the impact of major point sources, primarily Portland, located 
on the Pennsylvania side of the Delaware River. The site is 
approximately 10 km northeast of Martins Creek (and less than 2 km 
northeast of Portland).
    The Chester, NJ monitoring site is in Chester township in Morris 
County, New Jersey. The site is located approximately 20 km east of the 
eastern border of the Warren County NAA. The site is approximately 35 
km east of Martins Creek.
    The Easton, PA monitoring site was in Northampton County, 
Pennsylvania, approximately 5 km southwest of the southern border of 
the Warren County NAA. This site was approximately 15 km southwest of 
Martins Creek.
    The EPA considered the air monitoring data (2011 to 2017) from the 
Columbia, NJ, Chester, NJ, and Easton, PA, air monitoring sites to 
support our conclusion that the Warren County NAA was attaining the 3-
hour, 24-hour, and annual 1971 sulfur dioxide NAAQS. The design values 
were all well below the 3-hour, 24-hour, and annual 1971 SO2 
NAAQS. The data was collected and quality-assured in accordance with 40 
CFR part 58 and recorded in the EPA Air Quality System (AQS).\42\ 
However, the air monitoring data was considered supporting 
information,\43\ and not the primary basis for the CDD. The CDD's 
primary basis was air quality dispersion modeling, and the subsequent 
large SO2 emissions reductions that occurred from the 
primary contributing sources. For the EPA to have concluded that the 
Warren County NAA had attained the 3-hour, 24-hour, and annual 1971 
SO2 NAAQS through air monitoring data alone, the EPA would 
have needed information that supported a showing that one or more of 
the monitors was in the area of maximum ambient SO2 
concentration.
---------------------------------------------------------------------------

    \42\ https://www.epa.gov/aqs.
    \43\ See CDD TSD at 13-17.
---------------------------------------------------------------------------

    The Columbia, NJ, Chester, NJ, and Easton, PA, monitors were all 
located outside of the Warren County NAA, and not in the location of 
maximum impact based on previous modeling for the 1971 SO2 
NAAQS.
    The EPA also noted in the TSD for the CDD that the previously 
identified maximum impact area had also likely changed resulting from 
the very large emissions reductions that have occurred, since the 1987 
designation, from the primary contributing sources and from within 
Warren County, as discussed above. As previously mentioned, Martins 
Creek, which in 1990 emitted over 33,200 tons of SO2 per 
year, was emitting an average of 49 TPY of SO2 from 2018 to 
2020. Portland, which in 1990 emitted approximately 25,400 TPY of 
SO2, averaged less than 0.5 TPY \44\ of SO2 from 
2018 to 2020. Previous modeling, in addition to showing significant 
impacts from the large power plant emissions at the time, also showed 
that the smaller sources in the area caused minimal impacts. These 
results suggested that the sources remaining in this area were not 
causing significant gradients in concentrations.

[[Page 54988]]

Due to the absence of significant sources in the area, the EPA 
concluded that the monitoring data from Columbia, NJ, Chester, NJ, and 
Easton, PA, may have been indicative of recent air quality throughout 
the Warren County NAA.
---------------------------------------------------------------------------

    \44\ Data from Clean Air Markets Division (CAMD).
---------------------------------------------------------------------------

    The EPA also indicated in the CDD TSD that updated EPA modeling 
performed in support of EPA's November 7, 2011, final rule \45\ 
addressing the CAA 126 petition filed by New Jersey showed the 
Columbia, NJ monitor to be in the area of maximum concentration for 
Portland facility emissions and nearby background sources for the 2010 
1-Hour SO2 NAAQS. As noted earlier in Section I., 
Background, the EPA finalized a revised, more stringent SO2 
primary NAAQS that included a shorter 1-hour averaging period on June 
2, 2010. In the CDD TSD, EPA indicated that we believed that analyses 
addressing the more stringent, newer, standard were useful in 
evaluating air quality with respect to the older 1971 standards, 
including whether the Columbia monitoring site, in the vicinity of the 
Warren County NAA, was located in the area of maximum concentration for 
the SO2 emissions mix at the time of the 126 petition in 
2011. In granting New Jersey's 126 petition,\46\ EPA concluded that the 
numerous exceedances of the 1-hour SO2 NAAQS recorded at the 
Columbia site since monitoring began in September 2010 were 
attributable to large SO2 emissions from Portland. The EPA's 
conclusion was based on the review of wind trajectory analysis that 
showed NAAQS exceedances when prevailing winds in the area came from 
the direction of Portland, and review of continuous emissions 
monitoring (CEMs) data for Portland. Between September 23, 2010, and 
June 31, 2011, the Columbia monitor measured exceedances of the 1-hour 
SO2 NAAQS on 29 days. After Portland Units 1 and 2 reduced 
emissions to comply with the 126 petition's limits, and were shut down 
during 2013 and 2014, the 1-hour SO2 design values at 
Columbia showed significant decline and were below the 1-hour 
SO2 NAAQS by 2014. The EPA further concluded in the CDD TSD, 
that the air quality monitoring data from the Columbia monitor provided 
additional support that current air quality in the area is meeting the 
3-hour, 24-hour, and annual 1971 SO2 NAAQS. The EPA based 
its conclusions in the CDD TSD on based on the revised SO2 
emissions mix in the area, the close proximity of the monitor to the 
Portland facility and the Warren County NAA, and the monitor's response 
to the impact from Portland emissions.
---------------------------------------------------------------------------

    \45\ See 76 FR 69052 (November 7, 2011).
    \46\ Pursuant to 126(c), the EPA established a remedy (i.e., 
emission limits and compliance schedule for Portland Coal-Fired 
Units 1 and 2), to bring the plant into compliance.
---------------------------------------------------------------------------

    In its November 2021 redesignation request and maintenance plan 
submittal to the EPA, New Jersey included recent 2015 to 2019 
SO2 design values for air monitoring sites in Columbia, NJ, 
Chester, NJ and Freemansburg, PA (AQS ID 42-095-0025). New Jersey noted 
in its submittal that the Easton, PA air monitoring site was shut down 
and replaced by the Freemansburg, PA monitor, which began operating in 
2018. The Freemansburg, PA monitor is in Northampton County, PA, 
approximately 25 km southwest of Martins Creek, and approximately 17 km 
southwest of the southern border of the Warren County NAA. The 
Freemansburg, PA monitor is approximately 10 km further away from 
Martins Creek and the Warren County NAA than the Easton, PA monitor, 
which it replaced, and may be similarly indicative of recent air 
quality due to the absence of significant sources in the area.
    Table 3 shows recent SO2 design values from 2015 to 2021 
from monitoring sites in Columbia, NJ, Chester, NJ, Easton, PA, and 
Freemansburg, PA, monitoring sites. The EPA added 2020 and 2021 design 
values, which were not included in New Jersey's November 2021 
submission, because they are more recent certified air monitoring 
design values available from EPA's AQS.47 48
---------------------------------------------------------------------------

    \47\ https://www.epa.gov/aqs.
    \48\ The Freemansburg, PA monitor replaced the Easton, PA 
monitor in 2018.

                                Table 3--Sulfur Dioxide Monitoring Design Values
----------------------------------------------------------------------------------------------------------------
                                        2015       2016       2017       2018       2019       2020       2021
                Site                   (PPM)      (PPM)      (PPM)      (PPM)      (PPM)      (PPM)      (PPM)
----------------------------------------------------------------------------------------------------------------
Columbia, NJ, AQS ID 34-041-0007:
    3-hour.........................      0.004      0.006      0.003      0.005      0.004      0.004      0.008
    24-hour........................      0.002      0.002      0.002      0.004      0.002      0.002      0.003
    Annual.........................      0.000      0.000      0.000      0.001      0.000      0.000      0.000
Chester, NJ, AQS ID 34-027-3001:
    3-hour.........................      0.005      0.004      0.002      0.003      0.003      0.003      0.004
    24-hour........................      0.003      0.002      0.001      0.002      0.001      0.002      0.001
    Annual.........................      0.000      0.000      0.000      0.000      0.000      0.000      0.000
Freemansburg, PA,\48\ AQS ID 42-095-
 0025:
    3-hour.........................  .........  .........  .........      0.004      0.004      0.005      0.005
    24-hour........................  .........  .........  .........      0.001      0.002      0.002      0.002
    Annual.........................  .........  .........  .........      0.000      0.000      0.000      0.000
Easton, PA, AQS ID 42-095-8000:
    3-hour.........................      0.012      0.012      0.106  .........  .........  .........  .........
    24-hour........................      0.007      0.005      0.059  .........  .........  .........  .........
    Annual.........................      0.001      0.001      0.001  .........  .........  .........  .........
----------------------------------------------------------------------------------------------------------------
 

    As Table 3 shows, that when considering the additional available 
air monitoring data collected since the EPA's previous CDD,\49\ there 
were no monitored violations of the 3-hour, 24-hour, and annual 1971 
NAAQS of 0.5 ppm, 0.140 ppm and 0.030 ppm, respectively. The design 
values continue to be well below 3-hour, 24-hour, and annual 1971 
SO2 NAAQS. As will be further discussed later in this action 
as part of EPA's evaluation of New Jersey's LMP, the design values of 
0.43 ppm, 0.119 ppm, and 0.026 ppm for the 3-hour, 24-hour, and annual 
1971 NAAQS, respectively, are also well below the air quality criteria 
of 85% for an LMP.
---------------------------------------------------------------------------

    \49\ 84 FR 43504, August 21, 2019.

---------------------------------------------------------------------------

[[Page 54989]]

    The EPA's review of the recent air monitoring data from the 
Columbia, NJ, Chester, NJ, Easton, PA, and Freemansburg, PA, monitoring 
sites supports the previous determination that the Warren County NAA 
has attained the 3-hour, 24-hour, and annual 1971 SO2 NAAQS.

Criteria (2)--New Jersey Has a Fully Approved SIP Under 110(k); 
Criteria (5)--New Jersey Has Met All Applicable Requirements Under 
Section 110 and Part D of the CAA

    For redesignating a nonattainment area to attainment under a NAAQS, 
CAA section 110 and part D of title I require EPA to determine that the 
state has met all applicable requirements for that NAAQS (CAA section 
107(d)(3)(E)(v)). Additionally, under CAA section 110(k) EPA must 
determine that the state has a fully approved SIP for that NAAQS for 
the area.\50\
---------------------------------------------------------------------------

    \50\ See CAA Sec.  107(d)(3)(E)(ii).
---------------------------------------------------------------------------

    As further discussed in this section, the EPA proposes to find that 
New Jersey has met all applicable SIP requirements for the Warren 
County SO2 NAA under CAA section 110 (general SIP 
requirements) for purposes of redesignation. Additionally, the EPA 
proposes to find that the New Jersey SIP satisfies the criterion that 
it meets applicable SIP requirements for purposes of redesignation 
under CAA title I part D in accordance with section 107(d)(3)(E)(v). 
Further, the EPA proposes to determine that the SIP is fully approvable 
with respect to all requirements applicable to the 1971 SO2 
NAAQS for purposes of redesignation in accordance with section 
107(d)(3)(E)(ii). In making these determinations, the EPA ascertained 
which requirements are applicable to the Warren County SO2 
NAA and, if applicable, that they are fully approved under CAA section 
110(k).

A. The Warren County SO2 NAA Has Met All Applicable 
Requirements Under Section 110 and Part D of the CAA

General SIP Requirements
    General SIP elements and requirements are delineated in CAA section 
110(a)(2) of title I, part A. These requirements include, but are not 
limited to, the following: Submittal of a SIP that has been adopted by 
the state after reasonable public notice and hearing; provisions for 
establishment and operation of appropriate procedures needed to monitor 
ambient air quality; implementation of a source permit program; 
provisions for the implementation of CAA part C requirements 
(Prevention of Significant Deterioration (PSD)) and provisions for the 
implementation of CAA part D requirements (New Source Review (NSR)) 
permit programs); provisions for air pollution modeling; and provisions 
for public and local agency participation in planning and emission 
control rule development. Section 110(a)(2)(D) requires that SIPs 
contain certain measures to prevent sources in a state from 
significantly contributing to air quality problems in another state. To 
implement this provision, the EPA has required certain states to 
establish programs to address the interstate transport of air 
pollutants.
    The section 110(a)(2)(D) requirements for a state are not linked 
with a particular NAA's designation and classification in that state. 
In reviewing a redesignation request, the EPA believes that the 
requirements linked with a particular NAA's designation and 
classifications are the relevant measures to evaluate. The transport 
SIP submittal requirements, where applicable, continue to apply to a 
state regardless of the designation of any one particular area in the 
state. Thus, the EPA does not believe that the CAA's interstate 
transport requirements should be construed to be applicable 
requirements for purposes of redesignation.
    In addition, the EPA believes other section 110 elements that are 
neither connected with nonattainment plan submissions nor linked with 
an area's attainment status are applicable requirements for purposes of 
redesignation. The area will still be subject to these requirements 
after the area is redesignated. The section 110 and part D requirements 
which are linked with a particular area's designation and 
classification are the relevant measures to evaluate in reviewing a 
redesignation request. This approach is consistent with the EPA's 
existing policy on applicability (i.e., for redesignations) of 
conformity and oxygenated fuels requirements, as well as with section 
184 ozone transport requirements.\51\
---------------------------------------------------------------------------

    \51\ See Reading, Pennsylvania, proposed and final rulemakings 
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); 
Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 
7,1996); and Tampa, Florida, final rulemaking at (60 FR 62748, 
December 7, 1995). See also the discussion on this issue in the 
Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in 
the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 
19, 2001).
---------------------------------------------------------------------------

Title I, Part D. Applicable SIP Requirements
    CAA section 172(c) sets forth the basic requirements of attainment 
plans for NAAs that are required to submit them pursuant to section 
172(b). Subpart 5 of part D, including CAA section 191 and 192, 
establishes requirements for SO2, nitrogen dioxide and lead 
NAAs.\52\
---------------------------------------------------------------------------

    \52\ See the General Preamble for Implementation of Title I (57 
FR 13498) for a thorough discussion of the requirements contained in 
section 172(c).
---------------------------------------------------------------------------

    Section 172(c)(1) requires the plans for all NAAS to provide for 
the implementation of all Reasonably Available Control Measures (RACM) 
as expeditiously as practicable and to provide for attainment of the 
NAAQS. The EPA interprets this requirement to impose a duty on all NAAs 
to consider all available control measures and to adopt and implement 
such measures as are ``reasonably available'' for implementation in 
each area as components of the area's attainment demonstration. Under 
section 172, states with NAAs must submit plans providing for timely 
attainment and meeting a variety of other requirements.
    The EPA's longstanding interpretation of the nonattainment planning 
requirements of section 172 is that once an area is attaining the 
NAAQS, those requirements are not ``applicable'' for purposes of CAA 
section 107(d)(3)(E)(ii). Therefore, such requirements do not need to 
be approved in the SIP before the EPA can redesignate the area. In the 
1992 General Preamble for Implementation of Title I, the EPA set forth 
its interpretation of applicable requirements for purposes of 
evaluating redesignation requests when an area is attaining a 
standard.\53\ The EPA noted that the requirements for Reasonable 
Further Progress (RFP) and other measures designed to provide for 
attainment do not apply in evaluating redesignation requests because 
those nonattainment planning requirements ``have no meaning'' for an 
area that has already attained the standard.\54\ This interpretation 
was also set forth in the Calcagni Memo. The EPA's understanding of 
section 172 also forms the basis of its Clean Data Policy (CDP). The 
CDP applies to SO2 in the EPA's SO2 NAA Guidance 
for the 2010 1-hour SO2 NAAQS,\55\ and the CDP suspends a 
state's obligation to submit most of the attainment planning 
requirements that would otherwise apply. The CDP also suspends the 
attainment demonstration and planning SIPs to provide for RFP,

[[Page 54990]]

RACM, and contingency measures under section 172(c)(9). Courts have 
upheld the EPA's interpretation of section 172(c)(1) for RACM and 
control technology as meaning only those controls that advance 
attainment, precluding the need to require additional measures where an 
area is already attaining.\56\
---------------------------------------------------------------------------

    \53\ See 57 FR 13498, 13564 (April 16, 1992).
    \54\ Id.
    \55\ EPA's Guidance for 1-Hour Sulfur Dioxide (SO2) 
Nonattainment Area State Implementation Plans (SIP) Submissions can 
be found at https://www.epa.gov/so2-pollution/guidance-1-hour-sulfur-dioxide-so2-nonattainment-area-state-implementation-plans-sip.
    \56\ See NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009); 
Sierra Club v. EPA, 294 F.3d 155, 162 (D.C .Cir. 2002); Sierra Club 
v. EPA, 314 F.3d 735, 744 (5th Cir. 2002); Sierra Club v. EPA, 375 
F.3d 537 (7th Cir. 2004); but see Sierra Club v. EPA, 793 F.3d 656 
(6th Cir. 2015).
---------------------------------------------------------------------------

    Therefore, because attainment has been reached in the Warren County 
SO2 NAA, no additional measures are needed to provide for 
attainment. Moreover, CAA section 172(c)(1) requirements for an 
attainment demonstration and RACM are not part of the ``applicable 
implementation plan'' required to have been approved prior to 
redesignation per CAA section 107(d)(3)(E)(ii). The other section 172 
requirements that are designed to help an area achieve attainment--
specifically, the section 172(c)(2) requirement that nonattainment 
plans contain provisions promoting reasonable further progress, the 
requirement to submit the section 172(c)(9) contingency measures, and 
the section 172(c)(6) requirement for the SIP to contain control 
measures necessary to provide for attainment of the NAAQS--are also not 
required to be approved as part of the ``applicable implementation 
plan'' for purposes of satisfying CAA section 107(d)(3)(E)(ii).
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate, and current inventory of actual emissions.
    New Jersey had met its obligation to satisfy the EI SIP 
requirements for the 1971 SO2 NAAQS through a previous SIP 
submittal to the EPA on June 11, 2015. As mentioned earlier in Section 
I., Background, NJDEP submitted a supplement on July 23, 2019, to the 
Warren County SO2 Clean Data Request providing clarification 
that New Jersey has met its obligation to satisfy the EI SIP 
requirements for the 1971 SO2 NAAQS through that previous 
SIP submittal to the EPA. The EPA approved the June 11, 2015, 
submission on September 21, 2017.\57\ The EPA approved inventory 
included annual SO2 emissions from the general source 
categories of point, area, on-road, and nonroad sources for Warren 
County, NJ in 2011.
---------------------------------------------------------------------------

    \57\ See EPA approval at 82 FR 44099 (September 21, 2017).
---------------------------------------------------------------------------

    As part of the maintenance plan submitted by New Jersey on November 
15, 2021, the State submitted an updated attainment year inventory 
based on the 2017 calendar year. The EPA's evaluation of the 2017 
emissions inventory for New Jersey's maintenance plan is discussed 
below in the EPA's evaluation of New Jersey's LMP.
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources to be 
allowed in an area, whereas CAA section 172(c)(5) requires source 
permits for the construction and operation of new and modified major 
stationary sources anywhere in the NAA.
    New Jersey made a SIP submission to satisfy the NNSR SIP 
requirements for the 1971 SO2 NAAQS through a previous SIP 
submittal to the EPA, dated February 19, 1993, which covered all 
nonattainment pollutants. As mentioned above, NJDEP submitted a 
supplement, on July 23, 2019, to its Warren County SO2 Clean 
Data Request to provide clarification that New Jersey has met its 
obligation to satisfy NNSR SIP requirements for the 1971 SO2 
NAAQS through that previous SIP submittal to the EPA.
    In EPA's action \58\ on the February 19, 1993, submittal, the EPA 
provided a limited approval of New Jersey's NSR Program. The EPA had 
determined that New Jersey's NSR regulation, Subchapter 18, ``Control 
and Prohibition of Air Pollution from New or Altered Sources Affecting 
Ambient Air Quality (Emission Offset Rules),'' lacked certain elements 
\59\ requiring correction before the regulation could be fully 
approved. The EPA finalized a limited approval because it strengthened 
the existing New Jersey SIP by incorporating CAA requirements, 
including new offset ratios, and new applicability thresholds.
---------------------------------------------------------------------------

    \58\ See EPA approval at 61 FR 38591 (July 25, 1996).
    \59\ For a list of deficiencies, see 61 FR 38592 (July 25, 
1996).
---------------------------------------------------------------------------

    Although New Jersey's NSR Program was not fully approved, the EPA 
has a longstanding interpretation that NNSR is replaced by PSD upon 
redesignation. Therefore, NAAs seeking redesignation to attainment need 
not have a fully approved part D NNSR program to be redesignated.\60\ 
New Jersey does not have its own promulgated regulations as part of the 
SIP for part C PSD rules. New Jersey is appropriately implementing the 
PSD program through the delegated federal PSD regulations at 40 CFR 
52.21. The program will become effective in the Warren County 
SO2 NAA upon redesignation to attainment.
---------------------------------------------------------------------------

    \60\ See memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation, dated October 14, 1994, entitled ``Part D New 
Source Review Requirements for Areas Requesting Redesignation to 
Attainment'' for a more detailed rationale for the described view.
---------------------------------------------------------------------------

    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached in the Warren County NAA, no additional control 
measures are needed.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As previously noted, the EPA believes 
the New Jersey SIP meets the requirements of section 110(a)(2) 
applicable for purposes of redesignation.
Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects that are developed, funded, or approved under 
title 23 of the United States Code (U.S.C.) and the Federal Transit Act 
(transportation conformity) as well as to all other federally supported 
or funded projects (general conformity). State transportation 
conformity SIP revisions must be consistent with federal conformity 
regulations relating to consultation, enforcement, and enforceability 
that the EPA promulgated pursuant to its authority under the CAA.
    The EPA interprets the conformity SIP requirements as not applying 
for purposes of evaluating a redesignation request under section 107(d) 
because, like the other requirements listed above, state conformity 
rules are still required after redesignation and federal conformity 
rules apply where state rules have not been approved.\61\
---------------------------------------------------------------------------

    \61\ See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding 
this interpretation); see also 60 FR 62748 (December 7, 1995) 
(redesignation of Tampa, Florida).
---------------------------------------------------------------------------

    For these reasons, the EPA proposes to find that New Jersey has 
satisfied all the applicable requirements for redesignation of the 
Warren County SO2 NAA under section 110 and part D of title 
I of the CAA.
B. The Warren County SO2 NAA Has a Fully Approved Applicable 
SIP Under Section 110(k) of the CAA
    The EPA has fully approved the applicable New Jersey SIP for the 
Warren County SO2 NAA under CAA section 110(k) for all 
applicable redesignation requirements. As previously indicated, the EPA 
believes that the section 110 elements that are

[[Page 54991]]

neither connected with nonattainment plan submissions nor linked to an 
area's nonattainment status are not applicable requirements for 
purposes of redesignation. The EPA has approved all part D requirements 
applicable under the 1971 SO2 NAAQS, as identified above, 
for purposes of this redesignation.

Criteria (3)--The Air Quality Improvement in the Warren County 
SO2 NAA Is Due to Permanent and Enforceable Reductions in 
Emissions

    For redesignating a nonattainment area to attainment, the CAA 
requires the EPA to determine that the air quality improvement in the 
area is due to permanent and enforceable reductions in emissions 
resulting from implementation of the SIP, applicable federal air 
pollution control regulations, and other permanent and enforceable 
reductions.\62\ The EPA proposes to find that the air quality 
improvement in the Warren County SO2 NAA is due to permanent 
and enforceable reductions in emissions.
---------------------------------------------------------------------------

    \62\ See CAA section 107(d)(3)(E)(iii).
---------------------------------------------------------------------------

    Martins Creek, and to a lesser extent Portland, which are in 
Northampton County, PA, have been identified as the primary cause of 
SO2 NAAQS violations in the Warren County NAA as determined 
by previous modeling. New Jersey's redesignation submission identifies 
the significant reductions in allowable SO2 emissions, that 
have occurred since the 1987 designation, from Martins Creek and 
Portland, as well as the smaller New Jersey sources located in the 
Warren County SO2 NAA.
    Martins Creek Coal-Fired Units 1 and 2 have been permanently shut 
down (since September 2007) and were dismantled one year later. The EPA 
considers the shutdown of the two Coal-Fired Units at Martins Creek to 
be both permanent and enforceable due to the units' dismantling. The 
EPA notes that the boiler building and stack that vent the sulfur 
dioxide emissions from Units 1 and 2 have been demolished, and 
physically removed from the site, making future operation of Units 1 
and 2 impossible. Thus, the emissions reductions from the nits that 
were primarily responsible for nonattainment are permanent.
    Additionally, Pennsylvania's Sulfur in Fuels regulation, 25 Pa. 
Code Chapter 123, section 123.22, is deemed permanent and enforceable 
because of EPA's approval \63\ of this provision into Pennsylvania's 
SIP. After July 1, 2016, all sources in Pennsylvania are limited to 
using fuel with the following sulfur content: the sulfur content of No. 
2 oil or lighter must be 0.05% or less; and the sulfur content of No. 
5, 6, or heavier oil must be 0.5% or less. Pennsylvania's regulation 
applies statewide and, had it been in effect at the time of the 1999 
study, would have reduced the impact of the Martins Creek auxiliary 
boiler and combustion turbines, which were modeled in the 1999 study 
based on burning No. 2 oil at 0.1 percent sulfur, and of the Martins 
Creek No. 6 Oil-Fired Units 3 and 4, which were modeled at a sulfur 
content of 1%. Similarly, Portland's combustion turbines would have had 
a reduced impact due to Pennsylvania's Sulfur in Fuels regulation since 
they were also modeled at 0.1% sulfur in the 1999 study.
---------------------------------------------------------------------------

    \63\ 79 FR 39330 (July 10, 2014).
---------------------------------------------------------------------------

    The EPA notes that the required shutdown of Martins Creek Coal-
Fired Units 1 and 2,\64\ and the limiting of Units 3 and 4 to 0.7% 
sulfur and limiting of the auxiliary boiler to firing natural gas were 
included in the October 2003 Settlement Agreement between NJDEP, PADEP, 
and Lower Mount Bethel Energy. Martins Creek joined in the settlement 
and was subject to the terms and conditions. The terms and conditions 
were legally binding to all parties.
---------------------------------------------------------------------------

    \64\ The agreement initially limed Units 1 and 2 to 3.3 lb/
MMBtu.
---------------------------------------------------------------------------

    The May 2013 Consent Decree, filed by NRG Energy (the owner of 
Portland), New Jersey, and Connecticut in the U.S. District Court for 
the Eastern District of PA,\65\ required the permanent shutdown of 
Portland Coal-Fired Units 1 and 2 by June 1, 2014. The Consent Decree 
established permanent and enforceable requirements for the shutdown of 
Units 1 and 2. Prior to their shutdown, the Units 1 and 2 were subject 
to interim and final limits established by the EPA in a final rule 
issued on November 7, 2011, in response to a petition filed by New 
Jersey under Section 126 of the CAA.\66\
---------------------------------------------------------------------------

    \65\ See Appendix 5 of New Jersey's November 15, 2021, 
Redesignation Request and Maintenance Plan SIP submittal; Civil 
Action No. 07-CV-5298 (JKG).
    \66\ 76 FR 69052 (November 7, 2011).
---------------------------------------------------------------------------

    New Jersey's Sulfur in Fuels regulation, N.J.A.C.7:27-9, is 
permanent and enforceable because of EPA's approval of this provision 
into New Jersey's SIP.\67\ After July 1, 2016, New Jersey's rule has 
limited No. 2 oil and lighter fuel in the State to no more than 0.0015 
percent sulfur content. Additionally, No. 4 fuel oil is limited to 
0.25% sulfur, and No. 6 oil cannot be more than 0.5% sulfur in Warren 
County, NJ. Although the New Jersey sources in Warren County (i.e., 
Roche Vitamins/DSM Nutritional and the WCRRF) minimally contributed as 
shown by the 1999 study, New Jersey's regulation would have further 
reduced the impact from the Roche Vitamins/DSM Nutritional combustion 
turbines, which were modeled in the 1999 study based on burning No. 2 
oil at 0.05% sulfur.
---------------------------------------------------------------------------

    \67\ EPA approval at 77 FR 19 (January 3, 2012).
---------------------------------------------------------------------------

    A review of the 1999 study, the permanent and enforceable 
reductions from shutdown and dismantling of the Martins Creek Coal-
Fired Units, and 25 PA Code Chapter 123.22 is sufficient to conclude 
that the 1971 SO2 NAAQS would have and will continue to be 
attained by a far greater margin than previously determined by the 1999 
study. The 1999 study showed that for the 3-hour, 24-hour, and annual 
1971 SO2 NAAQS attainment could be assured with only slight 
reductions in allowable emissions from the Martins Creek Coal-Fired 
Units (i.e., after reducing the emission rate 4.0 lb/MMBtu to 3.9 lb/
MMBtu), and combustion turbines (after reducing the emission rate based 
on a No. 2 fuel oil sulfur content of 0.1%, rather than 0.5%). As 
discussed previously, Martins Creek Coal-Fired Units 1 and 2 are no 
longer capable of operating (i.e., they were shut down and dismantled). 
Pennsylvania has since limited the burning of No. 2 at no more than 
0.05% sulfur, under 25 PA Code Chapter 123.22, and that requirement has 
been incorporated \68\ into Pennsylvania's SIP.
---------------------------------------------------------------------------

    \68\ 79 FR 39330 (July 10, 2014).
---------------------------------------------------------------------------

    The 1999 study also showed that Martins Creek Units 1 and 2 
contributed 865 [mu]g/m\3\ of a 1298 [mu]g/m\3\ total for the 3-hour 
SO2 impacts and 205 [mu]g/m\3\ of a 334 [mu]g/m\3\ total for 
the 24-hour SO2 impacts. For the annual SO2 
impacts, Martins Creek Units 1 and 2 contributed 6.2 [mu]g/m\3\ of a 71 
[mu]g/m\3\ total. Table 4 shows the cumulative SO2 impacts 
from all sources to be well below the 3-hour, 24-hour, and annual NAAQS 
after subtraction of the impacts from the Martins Creek Units 1 and 2 
due to their shutdown and dismantling. The EPA also considered more 
recent background data \69\ from the Columbia, NJ monitor from 2015 to 
2017.
---------------------------------------------------------------------------

    \69\ The updated background data was obtained from Table 5 from 
New Jersey's November 15, 2021, Redesignation Request and SIP 
submission.

[[Page 54992]]



                  Table 4--1999 Study Modeling Results With Martins Creek Units 1 and 2 Removed
----------------------------------------------------------------------------------------------------------------
               Facility                         3-hour                  24-hour                   Annual
----------------------------------------------------------------------------------------------------------------
Martins Creek:
    Units 1 and 2....................  Removed................  Removed................  Removed.
    Unit 3...........................  220.0 [mu]g/m\3\.......  53.1 [mu]g/m\3\........  1.1 [mu]g/m\3\.
    Unit 4...........................  201.0 [mu]g/m\3\.......  53.1 [mu]g/m\3\........  0.7 [mu]g/m\3\.
    Auxiliary Boiler 4...............  1.8 [mu]g/m\3\.........  NA \70\................  45.0 [mu]g/m\3\.
    Combustion Turbines..............  0.0 [mu]g/m\3\.........  8.2 [mu]g/m\3\.........  1.5 [mu]g/m\3\.
Portland.............................  0.0 [mu]g/m\3\.........  0.0 [mu]g/m\3\.........  3.7 [mu]g/m\3\.
Roche Vitamins/DSM Nutritional.......  0.0 [mu]g/m\3\.........  0.0 [mu]g/m\3\.........  0.2 [mu]g/m\3\.
WCRRF................................  0.0 [mu]g/m\3\.........  0.0 [mu]g/m\3\.........  0.04 [mu]g/m\3\.
Background \71\......................  15.3 [mu]g/m\3\........  5.4 [mu]g/m\3\.........  1.3 [mu]g/m\3\.
                                      --------------------------------------------------------------------------
    Total Concentration..............  438.1 [mu]g/m\3\.......  119.8 [mu]g/m\3\.......  53.5 [mu]g/m\3\.
----------------------------------------------------------------------------------------------------------------

    The total SO2 impact from all sources (after the 
subtraction of the impacts from the Martins Creek Units 1 and 2) would 
be approximately 438 [mu]g/m\3\ (3-hour), 120 [mu]g/m\3\ (24-hour), and 
54 [mu]g/m\3\ (annual), which are less than the respective NAAQS of 
1300 [mu]g/m\3\ (0.5ppm), 365 [mu]g/m\3\ (0.140 ppm) and 80 [mu]g/m\3\ 
(0.030 ppm). The values are also well below the respective air quality 
criteria for the 3-hour, 24-hour, and annual NAAQS of 85% for an LMP, 
of 1105 [mu]g/m\3\ (or 0.43 ppm), 310 [mu]g/m\3\ (or 0.119 ppm), and 68 
[mu]g/m\3\ (or 0.026 ppm).
---------------------------------------------------------------------------

    \70\ Not Available/Reported.
    \71\ Background data from Table 5 of NJ's Submittal.
---------------------------------------------------------------------------

    The EPA notes that New Jersey also calculated 2018 predicted 
impacts based on 2018 and 2000, allowable emission ratios \72\ and the 
more recent background data from the Columbia, NJ monitor from 2015 to 
2017. New Jersey's analysis predicts even further reduced impacts since 
the 1999 study due to allowable emission reductions from the previously 
described October 2003 Settlement Agreement; May 2013 Consent Decree; 
Pennsylvania and New Jersey SIP-approved Sulfur in Fuels regulations; 
and updates to Title V Operating Permits.
---------------------------------------------------------------------------

    \72\ To predict the air concentrations in 2018, the ratio of the 
2018 and 2000 allowable emissions are multiplied by the 1999 
modeling predicted impacts.
---------------------------------------------------------------------------

    The EPA believes that there is sufficient information to conclude 
that actual permanent and enforceable emission reductions, including 
the shutdown and dismantling of the Martins Creek Coal-Fired Units, and 
SIP-approved Sulfur in Fuels rules in Pennsylvania and New Jersey, are 
responsible for air quality improvement. Therefore, the EPA is 
proposing to find that the air quality improvement in the Warren County 
SO2 NAA is due to permanent and enforceable reductions in 
emissions.

Criteria (4)--The Warren County SO2 Nonattainment Area Has a 
Fully Approved Maintenance Plan Pursuant to Section 175A

    New Jersey submitted a LMP for the Warren County SO2 NAA 
required by the CAA. Our evaluation of the Warren County LMP is 
presented below.
A. Does the Warren County Nonattainment Area qualify for the limited 
maintenance plan option?
    The submission of an LMP, rather than a full maintenance plan, is 
an available option for states provided design values for the area are 
at or below 85% of the NAAQS. For the 3-hour, 24-hour, and annual 1971 
SO2 NAAQS, 85% of the NAAQS is equivalent to 1105 [mu]g/m\3\ 
(or 0.43 ppm), 310 [mu]g/m\3\ (or 0.119 ppm), and 68 [mu]g/m\3\ (or 
0.026 ppm), respectively. Under the LMP option, there is no requirement 
to project emissions over the maintenance period in the state's plan 
since there is a low probability of violating the standard in the 
future.
    To determine that the Warren County NAA is suitable for an LMP, the 
EPA reviewed updated air quality modeling and air monitoring from the 
nearby air monitors at Columbia, NJ, Chester, NJ, and Easton/
Freemansburg, PA, for 2017 to 2021. In the November 2021 redesignation 
request and maintenance plan submittal to the EPA, New Jersey provided 
SO2 design values for each of the most recent 5-years at the 
time (i.e., 2015 to 2019). The EPA also considered design values from 
2020 and 2021 as the more recent design values were subsequently 
available from AQS since the New Jersey submittal.
    The EPA relied primarily on the air quality modeling, rather than 
air monitoring, for the determination. This is because as previously 
noted, the air monitors were all located outside of the Warren County 
NAA and were not in the location of maximum impact based on previous 
modeling for the 1971 SO2 NAAQS. As noted above, the EPA 
believes that the air monitoring data from Columbia, NJ, Chester, NJ, 
and Easton/Freemansburg, PA, may have been indicative of recent air 
quality throughout the Warren County NAA. This interpretation is based 
on previous air modeling, which showed minimal impact from the smaller 
sources in the area. Additionally, in the EPA's evaluation of New 
Jersey's 126 petition for the 1-hour SO2 NAAQS, the EPA 
concluded that the numerous exceedances of the 2010 1-hour 
SO2 NAAQS recorded at the Columbia site were attributable to 
large SO2 emissions from Portland. The EPA's conclusion was 
based on the review of wind trajectory analysis that showed NAAQS 
exceedances when prevailing winds in the area came from the direction 
of Portland, and review of CEMs data for Portland.
    As shown previously in Table 3 and Table 4, the 85% criteria for 
the LMP option have been met by a wide margin both by monitoring, and 
modeling. For the monitoring the design values from Columbia, NJ, 
Chester, NJ, and Easton/Freemansburg, PA, from 2015 to 2021 were well 
below the air quality criteria of 85% for an LMP. In the EPA review of 
modeling results from the 1999 study, after the subtraction of the 
impacts from the Martins Creek Units 1 and 2 alone, the total 
SO2 impact from all sources were also well below the 
respective air quality criteria of 85% for an LMP.
    These modeling and monitoring values are below the 85% threshold. 
Therefore, the Warren County NAA is suitable for the LMP option.
B. Elements of a Limited Maintenance Plan for SO2
    The EPA considers the core provisions of the maintenance plan to 
include: an Attainment Emissions Inventory; a Maintenance 
Demonstration; a Monitoring Network; a Verification of Continued 
Attainment; and a Contingency Plan. Under the LMP

[[Page 54993]]

option, the Maintenance Demonstration is considered satisfied if the 
design values meet the air quality criteria of 85%, and there is no 
requirement to project emissions over the maintenance period in the 
state's plan.
    As discussed more fully in this section, the EPA proposes to find 
that New Jersey includes all the necessary components in their 
submitted maintenance plan and is thus proposed as a revision to the 
New Jersey SIP.
1. Attainment Emissions Inventory
    A state's plan should include an emissions inventory to identify 
the level of emissions that is sufficient to attain and maintain the 
NAAQS. The inventory should represent emissions during the same time 
associated with the modeling, or the air quality data, that demonstrate 
attainment of the standard, and the applicability requirements for the 
LMP (i.e., design values are at, or below, 85% of the 1971 
SO2 NAAQS).
    New Jersey selected 2017 as the attainment year for the Warren 
County NAA. New Jersey's submitted attainment year inventory included 
annual SO2 emissions from the general source categories of 
point, area, on-road, and nonroad sources for Warren County, NJ for 
2017. The emissions data was obtained from the EPA's 2017 National 
Emissions Inventory (NEI).
    The 2017 inventory is consistent with the updated SO2 
modeled impacts from the 1999 study and the air quality data, which 
were used to demonstrate attainment and LMP applicability requirements.
    The New Jersey emissions data reflects total SO2 
emissions for Warren County, rather than the specific townships within 
Warren County that were included in the Warren County NAA. New Jersey 
included historic emissions data since 1990, to show the declining 
trend in emissions since shortly after the designation in December 
1987. SO2 emissions decreased in Warren County by 
approximately 96% from 1990 to 2017 and about 92% from 2002 to 2017.

                                      Table 5--Warren County SO2 Emissions
----------------------------------------------------------------------------------------------------------------
                                                             Emissions (tons per year)
                                 -------------------------------------------------------------------------------
                                       1990            2002            2007            2011            2017
----------------------------------------------------------------------------------------------------------------
Point...........................             376             101              75              52              26
Area............................             832             345             330             259              13
Onroad Mobile...................             247             134              16              16              14
Nonroad Mobile..................              41              63              25               3               1
                                 -------------------------------------------------------------------------------
    Total SO2...................           1,496             643             446             330              54
----------------------------------------------------------------------------------------------------------------

    New Jersey provided a revision to the total SO2 
emissions and area source category for Warren County for 2017, in a 
technical correction submitted to the EPA on March 30, 2023. The total 
SO2 emissions change was small (i.e., 5 tons). Table 5 
includes the updated emissions provide by the State.
    New Jersey also provided the 2015 to 2017 SO2 emissions 
data for Martins Creek and Portland, in Pennsylvania, and for Roche 
Vitamins/DSM Nutritional and WCRRF, in the Warren County NAA. New 
Jersey also included historical emissions for those facilities since 
1990. The emissions are shown in Table 2, in Section I., Background. As 
previously noted, Martins Creek, which in 1990 emitted over 33,200 TPY 
of SO2, permanently shut down its coal-fired boilers by 
September 2007, and dismantled the Units one year later. The remaining 
oil-fired boilers are currently emitting an average of 49 TPY of 
SO2. Portland, which in 1990 emitted 25,400 TPY of 
SO2, shut down its Coal-Fired Units by May 2014, and is 
currently emitting less than 0.5 TPY of SO2. The total 
SO2 emissions from both Roche Vitamins/DSM Nutritional and 
the WCRRF are less than 5 TPY. In 2020, there were no other sources 
within the Warren County NAA emitting above 1 TPY SO2.
    The attainment inventory includes the emission reductions from the 
Martins Creek and Portland sources, which were primarily responsible 
for nonattainment, and the emission reductions from within Warren 
County. Additionally, the Martins Creek and Portland emission 
reductions have permanently reduced emissions. The EPA proposes to find 
that the attainment inventory provided by New Jersey is representative 
of the emission reductions that will attain and maintain the NAAQS and 
meet the LMP applicability criteria.
2. Demonstration of Maintenance
    The EPA considers the maintenance demonstration requirement 
satisfied if the air quality for the area meets the criteria for 
limited maintenance areas (i.e., design values are at or below 85% of 
the 1971 SO2 NAAQS). There is no requirement to project 
emissions over the maintenance period. Instead, EPA believes that if an 
area is at or below 85% of exceedance levels, the air quality along 
with the continued applicability of PSD requirements (and any permanent 
and enforceable control measures), should provide adequate assurance of 
maintenance over the 10-year maintenance period. As previously 
discussed, the modeling and air monitoring values are well below the 
85% threshold. Thus, an LMP option for the Warren County NAA is 
appropriate.
    When EPA approves an LMP, we conclude that an emissions budget may 
be treated as essentially not constraining for the length of the 
maintenance period because it is unreasonable to expect that such an 
area will experience enough growth in that period to cause a violation 
of the SO2 NAAQS.
3. Monitoring Network and Verification of Continued Attainment
    To verify the attainment status of the area over the maintenance 
period, the EPA generally requires a state to continue ambient air 
monitoring to meet the maintenance plan requirement for verification of 
continued attainment.
    New Jersey has indicated in their submission that through the 
ongoing review of the monitoring data from the nearby monitors at 
Chester and Columbia, New Jersey will verify compliance with the 
SO2 NAAQS throughout the maintenance period. New Jersey 
further notes that the State measures SO2 using real-time 
monitoring methods, which is posted hourly to its website \73\ and to 
USEPA's Air Now website.\74\ The State subsequently reviews and 
certifies the data, which is available from the EPA's

[[Page 54994]]

AQS website.\75\ These procedures allow for the continual review of 
SO2 measurements to verify compliance with the NAAQS in the 
Warren County NAA.
---------------------------------------------------------------------------

    \73\ https://www.njaqinow.net.
    \74\ https://www.airnow.gov.
    \75\ https://www.epa.gov/aqs.
---------------------------------------------------------------------------

    Additionally, New Jersey will verify continued maintenance by 
tracking and limiting SO2 emissions through (1) federal and 
state air permitting and enforcement programs from any existing and 
future sources in the area, including the federal PSD program, which 
was delegated to New Jersey; (2) operating permitting programs for 
major and minor sources; and (3) the State's sulfur in fuels 
regulation.
    New Jersey's verification measures for operating the Chester and 
Columbia monitors, along with the tracking and limiting of emissions, 
will ensure that SO2 emissions remain low and provide 
assurance of continued maintenance in Warren County. Therefore, the EPA 
proposes to find that the monitoring network and verification of 
continued attainment provisions of the maintenance have been satisfied.
4. Contingency Plan
    Section 175A of the CAA requires that a maintenance plan include 
such contingency measures as the EPA deems necessary to assure that the 
state will promptly correct a violation of the NAAQS that occurs after 
redesignation. The maintenance plan should identify the contingency 
measures to be adopted, a schedule and procedure for adoption and 
implementation, and a time limit for action by the state. A state 
should also identify specific indicators to be used to determine when 
the contingency measures need to be implemented. The maintenance plan 
must also include a requirement that a state will implement all 
measures with respect to control of the pollutant that were contained 
in the SIP before redesignation of the area to attainment in accordance 
with section 175A(d).
    New Jersey's contingency plan focuses on ensuring that new sources 
or modifications of existing permitted sources through existing federal 
and state air permitting and enforcement programs, to assure that any 
violations of the NAAQS will not occur during the maintenance period.
    Through its delegated PSD Program,\76\ New Jersey will evaluate the 
impact of any new or modified SO2 source in the former NAA 
to assure there are no new violations of the 1971 SO2 NAAQS. 
Pursuant to the PSD rules, a new or modified source subject to the rule 
must obtain a preconstruction permit and demonstrate compliance. The 
PSD rules require that the applicant install Best Available Control 
Technology (BACT), conduct an air impact analysis to verify compliance 
with the NAAQS and PSD increments, and review the impact of the new or 
modified source on Class I areas and on soil, vegetation, and 
visibility.
---------------------------------------------------------------------------

    \76\ New Jersey has delegated authority to implement PSD program 
provisions at 40 CFR 52.21.
---------------------------------------------------------------------------

    Other new and modified sources in the area would be regulated under 
New Jersey's enforcement and permitting program, specifically, N.J.A.C. 
7:27-8 (Permits and Certificates for Minor Facilities [and Major 
Facilities without an Operating Permit]) and N.J.A.C. 7:27-22 
(Operating Permits), which require newly constructed, reconstructed, or 
modified equipment and control apparatus to incorporate State of the 
Art (SOTA) in air pollution controls. SOTA control requirements are 
developed for the kind and amount of air contaminant emitted by an 
applicant's equipment or control apparatus. N.J.A.C. 7:27-8 has been 
approved into New Jersey's SIP.
    Additionally, N.J.A.C. 7:27-18 (Control and Prohibition of Air 
Pollution from New or Altered Sources Affecting Ambient Air Quality 
(Emission Offset Rule)) requires any new, reconstructed, or modified 
air pollutant source, not subject to PSD, to reduce emissions if it has 
a predicted SO2 NAAQS violation (or obtain sufficient 
emission offsets to eliminate the NAAQS violation). N.J.A.C. 7:27-18 
has been approved into New Jersey's SIP by EPA.
    New Jersey does not have jurisdiction over new or modified sources 
in Pennsylvania that may cause an exceedance of the NAAQS in New 
Jersey. However, New Jersey notes that Pennsylvania's PSD program in 25 
PA Code Chapter 127.81 through 83 will regulate proposed new major 
sources and major modifications in Pennsylvania. Pennsylvania's 
authority in 25 PA Code Chapter 127 (Construction, Modification, 
Reactivation and Operation of Sources) will control minor sources in 
the area. Both Pennsylvania programs have been approved into 
Pennsylvania's SIP and require that an air impact analysis be 
conducted. Therefore, these programs should also ensure that the 
emissions from Pennsylvania sources will not cause or interfere with 
attainment or maintenance of the SO2 NAAQS in Warren County.
    With the shutdown and dismantling of the Coal-Fired Units at 
Martins Creek (which were the primary cause of the nonattainment 
designation and modeled violations of the 1971 SO2 NAAQS), 
and the available evidence from previous modeling and monitoring that 
indicated attainment has been met by a wide margin, the EPA proposes to 
conclude that the State's contingency plan appropriately focuses on new 
sources or modifications of existing permitted sources to ensure 
maintenance of the NAAQS. Due to the total removal of the Coal-Fired 
Units at Martins Creek, the source of the modeled SO2 
violation has been eliminated. Both the New Jersey and Pennsylvania 
programs require an air impact analysis, which should ensure that the 
emissions from other sources will not cause or interfere with 
attainment or maintenance of the SO2 NAAQS in Warren County. 
Additionally, New Jersey's and Pennsylvania's existing sulfur in fuels 
regulations,\77\ which are both SIP-approved, continue to be 
implemented, and provide additional assurance that the SO2 
NAAQS will continue to be maintained in Warren County. We are therefore 
proposing to conclude that New Jersey's LMP addresses the ``contingency 
plan'' requirement of CAA section 175A.
---------------------------------------------------------------------------

    \77\ See N.J.A.C.7:27-9; and 25 Pa. Code Chapter 123, section 
123.22.
---------------------------------------------------------------------------

IV. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address the 
``disproportionately high and adverse human health or environmental 
effects'' which can impact minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    NJDEP provided a supplement to its SIP submission on March 16, 
2023, which describes New Jersey's programs and initiatives addressing 
the needs of communities with EJ concerns. Although New Jersey included 
an EJ

[[Page 54995]]

evaluation as part of its SIP submittal, the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation.
    New Jersey's Environmental Justice Law \78\ was enacted on 
September 18, 2020. NJDEP's submittal explained that the EJ Law 
requires the NJDEP to evaluate the environmental and public health 
impacts of certain facilities on overburdened communities when 
reviewing certain permit applications and to adopt regulations to 
implement the provisions of the Act. For certain facility types, the 
law requires an Environmental Impact Assessment to be prepared by the 
applicant. In addition, NJDEP explained that the EJ Law requires 
facilities to hold their own public hearing prior to, and independent 
of, any hearing required by other regulations.
---------------------------------------------------------------------------

    \78\ N.J.S.A. 13:1D-1 et seq.
---------------------------------------------------------------------------

    NJDEP indicated that they had proposed Environmental Justice Rules 
on June 6, 2022 \79\ which, once adopted, would clarify the criteria 
used to designate a neighborhood as an area with EJ concerns, provide 
more specifics on the facilities covered, and outline additional 
requirements that would be imposed on such facilities operating within 
areas with EJ concerns. The State subsequently adopted the rules on 
March 9, 2023.\80\
---------------------------------------------------------------------------

    \79\ N.J.A.C. 7:1C.
    \80\ https://dep.nj.gov/wp-content/uploads/rules/adoptions/adopt-20230417a.pdf.
---------------------------------------------------------------------------

    NJDEP's Administrative Order (AO) 2021-25 provides guidance to 
facilities located or seeking to be located in overburdened 
communities. AO 2021-25 includes provisions for community engagement, 
assessment of facility impacts to environmental and public health 
stressors, and the implementation of appropriate measures to avoid or 
minimize adverse impacts.
    NJDEP also created the ``What's In My Community'' tool, a GIS-
mapping web application that allows a user to see the air permits 
issued in their community. The tool also identifies the overburdened 
communities, schools, hospitals, and emergency services (Police and 
Fire Departments). Public users can also see measurements from air 
monitors.
    The EPA performed an EJ analysis for the 1971 SO2 NAA in 
Warren County using Version 2.11 of the EPA's Environmental Justice 
Screening and Mapping Tool (EJ Screen). The analysis was done for the 
purpose of providing additional context and information about this 
rulemaking to the public and not as a basis for the action. In 
addition, there is no information in the record, upon which this 
decision is based, that is inconsistent with the stated goal of 
Executive Order 12898-achieving EJ for people of color, low-income 
populations, and Indigenous peoples.
    The EPA reviewed demographic data, which provides an assessment of 
individual demographic groups for the population living within Warren 
County, NJ. The EPA then compared the data to the national average for 
each of the demographic groups. The results of the demographic analysis 
indicate that Warren County has a lower proportion of people of color 
and low-income populations compared to the national average. 
Socioeconomic indicators such as percentage of people of color and low 
income were all at levels below the national averages.
    At the time of this rulemaking, EPA's EJ analysis showed the 
percentage of the demographic index (percent people of color and the 
average percent low-income) for the NAA was lower than the national 
average (16% versus 35%). The percentage of people of color (persons 
who reported their race as a category other than White alone (not 
Hispanic or Latino)) was significantly lower than the national average 
(16% versus 40%). The low-income percentage for the NAA was lower than 
the national average (17% versus 30%). Additionally, the supplemental 
demographic index (which includes the percentages for low life 
expectancy, low-income, unemployment, limited English speaking, and 
less than high school education) was lower than the national average 
(i.e., 10% versus 15%).\81\
---------------------------------------------------------------------------

    \81\ See EJ Screen analyses provided in the docket for this 
action.
---------------------------------------------------------------------------

    Furthermore, the EPA acknowledges that communities near and/or 
downwind of industrial sources may be subject to disproportionate 
environmental impacts of SO2 emissions. However, due to the 
shutdown and dismantling of the Coal-Fired Units at Martins Creek, and 
the State's contingency measures, which focus on new sources or 
modifications of existing permitted sources, there is no indication 
that the Warren County NAA will have a problem maintaining the 1971 
SO2 NAAQS.
    We therefore conclude that this proposed rule will not have or lead 
to disproportionately high or adverse human health or environmental 
effects on communities with EJ concerns.

V. Proposed Action

    The EPA is proposing to approve New Jersey's request to redesignate 
the Warren County NAA to attainment for the 3-hour, 24-hour, and annual 
1971 SO2 NAAQS, based on the demonstrated compliance with 
the requirements of the redesignation criteria provided under CAA 
section 107(d)(3)(E). Final approval of this redesignation request 
would change the designation of the Warren County NAA from 
nonattainment to attainment. The EPA is also proposing to approve the 
maintenance plan as a revision to the New Jersey SIP.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with CAA provisions and applicable federal 
regulations.\82\ Thus, in reviewing SIP submissions, the EPA's role is 
to approve state choices, if they meet CAA criteria. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
---------------------------------------------------------------------------

    \82\ 42 U.S.C. 7410(k); 40 CFR 52.02(a).
---------------------------------------------------------------------------

     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not proposing to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of

[[Page 54996]]

Indian country, the rule does not have tribal implications and it will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    NJDEP evaluated EJ considerations as part of its SIP submittal even 
though the CAA and applicable implementing regulations neither prohibit 
nor require an evaluation. EPA's evaluation of the NJDEP's 
environmental justice considerations is described above in the section 
titled, ``Environmental Justice Considerations.'' The analysis was done 
for the purpose of providing additional context and information about 
this rulemaking to the public, not as a basis of the action. EPA is 
taking action under the CAA on reasoning independent of the NJDEP's 
evaluation of environmental justice. Due to the nature of this action, 
it is expected to have a neutral to positive impact on the air quality 
of the affected area.

List of Subjects in 40 CFR Part 52

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

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

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2023-16649 Filed 8-11-23; 8:45 am]
BILLING CODE 6560-50-P


