Approval and Promulgation of Implementation Plans; New Jersey Ozone State Implementation Plan Revision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 128, NJ-13-1-6104a; FRL-5051-3]

Approval and Promulgation of Implementation Plans; New Jersey

Ozone State Implementation Plan Revision

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a

revision to the New Jersey State Implementation Plan for ozone related

to development of reasonably available control technologies for all

source categories of volatile organic compounds for which EPA has

issued a control techniques guideline document. This revision has been

submitted in response to requirements to control ozone established in

the Clean Air Act. New Jersey's submittals contained additional

revisions, which EPA will be acting on in separate Federal Register

actions.

DATES: This final rule is effective on November 28, 1994 unless adverse

or critical comments are received by October 27, 1994. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: All comments should be addressed to: William J. Muszynski,

Deputy Regional Administrator, Environmental Protection Agency, Region

II Office, 26 Federal Plaza, New York, New York 10278.

Copies of the State submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Library, 26 Federal

Plaza, room 402, New York, New York 10278.

New Jersey Department of Environmental Protection, Bureau of Air

Quality Planning, 401 East State Street, CN027, Trenton, New Jersey

08625.

FOR FURTHER INFORMATION CONTACT: Raymond Werner, Chief, State

Implementation Plan Section, Air Programs Branch, Environmental

Protection Agency, 26 Federal Plaza, room 1034A, New York, New York

10278, (212) 264-2517.

SUPPLEMENTARY INFORMATION:

Background

The Clean Air Act (Act) sets forth a number of requirements that

states with areas designated as nonattainment for ozone had to satisfy

by November 15, 1992.

New Jersey must address a number of requirements of the Act

including the requirements:

To adopt Reasonably Available Control Techniques (RACT)

regulations for all source types for which the Environmental

Protection Agency (EPA) has developed Control Techniques Guidelines

(CTGs);

To adopt RACT regulations for all other major sources of

volatile organic compounds (VOCs);

To adopt RACT regulations for all major sources of oxides

of nitrogen (NOx);

To develop and adopt an enhanced inspection and maintenance

program;

To develop and adopt measures to offset emission increases

due to increases in vehicle miles travelled (VMT) or in the number

of vehicle trips;

To adopt an emission statement program;

To revise its new source review program to meet the new

requirements of the Act;

To develop and adopt an Employer Trip Reduction program;

To develop an emission inventory; and

To develop and adopt a small business assistance program.

These measures are intended to reduce emissions of VOCs and NOx.

VOCs and NOx are precursors of ozone in the lower atmosphere, which is

a primary component of smog. A more detailed summary of these

requirements, including the relevant statutory provisions can be found

in the General Preamble to title I of the Act (57 FR 13498, April 16,

1992).

The specific requirements that New Jersey must meet vary by area,

depending upon the severity of the ozone problem. Eighteen of the

twenty one counties in New Jersey are designated as severe

nonattainment for ozone. Of the remaining three counties, Atlantic and

Cape May Counties are designated as moderate nonattainment for ozone

and Warren County is designated as marginal nonattainment for ozone. In

addition, section 184(a) of the Act recognizes that ozone is a regional

problem by designating all of New Jersey as part of an ozone transport

region. Since most of New Jersey is designated as severe nonattainment

for ozone, and all of New Jersey is part of an ozone transport region,

New Jersey has chosen to implement statewide all of the control

requirements that are addressed in this action.

State Submittal

On November 15, 1992, New Jersey submitted to EPA a request to

revise its SIP for ozone. This submittal had undergone public hearings

on October 27, October 29 and November 5, 1992. While New Jersey did

address additional requirements in its November 15, 1992 submittal, the

only requirement that EPA is addressing in this action is the

requirement to adopt RACT regulations for all source types for which

EPA has developed CTGs. EPA will take action on the other submittals

that New Jersey made in other Federal Register actions.

Section 110(k) of the Clean Air Act requires EPA to determine if a

state's SIP submittal is complete within sixty days of submittal but

not later than six months later than that date. If EPA does not notify

a state of the completeness of a submittal within six months of receipt

it is automatically deemed complete. The criteria that EPA uses to

determine completeness are set forth in 40 CFR part 51, appendix V. On

April 20, 1993, EPA sent New Jersey a letter informing it that its

November 15, 1992 submittal was not complete because it did not contain

a compilation of the public comments and the State's responses to those

comments. On May 14, 1993, New Jersey submitted a compilation of public

comments and the State's responses to these comments. These public

comments did not result in any substantive changes to New Jersey's

submittal. Most of the comments involved portions of the SIP which New

Jersey is still developing and will be better addressed as part of

those SIP submittals. On June 10, 1993, EPA wrote to New Jersey and

informed them that EPA had reviewed its May 14, 1993 submittal and was

finding New Jersey's submittal complete insofar as it contained adopted

RACT regulations for all source types for which EPA has developed CTGs.

The following summarizes EPA's evaluation of New Jersey's submittal.

The Act sets forth two separate provisions requiring states to

promulgate VOC RACT rules in ozone nonattainment areas. RACT is defined

as the lowest emission that a particular source is capable of meeting

with the application of control technology that is reasonably available

considering technological and economic feasibility.

The first provision, referred to as RACT fix-up, requires the

correction of RACT rules for which EPA identified deficiencies before

the Act was amended in 1990. Under the pre-amended Clean Air Act, ozone

nonattainment areas were required to adopt RACT rules for sources of

VOC emissions. EPA issued three sets of CTG documents, establishing a

``presumptive norm'' for RACT for various categories of VOC sources.

The three sets of CTGs were (1) Group I--issued before January 1978 (15

CTGs); (2) Group II--issued in 1978 (9 CTGs); and (3) Group III--issued

in the early 1980's (5 CTGs). Those sources not covered by a CTG were

called non-CTG sources. Under section 172(a)(1), ozone nonattainment

areas were generally required to attain the ozone standard by December

31, 1982. Those areas that submitted an attainment demonstration

projecting attainment by that date were required to adopt RACT for

sources covered by the Group I and II CTGs. Areas, such as New Jersey,

that sought an extension of the attainment date under section 172(a)(2)

to as late as December 31, 1987 were required to adopt RACT for all CTG

sources and for all major (i.e., 100 ton per year or more of VOC

emissions) non-CTG sources.

In the mid and late 1980's, EPA issued SIP Calls, notifying

numerous states that they contained nonattainment areas that had failed

to attain the ozone standard. In the SIP Calls, EPA required states to

correct deficiencies in their existing RACT rules and to adopt rules

that were required but not yet adopted. Under the amended Act, section

182(a)(2)(A) requires states to correct these RACT rules by May 15,

1991. New Jersey submitted its RACT fix-up rules to EPA on March 13,

1992, which EPA approved on April 15, 1994 (59 FR 17933). Thus New

Jersey has met the RACT fix up requirement and no further action needs

to be taken with respect to this requirement in today's action.

The second provision, set forth in section 182(b)(2) applies to

moderate (and above) ozone nonattainment areas. The goal of this

provision is to ensure that areas, that were not required previously to

adopt RACT for some or all of the CTGs or for major stationary sources

not covered by a CTG, adopt rules and ``catch-up'' to those areas

previously subject to more stringent RACT requirements. In addition,

the RACT catch-up provision requires those areas for which the major

source definition has been lowered to adopt RACT for those sources now

covered by the more stringent major stationary source definition.

Section 182(b)(2) sets forth three requirements for the purpose of

achieving those goals. First 182(b)(2) requires states to adopt RACT

for sources subject to pre-enactment CTGs. Next, this provision

requires states to adopt RACT for all sources subject to any new CTGs

issued after enactment of the Amendments. Finally, section 182(b)(2)

requires RACT for all major stationary sources not subject to a CTG.

Section 182(b)(2) requires these rules to be submitted to EPA by

November 15, 1992. Moreover, under section 185, all areas in the Ozone

Transport Region, which includes all of New Jersey are subject to this

requirement.

New Jersey has met the RACT requirement as it applies to sources

for which there was a pre-enactment CTG. New Jersey has adopted rules

for all but three of the pre-enactment CTGs and incorporated them into

Subchapter 16, ``Control and Prohibition of Air Pollutants by Volatile

Organic Compounds.'' The three CTG source categories for which New

Jersey has not incorporated specific control requirements into

Subchapter 16 are: rubber tire manufacturing; high density

polyethylene, polypropylene and polystyrene resin manufacturing and air

oxidation processes in synthetic organic chemical manufacturing

industry facilities. In its 1982 SIP for the Attainment and Maintenance

of the Ozone and Carbon Monoxide National Ambient Air Quality

Standards, New Jersey declared that it had no rubber tire manufacturing

facilities. EPA approved this declaration on November 9, 1983. New

Jersey reaffirmed this declaration in its November 15, 1992 submittal.

New Jersey submitted on March 31, 1987, and supplemented on May 4,

1991, an equivalency demonstration which showed that high density

polyethylene, polypropylene and polystyrene resin processes would be

regulated under general provisions contained in both Subchapter 8 and

Subchapter 16. An equivalency demonstration must show that the state

rules applicable to the source category result in emissions within five

percent of the emissions that would result from the control

requirements recommended by the CTG. EPA approved this demonstration on

October 9, 1991. On November 21, 1989, New Jersey submitted an

equivalency demonstration showing that air oxidation processes at

synthetic organic chemical manufacturing industry facilities would be

regulated under general provisions contained in both Subchapter 8 and

Subchapter 16. This submittal was supplemented on May 10, 1991. EPA

approved this demonstration on September 24, 1991. EPA is approving New

Jersey's reaffirmation that there are no rubber tire manufacturing

sources in New Jersey. As a result of EPA's approval of New Jersey's

negative declaration and of New Jersey's equivalency demonstrations,

EPA finds that New Jersey has fully approved rules for all pre-

enactment CTGs.

As to the requirement for adopting RACT for sources subject to a

post-enactment CTG, New Jersey has followed the process set forth by

EPA in its CTG document issued as appendix B to the General Preamble.

In appendix B, EPA provided that states could delay submission of non-

CTG rules for those sources the state anticipates will be covered by

one of EPA's 11 proposed post-enactment CTGs. Section 183(a) requires

EPA to issue these 11 CTGs by November 15, 1993. Pursuant to the

procedure established in appendix B, New Jersey is required to adopt

regulations in accordance with a CTG issued by November 15, 1993, in

accordance with the schedule set forth by EPA. In the alternative, for

source categories for which a CTG is not issued by that date, the State

will adopt RACT for those source categories by November 15, 1994.

Appendix B also requires states to submit a list of sources that it

anticipates will be covered by such a CTG. As part of its November 15,

1992 submittal, New Jersey submitted a list of sources that it

anticipates will be covered by such a CTG. New Jersey also indicated

that it intends to adopt RACT regulations for all of those sources by

the required date.

On November 15, 1993, EPA published a CTG for reactor processes and

distillation operations in the synthetic organic chemical manufacturing

industry. On March 23, 1994, in 56 FR 13717, EPA published an addendum

to that CTG. In that addendum EPA explained that states are required to

adopt RACT rules for this CTG category by March 23, 1995 and that

sources must be in compliance with these rules no later than November

15, 1996. EPA did not publish any additional CTGs by the November 15,

1993 deadline. Therefore, in order to meet the appendix B requirement,

New Jersey must adopt RACT rules for reactor processes and distillation

operations in the synthetic organic chemical manufacturing industry by

March 23, 1995. In addition, New Jersey must adopt RACT rules for all

major sources which would be subject to other post-enactment CTG

categories by November 15, 1994.

Finally, New Jersey was required to submit by November 15, 1992,

non-CTG RACT rules for all major sources not covered by a pre-enactment

CTG and not anticipated to be covered by a post-enactment CTG. New

Jersey failed to submit such regulations on the required date and on

January 15, 1993, EPA notified the Governor of New Jersey that it was

starting the 18-month sanction process required by section 179(a) of

the Act. On November 15, 1993, New Jersey made submittals intending to

meet this requirement. EPA determined that this submittal was complete

on December 29, 1993. This determination stopped the sanction process.

EPA will be taking action on this state submittal in a separate Federal

Register action.

Summary

In this rulemaking, EPA is approving New Jersey's reaffirmation

that there are no major sources of rubber tire manufacturing in New

Jersey. In addition EPA finds that this reaffirmation along with New

Jersey's previously approved regulations and demonstrations fulfills

the section 182(b)(2) RACT catch-up requirements to adopt RACT

requirements for all sources for which EPA issued a CTG before the 1990

amendments to the Act.

Nothing in this rule should be construed as permitting or allowing

or establishing a precedent for any future request for revision to any

SIP. Each request for revision to any SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

EPA is publishing this rule without prior proposal because EPA

views this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, the EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. Thus, this direct final action

will be effective November 28, 1994 unless, by October 27, 1994,

adverse or critical comments are received.

If the EPA receives such comments, this rule will be withdrawn

before the effective date by publishing a subsequent notice that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this rule should

do so at this time. If no adverse comments are received, the public is

advised that this rule will be effective November 28, 1994. (See 47 FR

27073 and 59 FR 24059).

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moveover, due to the nature of the Federal-state relationship

under the Clean Air Act, preparation of a regulatory flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v

USEPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

This rule has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

Under section 307(b)(l) of the Act, petitions for judicial review

of this rule must be filed in the United States Court of Appeals for

the appropriate circuit within 60 days from date of publication. Filing

a petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed and shall not postpone the effectiveness of such

rule or action. This rule may not be challenged later in proceedings to

enforce its requirements. (See 307(b)(2)).

List of Subjects in 40 CFR Part 52

Air pollution control, Hydrocarbons, Ozone, Reporting and

recordkeeping requirements, Volatile organic compounds.

Dated: July 26, 1994.

William J. Muszynski, P.E.,

Deputy Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart FF--New Jersey

2. Section 52.1582 is amended by adding new paragraph (c) to read

as follows:

Sec. 52.1582 Control strategy and regulations: Ozone (volatile organic

substances) and carbon monoxide.

* * * * *

(c) The November 15, 1993 SIP revision submitted by the New Jersey

Department of Environmental Protection and Energy demonstrates the

fulfillment of section 182(b)(2)(B) of the Clean Air Act for states to

adopt RACT regulations for all sources for which EPA has issued a CTG

before enactment of the 1990 Clean Air Act.

[FR Doc. 94-23695 Filed 9-26-94; 8:45 am]

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