Approval and Promulgation of Implementation Plans; Reasonably Available Control Technology for Oxides of Nitrogen for the State of New Jersey

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 145; NJ16-1-6470, FRL-5309-3]

Approval and Promulgation of Implementation Plans; Reasonably

Available Control Technology for Oxides of Nitrogen for the State of

New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The EPA proposes approval of revisions to the State

Implementation Plan (SIP) for ozone submitted by the State of New

Jersey. This portion of the implementation plan was submitted by the

State to satisfy Clean Air Act (the Act) requirements for adoption of

rules for the application of reasonably available control technology

(RACT) for oxides of nitrogen (NOX) in the entire State. The Act

requires implementation of NOX RACT at major stationary sources of

NOX emissions in the State of New Jersey by May 31, 1995.

DATES: Comments must be received on or before November 1, 1995.

ADDRESSES: All comments should be addressed to: William S. Baker,

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

Office, 290 Broadway, Twentieth Floor, New York, New York 10007-1866.

Copies of the state submittal and other information are available

at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs

Branch, 290 Broadway, Twentieth floor, New York, New York 10007-1866.

New Jersey Department of Environmental Protection, Office of Air

Quality Management, Bureau of Air Quality Planning, 401 East State

Street, CN418, Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, Twentieth floor, New

York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements for the reduction of NOX

emissions through RACT are set out in Section 182(f) of the Act.

Section 182(f) requirements are described by EPA in a notice, ``State

Implementation Plans; Nitrogen Oxides Supplement to the General

Preamble; Clean Air Act Amendments of 1990 Implementation of Title I;

Proposed Rule,'' published November 25, 1992 (57 FR 55620). The

November 25, 1992 notice should be referred to for detailed information

on the NOX requirements. Additional guidance memoranda which have

been released subsequent to the NOX Supplement should also be

referred to.

The EPA has defined RACT as the lowest emission limitation that a

particular source is capable of meeting by the application of control

technology that is reasonably available considering technological and

economic feasibility (44 FR 53762; September 17, 1979).

Section 182(f) of the Act requires states within moderate or above

ozone nonattainment areas or the ozone transport region to apply the

same requirements to major stationary sources of NOX (``major'' as

defined in Section 302 and Section 182(c), (d), and (e)) as are applied

to major stationary sources of volatile organic compounds (VOCs). For

more information on what constitutes a major source, see Section 2 of

the NOX Supplement to the General Preamble.

Section 182(b)(2) requires submittal of RACT rules for major

stationary sources of VOC emissions (not covered by a pre-enactment

control technique guidelines (CTG) document or a post-enactment CTG

document) by November 15, 1992. There were no NOX CTGs issued

before enactment and EPA has not issued a CTG document for any NOX

sources since enactment. States, in their RACT rules, are expected to

require final installation of the actual NOX controls by May 31,

1995 from those sources for which installation by that date is

practicable.

States within the Northeast ozone transport region established by

section 184(a) should have revised their SIPs to include the RACT

measures by November 15, 1992. Because states in a transport region are

generally subject to at least the moderate area requirements, EPA

believes that the schedule for implementing these RACT rules in the

ozone transport region should be consistent with the requirements of

Section 182(b)(2) and will be expected to require final installation of

the actual NOX controls by May 31, 1995 on those sources for which

installation by that date is practicable. Based on Section 182(f), New

Jersey is required to apply the NOX RACT requirements Statewide.

II. State Submittal

On November 15, 1993 New Jersey submitted to EPA as a revision to

the SIP, Subchapter 19, ``Control and Prohibition of Air Pollution From

Oxides of Nitrogen'' of Chapter 27, Title 7 of the New Jersey

Administrative Code with an effective date of December 20, 1993.

Subchapter 19 contains the NOX RACT requirements for the State.

New Jersey held public hearings on Subchapter 19 in March 1993 and it

was adopted on November 15, 1993. EPA reviewed the plan to determine

completeness in accordance with criteria set out at 40 CFR 51. The

submittal was found to be administratively and technically complete,

and a letter dated December 29, 1993 was forwarded to the Commissioner

indicating the completeness of the submittal and the next steps to be

taken in the review process.

It is important to note that New Jersey is a member of the

Northeast States for Coordinated Air Use Management (NESCAUM) and the

Ozone Transport Commission (OTC), which seek to develop a consistent

NOX reduction strategy for ozone attainment in the Northeast. New

Jersey's NOX RACT plan is consistent with the recommendations of

these groups, which are generally more stringent than EPA requirements.

For a more detailed discussion of New Jersey's submittal and EPA's

proposed action on the submittal, the reader should refer to the

Technical Support Document developed as part of this proposed action

and found at the previously mentioned addresses.

[[Page 51380]]

III. Analysis of New Jersey's SIP Submission

A. RACT Determination and Implementation

1. Utility Boilers

Section 19.4 of Subchapter 19 specifies the emission limitations

for utility boilers and three alternative ways for utility boilers to

comply: averaging, fuel switching, and repowering. Maximum allowable

NOX emission rates, expressed as pounds NOX per million BTUs

(lb. NOX/MM BTU), range from 0.2 to 1.0 depending on the type of

boiler and the type of fuel. Section 19.4 also requires utility boilers

to install a continuous emission monitoring system. The emission limits

specified by New Jersey are consistent with those recommended by the

EPA in the NOX Supplement. The emission limits are enforceable

through appropriate averaging times, test methods, compliance schedules

and reporting and recordkeeping requirements.

New Jersey's provisions allow utilities to comply with the NOX

RACT requirements by using an averaging plan throughout the State

including areas with different nonattainment classifications. This

alternative is further reviewed in Part III.A.3. of this document.

New Jersey's fuel switching provision is consistent with EPA

guidance which basically states that annual emissions of NOX must

be less than or equal to annual emissions that would result from

continuous compliance with presumptive NOX RACT.

New Jersey's repowering provision meets all of the requirements in

EPA's guidance. Repowering is simply the replacement of the steam

generator in a steam generating unit. New Jersey's provision requires

interim RACT to begin by May 1, 1995 and for the repower to be

completed by May 15, 1999. New Jersey defines interim RACT as annual

adjustments to the combustion process.

2. Stationary Gas Turbines

Section 19.5 specifies the maximum allowable NOX emission

rates (lb. NOX/MM BTU) ranging from 0.15 to 0.4 depending on the

type of turbine and the type of fuel. Alternatively, compliance can be

met through an averaging plan or where it can be shown that there is an

insufficient supply of water to the turbine and that there is no

commercially available dry low-NOX combustor suitable. In this

latter case, the owner/operator must obtain approval of this waiver

from New Jersey in accordance with Section 19.14 and in addition, the

combustion process of the turbine must be annually adjusted.

New Jersey's emission limitations are consistent with EPA's general

guidance. The emission limits are enforceable through appropriate

averaging times, test methods, compliance schedules and reporting and

recordkeeping requirements.

3. Emissions Averaging

Section 19.6 allows sources to comply with the regulation with an

averaging plan. Any person owning or operating at least two items of

equipment or source operations may request the Department's approval of

an averaging plan. The person developing an averaging plan must

identify the equipment and source operations to be included in the

plan. The averaging units included in the plan may be located at one or

more sites throughout the State, but must be owned and operated by the

same person. The central part of the application for an averaging plan

is the demonstration that if all averaging units included in the

designated set are operating at maximum design capacity, their total

emissions will be no greater than the total emissions which would be

allowed from all of the averaging units if they were subject to the

`presumptive' RACT emission limits.

This averaging provision is not intended to be a generic trading

rule covering all pollutants but is a limited trading rule for meeting

NOX RACT requirements. The New Jersey regulation is limited in

scope, time, and types of sources which can trade and is intended to be

an interim step in achieving future ozone attainment. New Jersey's

averaging provision met the general EPA guidance (NOX Preamble)

when these rules were proposed and adopted by the State. New Jersey, in

consultation with the OTC states and EPA, is currently developing

future trading rules which will have broader applicability. New

Jersey's averaging provision is satisfactory in that it meets EPA's

policy that was in existence at the time it was adopted by the State,

however there are some differences from current EPA trading policy.

These differences include: (1) definition of a violation, (2) improved

audit procedures, (3) a reconciliation procedure, (4) specification of

baseline emissions, and (5) the effects on credits of newly adopted

rules. The State's revisions will address these areas and strengthen

the NOX RACT regulations.

New Jersey's averaging plan is consistent with EPA's general

guidance (NOX Preamble). The averaging plan is enforceable through

appropriate averaging times, test methods, compliance schedules and

reporting and recordkeeping requirements.

4. Non-Utility Boilers

Section 19.7 specifies the requirements for non-utility boilers.

The control strategy depends on the maximum gross heat input rate of

the non-utility boiler, the type of boiler and the type of fuel used.

Smaller boilers are required to annually adjust the combustion process

to minimize NOX emissions, while the larger size boilers must meet

emission limits (lb. NOX/MM BTU) ranging from 0.1 to 1.0. Also,

any non-utility boilers with a maximum gross heat input rate of at

least 250 million BTUs per hour shall install a continuous emissions

monitoring system.

The emission limits specified by New Jersey are consistent with

those recommended by the EPA in the NOX Supplement. The emission

limits are enforceable through appropriate averaging times, test

methods, compliance schedules and reporting and recordkeeping

requirements.

5. Stationary Internal Combustion Engines

Section 19.8 establishes NOX emission limits for stationary

internal combustion engines. The emission limitations, expressed as

grams NOX per horsepower-hour, range from 1.5 to 8.0 depending on

the type of engine and the type of fuel used.

New Jersey's emission limits are consistent with EPA's general

guidance and with those suggested by NESCAUM. The emission limits are

enforceable through appropriate averaging times, test methods,

compliance schedules and reporting and recordkeeping requirements.

6. Asphalt Plants

Section 19.9 establishes NOX emission limits for asphalt

plants depending on the type of plant. The emission limit for these

sources is 200 parts per million (dry, volume basis) at seven percent

oxygen content. In addition to establishing emission limits, the

regulation requires the burner of an aggregate dryer to be adjusted

annually to reduce emissions of all pollutants.

New Jersey's emission limitations are consistent with EPA's general

guidance. The emission limits are enforceable through appropriate

averaging times, test methods, compliance schedules and reporting and

recordkeeping requirements.

[[Page 51381]]

7. Glass Manufacturing Furnaces

Section 19.10 establishes NOX emission limits for glass

manufacturing furnaces. The limitations depend on the type of glass

manufactured by the furnace.

The emission limits, expressed as pounds NOX per ton of glass

removal from the furnace, for commercial container and specialty

container glass manufacturing are 5.5 and 11.0 respectively. In the

case of borosilicate recipe glass manufacturing furnaces, a baseline

NOX emission rate must be determined by January 1, 1994 and a plan

must be submitted by July 1, 1994 explaining how those baseline

emissions will be reduced by 30 percent. The furnace must then

implement the plan and reduce its emissions accordingly. In addition,

the owner or operator of a glass manufacturing furnace must annually

adjust the combustion process of the furnace beginning in May 1994.

The Department has determined that glass furnaces will become

subject to the specific emission limitations on May 1, 1997, unless the

furnace is `rebricked' before that date, in which case the furnace

becomes subject to the emission limitations upon the date the

rebricking is completed.

EPA accepts the technical and economic rationale presented by New

Jersey in their proposed rule for the emission limits as adopted. EPA's

policy allows states to extend the repowering guidance to other source

categories. New Jersey's rebricking provisions meet all of the

requirements in EPA's guidance. New Jersey's provision requires interim

RACT to begin on May 1, 1994 and to rebrick and comply with the

emission limits by May 1, 1997 or the first date after rebricking is

completed, whichever is earlier. New Jersey defines interim RACT as

annual adjustments to the combustion process.

New Jersey's emission limitations are consistent with EPA's general

guidance and therefore, acceptable to the Agency. The emission limits

are enforceable through appropriate averaging times, test methods,

compliance schedules and reporting and recordkeeping requirements.

8. Facility-Specific NOX Emission Limits

Section 19.13 establishes a procedure for a case-by-case

determination of what represents RACT for a particular facility, item

of equipment or source operation. This procedure is applicable in two

situations: (1) if a major NOX facility contains any source

operation or item of equipment not listed in 19.2, or (2) if the owner

or operator of a source operation or item of equipment that is listed

in 19.2 seeks approval of an alternative maximum allowable emission

rate.

New Jersey's procedure entails the owners and/or operators of the

effected facility to propose a NOX control plan or request for an

alternative maximum allowable emission rate. The owners/operator are to

include a technical and economic feasibility analysis of the possible

alternative control measures. For each case, the regulations provide

for the Department to establish emission limits based upon a RACT

determination specific to the facility in question. The resulting

control plan or alternate maximum allowable emission rate would be

submitted for approval as a SIP revision.

Section 19.13(l) identifies the reasons why the State ``may''

revoke an approval of a NOX control plan. One reason would be an

EPA disapproval of the plan after EPA rulemaking action. The State

indicates that ``may'' does not apply to EPA disapprovals and that in a

forthcoming amendment to Subchapter 19, New Jersey will clarify this.

They will revise Sections 19.13(l)(3) and 19.13(h) to say that upon EPA

disapproval of a specific NOx plan, New Jersey will revoke the

plan. EPA is proposing to approve this provision because the New Jersey

explanation is acceptable and, regardless, EPA has adequate authority

under the Act to require the state to correct any EPA identified

deficiencies.

For sources not subject to specific emission limitations or work

practice standards, Section 19.13 provides a procedure and schedule

which must be followed in order to comply with Subchapter 19. Should a

source not comply with this procedure it would constitute a violation

of Subchapter 19 and would subject the source owner or operator to

civil and applicable criminal penalties. EPA believes this is

sufficient to insure that sources comply and should EPA have to take

enforcement action, it could use the same provisions to obtain

compliance.

9. Exemptions

Section 19.2 contains provisions to exempt equipment and source

operations. The following summarizes these exemptions:

1. Emergency generators which operate less than 500 hours

annually and have a potential to emit less than 25 tons of NOX.

This exemption provision is consistent with the Act since all

sources with a potential to emit less than 25 tons per year of

NOX are not subject to NOX emission limitations.

2. Equipment or source operations where the EPA Administrator

determines that the net air quality benefits are greater in the

absence of NOX reductions. This provision conforms to Section

182(f) of the Act providing for this NOX RACT exemption.

3. NOX sources with a potential to emit less than 25 tons

per year and with the potential to emit less than 137 pounds per day

during the ozone season. This provision is consistent with the Act

as indicated in the first exemption above.

10. Other Provisions

The following are administrative and procedural provisions to

Subchapter 19 which were reviewed by EPA: definitions; general

provisions; procedures for obtaining approvals and demonstrating

compliance; requirements for adjusting the combustion process; emission

testing, monitoring, and recordkeeping; and civil penalties. EPA has

evaluated these provisions in Subchapter 19 for consistency with EPA

policy and has determined that they meet the requirements and are

therefore acceptable to the Agency.

IV. Summary

The EPA is proposing full approval of Subchapter 19, ``Control and

Prohibition of Air Pollution From Oxides of Nitrogen'' submitted by the

State of New Jersey on November 15, 1993 for the marginal, moderate,

and severe ozone nonattainment areas. New Jersey has applied Subchapter

19 to the entire State.

Nothing in this proposed 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 the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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. Secs. 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 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.

[[Page 51382]]

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 Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v US EPA, 427 US 246, 256-66 (S.Ct. 1976);

42 U.S.C. Sec. 7410(a)(2).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a federal mandate that may result in

estimated annual costs of $100 million or more to the private sector,

or to state, local, or tribal governments in the aggregate.

Through submission of this state implementation plan revision, the

state and any affected local or tribal governments have elected to

adopt the program provided for under Section 182(f) of the Clean Air

Act. These rules may bind state, local and tribal governments to

perform certain actions and also require the private sector to perform

certain duties. To the extent that the rules being proposed for

approval by this action would impose any mandate upon the state, local

or tribal governments either as the owner or operator of a source or as

a regulator, or would impose any mandate upon the private sector, EPA's

action would impose no new requirements; such sources are already

subject to these regulations under state law. Accordingly, no

additional costs to state, local, or tribal governments, or to the

private sector, result from this action. EPA has also determined that

this proposed action does not include a mandate that may result in

estimated annual costs of $100 million or more to state, local, or

tribal governments in the aggregate or to the private sector.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation by reference,

Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements.

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

Dated: September 15, 1995.

William J. Muszynski,

Deputy Regional Administrator.

[FR Doc. 95-24451 Filed 9-29-95; 8:45 am]

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