[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Proposed Rules]
[Pages 24090-24092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07529]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R2-OAR-2021-0912; FRL-9613-01-R2]


Approval of Air Quality Implementation Plans; New Jersey; Removal 
of Excess Emissions Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
State of New Jersey, through the New Jersey Department of Environmental 
Protection, on December 14, 2017. The revision submitted by New Jersey 
was in response to a finding of substantial inadequacy and a SIP call 
published on June 12, 2015, for a provision in the New Jersey SIP 
related to excess emissions during startup, shutdown, and malfunction 
(SSM) events. EPA is proposing approval of the SIP revision and 
proposing to determine that such SIP revision corrects the deficiency 
identified in the June 12, 2015, SIP call.

DATES: Comments must be received on or before May 23, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2021-0912 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. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
regulations.gov. EPA may publish any comment received to its public 
docket. Do not electronically submit any information you consider to be 
Confidential Business Information (CBI) or other information, the 
disclosure of which 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. 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: Edward J. Linky, EPA Region 2, 290 
Broadway, 25th floor, New York, New York 10007-1866, at 212-637-3764; 
or email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used, it refers to EPA.

Table of Contents

I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    On February 22, 2013, EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the Clean Air Act (CAA) with regard to excess emission events.\1\ For 
each SIP provision that EPA determined to be inconsistent with the CAA, 
EPA proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of EPA to create affirmative 
defense provisions applicable to private civil suits. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP

[[Page 24091]]

provisions and proposed SIP calls for those provisions where 
appropriate (79 FR 55920, September 17, 2014).
---------------------------------------------------------------------------

    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
---------------------------------------------------------------------------

    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016. The detailed rationale for issuing the SIP 
call to New Jersey can be found in the 2015 SSM SIP Action and 
preceding proposed actions.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to New Jersey in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
---------------------------------------------------------------------------

    \2\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
---------------------------------------------------------------------------

    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\4\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
agency takes action on SIP submissions, including this SIP submittal 
provided in response to the 2015 SIP call.
---------------------------------------------------------------------------

    \3\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ 80 FR 33840, June 12, 2015.
---------------------------------------------------------------------------

    With regard to the New Jersey SIP, in the 2015 SSM SIP Action EPA 
determined that N.J. Admin. Code 7:27-7.2(k)(2) was substantially 
inadequate to meet CAA requirements (80 FR 33960). The provision 
provided industrial process units that have the potential to emit 
sulfur compounds an exemption from the otherwise applicable sulfur 
emission limitations where ``the discharge from any stack or chimney 
[has] the sole function of relieving pressure of gas, vapor or liquid 
under abnormal emergency conditions'' (N.J. Admin. Code 7:27-
7.2(k)(2)). The rationale underlying EPA's determination that the 
provision was substantially inadequate to meet CAA requirements, and 
therefore to issue a SIP call to New Jersey to remedy the provision, is 
detailed in the 2015 SSM SIP Action and the accompanying proposals.
    New Jersey submitted a SIP revision on December 14, 2017, in 
response to the SIP call issued in the 2015 SSM SIP Action. In its 
submission, New Jersey is requesting that EPA approve a revised N.J. 
Admin. Code 7:27-7.2(k), which deletes N.J. Admin. Code 7:27-7.2(k)(2) 
in its entirety, thereby removing the provision for which EPA issued a 
SIP call in 2015 from the New Jersey SIP. The December 14, 2017, SIP 
submittal also includes proposed revisions to other portions of the New 
Jersey SIP which will be addressed in a separate rulemaking action.

II. Analysis of SIP Submission

    EPA is proposing to approve New Jersey's December 14, 2017, SIP 
submission with respect to N.J. Admin. Code 7:27-7.2(k), which would 
remove the SIP called provision, N.J. Admin. Code 7:27-7.2(k)(2), from 
the New Jersey SIP. EPA proposes to find that New Jersey's December 14, 
2017, SIP submittal is consistent with CAA requirements and adequately 
addresses the specific deficiencies that EPA identified in the 2015 SSM 
SIP Action with respect to the New Jersey SIP.

III. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is 
proposing to approve New Jersey's December 14, 2017 SIP submission 
requesting that EPA approve into the SIP a revised N.J. Admin. Code 
7:27-7.2(k), which removes N.J. Admin. Code 7:27-7.2(k)(2) from the New 
Jersey SIP. EPA is proposing approval of the SIP revision because we 
have determined that it is consistent with the requirements for SIP 
provisions under the CAA. EPA is further proposing to determine that 
such SIP revision corrects the deficiency identified in the June 12, 
2015 SIP call. EPA is not reopening the 2015 SSM SIP Action and is only 
taking comment on whether this proposed SIP revision is consistent with 
CAA requirements.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference revisions to portions of Title 7, Chapter 27, Subchapter 7 of 
the New Jersey Administrative Code as discussed in section II of this 
preamble. EPA has made, and will continue to make, these documents 
generally available through https://www.regulations.gov and at EPA 
Region 2 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).

[[Page 24092]]

Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this proposed action merely approves removal of State law not meeting 
Federal requirements and does not impose additional requirements beyond 
those already imposed by State law. For that reason, this proposed 
action:
     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 13563 (76 FR 3821, January 21, 
2011);
     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 an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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 CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The New Jersey SIP does not apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, this 
rulemaking does not have tribal implications as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000), nor will it impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2022-07529 Filed 4-21-22; 8:45 am]
BILLING CODE 6560-50-P


