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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 124, NJ9-1-6185; FRL-4858-7]

Approval and Promulgation of Implementation Plans; Revision to

the New Jersey State Implementation Plan for Ozone

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

request by New Jersey to revise its State Implementation Plan (SIP) as

it relates to the control of volatile organic compounds. Under the

Clean Air Act as amended in 1990, EPA is approving Subchapter 16

``Control and Prohibition of Air Pollution by Volatile Organic

Compounds,'' Subchapter 8 ``Permits and Certificates, Hearings, and

Confidentiality,'' Subchapter 17 ``Control and Prohibition of Air

Pollution by Toxic Substances,'' Subchapter 23 ``Prevention of Air

Pollution by Architectural Coatings and Consumer Products,'' Subchapter

25 ``Control and Prohibition of Air Pollution from Vehicular Fuels,''

and Subchapter 3 ``Air Test Method 3: Sampling and Analytic Procedures

for the Determination of Volatile Organic Compounds from Source

Operations.''

New Jersey was required to make corrections to these regulations

pursuant to an EPA call for a revised SIP on May 26, 1988, and pursuant

to section 182(a)(2)(A) of the Clean Air Act. EPA finds that New

Jersey's SIP revision satisfies four outstanding commitments made in

its 1983 ozone SIP. These include the adoption of provisions regulating

automobile refinishing, further industrial controls, and applying

reasonably available control technology to small surface coating and

industrial sources. New Jersey's SIP revision also regulates all of the

Group III Control Techniques Guidelines source categories required by

the Clean Air Act.

EFFECTIVE DATE: This final rule will be effective May 16, 1994.

ADDRESSES: Copies of the State submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

26 Federal Plaza, room 1034A, New York, New York 10278.

Environmental Protection Agency, Air Docket 6102, 401 M Street SW.,

Washington, DC 20460.

New Jersey Department of Environmental Protection and Energy, Office of

Energy, Bureau of Air Pollution Control, 401 East State Street, CN027,

Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs

Branch, Environmental Protection Agency, 26 Federal Plaza, room 1034,

New York, New York 10278 (212) 264-2517.

SUPPLEMENTARY INFORMATION: On July 16, 1993, the Environmental

Protection Agency (EPA) published in the Federal Register (58 FR 38326)

a notice of proposed rulemaking (NPR) concerning revisions to the New

Jersey State Implementation Plan (SIP) for ozone. The New Jersey

Department of Environmental Protection and Energy (NJDEPE), in order to

fulfill the requirements of the May 26, 1988 SIP call, and the

requirements of the Clean Air Act as amended in 1990 (the Act), made

SIP revision submittals to EPA on March 31, 1987, December 7, 1989, and

March 13, 1992. All three submittals contained adopted revisions to

subchapter 16, ``Control and Prohibition of Air Pollution by Volatile

Organic Compounds,'' of chapter 27, title 7 of the New Jersey

Administrative Code. The March 13, 1992, submittal also included

revisions to Subchapter 8, ``Permits and Certificates, Hearings, and

Confidentiality''; Subchapter 17, ``Control and Prohibition of Air

Pollution by Toxic Substances''; Subchapter 23, ``Prevention of Air

Pollution by Architectural Coatings and Consumer Products''; Subchapter

25, ``Control and Prohibition of Air Pollution from Vehicular Fuels'';

and Subchapter 3, ``Air Test Method 3: Sampling and Analytic Procedures

for the Determination of Volatile Organic Compounds from Source

Operations.'' Revisions to these regulations were necessary to maintain

consistency with the changes made to Subchapter 16, and primarily

involve the incorporation of revised terms and definitions.

With one exception, these revised regulations correct all of the

reasonably available control technology (RACT) deficiencies in New

Jersey's SIP which had been identified by EPA and were required to be

corrected under the provisions of section 182 of the Act. These are

referred to as ``RACT Fix-up'' deficiencies. The exception is the

submittal of capture efficiency test methods, for which EPA has

permitted states additional time so EPA can determine whether more cost

effective alternate methods are available.

The regulations also contain new provisions regulating automobile

refinishing, further industrial controls, and the application of RACT

to small surface coating and industrial sources. The rules also

regulate all of the Group III Control Techniques Guidelines (CTG)

source categories. These measures were committed to by New Jersey in

its 1983 ozone and carbon monoxide SIP.

The reader is referred to the NPR for further details on EPA's

review and findings.

Response to Public Comment

One commenter, the National Refrigerants Incorporated, submitted a

comment on EPA's proposed action.

Comment: This commenter is concerned that New Jersey's definition

of volatile organic compounds (VOCs) does not exempt some of the

chlorofluorocarbon, hydrochlorofluorocarbon, or hydrofluorocarbon

compounds which EPA classifies as negligibly photochemically reactive,

and some of which have the benefit of replacing CFCs which destroy the

upper atmosphere ozone layer. In addition, the commenter states that

these compounds are regulated by the Act and, therefore, New Jersey

does not need to regulate them.

EPA Response: On August 2, 1993, NJDEPE proposed further revisions

to Subchapter 16 to address additional requirements of the Act which is

before EPA now and will be acted upon separately in the future. One of

the revisions proposes changing its definition of VOC to be fully

consistent with EPA's, thereby exempting these from regulation as

VOC's. This would appear to address their concerns. However, the Act

does not prohibit EPA from approving a State regulation that goes

beyond the Act's requirements.

Final Action

The revisions and the rationale for EPA's action are explained in

EPA's July 16, 1993 NPR and will not be restated here because EPA's

final action does not differ from that proposed in the NPR.

In revising subchapter 16, New Jersey deleted the final compliance

dates applicable to sources because the dates had passed, and sources

are now expected to be in compliance. However, EPA requires the

specification of an enforceable final compliance date should it be

required to take federal enforcement action. Therefore, in the event

EPA needs to take enforcement action, it will base the compliance

penalties on the final compliance dates which were originally contained

in subchapter 16 when a given requirement was first adopted by New

Jersey. If EPA approved a subsequent revision which modified the final

compliance date, that revised date would apply.

EPA, in approving previous versions of subchapter 16, placed

conditions on its approval of certain sections which permitted New

Jersey to approve alternate requirements. EPA's previous approval

specified that if New Jersey approved any mathematical combinations of

emissions (old Sec. 16.6(c)(4) and (5)) or approved any variances from

the State requirements (old Secs. 16.9 and 16.10), they became

applicable only if approved by EPA as SIP revisions. The State has

decided that mathematical combinations are no longer an acceptable

method of compliance with Subchapter 16 requirements. In addition,

subchapter 16 has been revised to state that any variances must be

approved by EPA as a SIP revision. EPA views these provisions as giving

the Commissioner the authority to permit alternative requirements once

they have been submitted and approved by EPA as SIP revisions. EPA will

not recognize any variance or alternate requirement until it is

submitted to EPA by the State for approval as a source specific SIP

revision. Approval of a variance request by EPA will be based on a

case-by-case review and will involve the effect of the proposed

variance on air quality and on the ability of a facility to comply with

the existing regulation. Therefore, the comments currently in 40 CFR

52.1605 pertaining to these sections in Subchapter 16 are no longer

necessary.

SIP Deficiencies

Today's action also addresses all of the deficiencies identified in

a May 26, 1988 letter to Governor Kean and a January 30, 1991 letter to

the NJDEPE Commissioner finding the SIP substantially inadequate to

attain the ozone and carbon monoxide standards. The deficiencies

corrected relate to the VOC definition, recordkeeping, bubbles,

seasonal shutdowns, and compliance calculations. These corrections

strengthen the SIP and remove these deficiencies as a cause for SIP

inadequacy.

Conclusion

Although some of New Jersey's submittals preceded the date of

enactment of the 1990 Amendments to the Clean Air Act, EPA has

evaluated all the revisions for consistency with the Act's provisions,

EPA regulations and EPA policy. Therefore, EPA approves Subchapter 16

and the related changes made to Subchapters 8, 17, 23, and 25. These

changes have resulted in clearer, more enforceable regulations that

strengthen the SIP.

EPA also finds that these regulations address and correct all of

the ``RACT Fix-up'' deficiencies previously identified in Subchapter 16

by EPA in its letters of May 26, 1988, and January 31, 1992, with the

exception of capture efficiency test methods, for which EPA has

permitted states additional time so that EPA can determine if more cost

effective alternate methods are available. With the approval of these

regulations, it is no longer necessary for EPA to adopt a federal

implementation plan to address the ``RACT Fix-up'' deficiencies.

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 a SIP shall be considered separately

in light of specific technical, economic, and environmental factors and

in relation to relevant statutory and regulatory requirements.

This rule has been classified as a Table 3 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. A future document will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

waived Table 2 and 3 SIP revisions (54 FR 2222) from the requirements

of section 3 of Executive Order 12291 for a period of two years. The

EPA has submitted a request for a permanent waiver for Table 2 and 3

SIP revisions. The OMB has agreed to continue the wavier until such

time as it rules on EPA's request. This request continues in effect

under Executive Order 12866 which superseded Executive Order 12291 on

September 30, 1993.

Under section 307(b)(1) of the Act, petitions for judicial review

of this action 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 action may not be challenged later in proceedings

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Ozone, Volatile organic compounds.

Dated: March 23, 1994.

William J. Muszynski,

Acting 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 52.1570 is amended by adding new paragraph (c)(51) to

read as follows:

Sec. 52.1570 Identification of plan.

* * * * *

(c) * * *

(51) Revisions to the New Jersey State Implementation Plan (SIP)

for ozone concerning the control of volatile organic compounds from

stationary sources, dated March 31, 1987, December 7, 1989, and March

13, 1992 submitted by the New Jersey State Department of Environmental

Protection and Energy (NJDEPE).

(i) Incorporation by reference.

(A) Amendments to Chapter 27, Title 7 of the New Jersey

Administrative Code Subchapter 16, ``Control and Prohibition of Air

Pollution by Volatile Organic Substances,'' effective September 22,

1986,

(B) Amendments to Chapter 27, Title 7 of the New Jersey

Administrative Code Subchapter 16, ``Control and Prohibition of Air

Pollution by Volatile Organic Substances,'' effective June 19, 1989,

(C) Amendments to Chapter 27, Title 7 of the New Jersey

Administrative Code: Subchapter 8, ``Permits and Certificates,

Hearings, and Confidentiality,'' effective March 2, 1992; Subchapter

16, ``Control and Prohibition of Air Pollution by Volatile Organic

Compounds,'' effective March 2, 1992, Subchapter 17, ``Control and

Prohibition of Air Pollution by Toxic Substances,'' effective March 2,

1992; Subchapter 23, ``Prevention of Air Pollution by Architectural

Coatings and Consumer Products,'' effective March 2, 1992; Subchapter

25, ``Control and Prohibition of Air Pollution from Vehicular Fuels,''

effective March 2, 1992; and Subchapter 3, ``Air Test Method 3:

Sampling and Analytic Procedures for the Determination of Volatile

Organic Compounds from Source Operations,'' effective March 2, 1992.

(ii) Additional material.

(A) March 31, 1987, letter from Jorge Berkowitz, NJDEP, to Conrad

Simon, EPA requesting EPA approval of the amendments to Subchapter 16.

(B) December 7, 1989, letter from Anthony McMahon, NJDEP, to Conrad

Simon, EPA requesting EPA approval of the amendments to Subchapter 16.

(C) March 13, 1992, letter from Nancy Wittenberg, NJDEPE, to Conrad

Simon, EPA requesting EPA approval of the amendments to Subchapter 16.

3. Section 52.1605 is amended by revising the entries, for Title 7,

Chapter 27: Subchapters 8, 16, 17, 23 and 25, and for Title 7, Chapter

27B: Subchapter 3 to the table in numerical order as follows:

Sec. 52.1605 EPA--approved New Jersey State regulations.

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State effective EPA approved

State regulation date date Comments

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* * * * * * *

Title 7, Chapter

27

* * * * * * *

Subchapter 8, Apr. 5, 1985...... Nov. 25, 1986,

``Permits and 51 FR 42573.

Certificates,

Hearings, and

Confidentiality

;''.

Sections 8.1, Mar. 2, 1992...... [date and

8.2, and 8.11. citation of

this notice]

* * * * * * *

Subchapter 16, Mar. 2, 1992...... [date and Earlier versions

``Control and citation of of Subchapter

Prohibition of this notice] 16 remain part

Air Pollution of the SIP only

by Volatile to the extent

Organic of determining

Compounds''. compliance

dates which

have since

passed.

Subchapter 17, Mar. 2, 1992...... [date and Subchapter 17 is

``Control and citation of included in the

Prohibition of this notice] SIP only as it

Air Pollution relates to the

by Toxic control of

Substances;''. perchloroethyle

ne.

* * * * * * *

Subchapter 23, Mar. 2, 1992...... [date and

``Prevention of citation of

Air Pollution this notice]

by

Architectural

Coatings and

Consumer

Products;''.

* * * * * * *

Subchapter 25, Mar. 2, 1992...... [date and

``Control and citation of

Prohibition of this notice]

Air Pollution

from Vehicular

Fuels;''.

Title 7, Chapter

27B

Subchapter 3, Mar. 2, 1992...... [date and

``Air Test citation of

Method 3: this notice]

Sampling and

Analytic

Procedures for

the

Determination

of Volatile

Organic

Compounds from

Source

Operations''.

* * * * * * *

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[FR Doc. 94-8966 Filed 4-14-94; 8:45 am]

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