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 2 Docket No. NJ16-2-160, FRL-5671-6]

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: 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) for

ozone. This revision of the SIP 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) to

sources that emit oxides of nitrogen (NOX) in the entire State.

EPA is approving Subchapter 19, ``Control and Prohibition of Air

Pollution From Oxides of Nitrogen.''

EFFECTIVE DATE: This rule will be effective February 26, 1997.

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

addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch,

290 Broadway, 25th Floor, New York, New York 10007-1866

New Jersey Department of Environmental Protection, Office of Air

Quality Management, Bureau of Air Pollution Control, 401 East State

Street, CN027, Trenton, New Jersey 08625

Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, S.W., Washington,

D.C. 20460

FOR FURTHER INFORMATION CONTACT: Ted Gardella, Environmental Engineer,

Air Programs Branch, Environmental Protection Agency, 290 Broadway,

25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION: On November 15, 1993, New Jersey submitted

to EPA as a revision to its 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. The SIP revision was submitted to satisfy

section 182(f) of the Act which requires states with ozone

nonattainment areas classified moderate or above or with areas in the

ozone transport region to apply RACT to major stationary sources of

NOX. On October 2, 1995, EPA published in the Federal Register (60

FR 51379) a Notice of Proposed Rulemaking (NPR) proposing to approve

Subchapter 19 and provided for a 30-day public comment period. EPA

received no comments regarding the NPR.

Subsequently, national policy discussions regarding the

approvability of state regulations that contain generic provisions in

establishing RACT requirements for major sources of NOX and/or

volatile organic compounds (VOC) emissions resulted in additional

Agency guidance. Generic provisions are those portions of a regulation

which require the application of RACT to an emission point, but the

degree of control is not specified in the rule and is to be determined

on a case-by-case basis taking technological and economic factors into

consideration. Under the Act, these individually determined RACT limits

would then need to be submitted by a state as a SIP revision for EPA

approval. On November 7, 1996, EPA issued a policy memorandum providing

additional guidance for approving regulations which contain these

``generic provisions.'' (Sally Shaver memorandum to EPA Division

Directors, ``Approval Options for Generic RACT Rules Submitted to Meet

the non-CTG VOC RACT Requirement and Certain NOX RACT

Requirements'').

EPA policy allows for the full approval of state generic RACT rules

prior to EPA approval of all major source RACT determinations provided

an analysis is completed that concludes that the remaining source RACT

determinations involve a de minimis level of NOX emissions. Such

an approval does not exempt the remaining sources from RACT; rather it

is a de minimis deferral of the approval of these case-by-case RACT

limits. EPA has evaluated data provided by New Jersey and has

determined that two percent of the NOX emissions subject to RACT

controls have not yet been regulated. EPA believes this amount to be de

minimis. The two percent de minimis level is based on State submitted

SIP revisions covering 22 facilities (out of approximately 40) whose

RACT limits have been approved by EPA in a direct final action (See 62

FR 2581, January 17, 1997). New Jersey is preparing SIP revision

requests for the approximate 20 remaining sources which account for the

remaining two percent of NOX emissions. While EPA has published a

direct final approval for 22 source specific SIP revisions and does not

anticipate adverse comments, even if the effective date is delayed EPA

believes that full approval is appropriate because the unregulated

emissions still do not exceed a de minimis threshold. Therefore, EPA

has determined that New Jersey's NOX RACT regulation conforms with

EPA's policy regarding the approval of generic RACT provisions or

rules, thereby allowing EPA to grant full approval to Subchapter 19.

As stated above, full approval of Subchapter 19 will not relieve

sources of the obligation to develop, submit and implement RACT level

controls. Nor will it relieve New Jersey of the obligation to ensure

that all sources within the State comply with the NOX RACT

requirements of the Act by adopting and implementing emission

limitations. The approval of Subchapter 19 requires that all major

sources of NOX must comply with RACT and this requirement is

enforceable by EPA as well as citizen groups under Section 304 of the

Act. If EPA determines that the regulated sources and the State are not

complying with the requirement to adopt RACT, EPA could issue a SIP

call or a finding of non-implementation of the SIP.

Conclusion

EPA has evaluated Subchapter 19 for consistency with the Act's

provisions, EPA regulations and policy and has determined this

regulation is fully approvable. Therefore, this rule makes final the

action proposed at 60 FR 51379 dated October 2, 1995.

Administrative Requirements

Executive Order 12866

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 E.O. 12866 review.

Regulatory Flexibility Act

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

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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

a 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. Moreover,

due to the nature of the Federal-State relationship under the Act,

preparation of a 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. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to state, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a federal mandate that may result in estimated annual costs of

$100 million or more to either state, local, or tribal governments in

the aggregate, or to the private sector. This federal action approves

pre-existing requirements under state or local law, and imposes no new

requirements. Accordingly, no additional annual costs to state, local,

or tribal governments, or to the private sector, result from this

action.

Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Petitions for Judicial Review

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 by March 28, 1997. 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: December 31, 1996.

William J. Muszynski,

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 52.1570 is amended by adding new paragraph (c)(60) to

read as follows:

Sec. 52.1570 Identification of plan.

* * * * *

(c) * * *

(60) A revision to the New Jersey State Implementation Plan (SIP)

for ozone for adoption of rules for application of reasonably available

control technology (RACT) for oxides of nitrogen (NOX) dated

November 15, 1993, submitted by the New Jersey Department of

Environmental Protection and Energy.

(i) Incorporation by reference:

(A) Title 7, Chapter 27, Subchapter 19, of the New Jersey

Administrative Code entitled ``Control and Prohibition of Air Pollution

from Oxides of Nitrogen,'' effective December 20, 1993.

(ii) Additional information:

(A) November 15, 1993 letter from Jeanne Fox, NJDEPE, to William J.

Muszynski, EPA, requesting EPA approval of Subchapter 19.

3. Section 52.1605 is amended by adding a new entry for Subchapter

19 under the heading ``Title 7, Chapter 27'' to the table in numerical

order to read as follows:

Sec. 52.1605 EPA--approved New Jersey regulations.

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State regulation State effective date EPA approved date Comments

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* * * * * *

Title 7, Chapter 27

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*

Subchapter 19, ``Control and Dec. 20, 1993............ [January 27, 1997 and FR

Prohibition of Air Pollution page citation]

from Oxides of Nitrogen.''.

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[FR Doc. 97-1845 Filed 1-24-97; 8:45 am]

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