# Approval and Promulgation of Implementation Plans; Revision to the New Jersey State Implementation Plan for Ozone > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-8966 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 15, 1994 ## Text 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. ----------------------------------------------------------------------- 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. ------------------------------------------------------------------------ State effective EPA approved State regulation date date Comments ------------------------------------------------------------------------ * * * * * * * 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''. * * * * * * * ------------------------------------------------------------------------ [FR Doc. 94-8966 Filed 4-14-94; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-8966. Public record. Not legal advice.