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. NJ31-1-182, FRL-6153-9]

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: Proposed rule.

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SUMMARY: The EPA proposes approval of revisions to the New Jersey State

Implementation Plan (SIP) for ozone. This portion of the implementation

plan was submitted by the State as an amendment to New Jersey's rules

for the application of reasonably available control technology (RACT)

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

Air Act (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 September 30, 1998.

ADDRESSES: All comments should be addressed to: Ronald Borsellino,

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

Office, 290 Broadway, 25th 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 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 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, 25th 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 application of RACT are set out in

section 182(f) of the Act. The EPA described Sec. 182(f) requirements

in a notice entitled ``State Implementation Plans; Nitrogen Oxides

Supplement to the General Preamble; Clean Air Act Amendments of 1990

Implementation of Title I; Proposed Rule,'' (NOX Supplement)

which was published on November 25, 1992 (57 FR 55620). For detailed

information on the NOX requirements, refer to the

NOX Supplement and to additional NOX guidance

memoranda released subsequent to the NOX Supplement.

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

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technological and economic feasibility (44 FR 53762; September 17,

1979).

Section 182 of the Act provides requirements for marginal and above

nonattainment areas. Within ozone nonattainment areas classified

moderate or above and areas within an ozone transport region,

Sec. 182(f) requires that States apply the same requirements to major

stationary sources of NOX (``major'' as defined in Sec. 302

and Sec. 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) of the Act requires submissions, by November 15,

1992, of SIP revisions which provide for implementation of RACT as

expeditiously as practicable but no later than May 31, 1995, where for

a source category EPA has issued a control technique document (CTG)

before November 15, 1990, or for all major stationary sources that the

Agency has not issued a CTG. For sources covered by a CTG between

November 15, 1990 and the date of attainment, Sec. 182(b)(2) requires

SIP revisions within the period set forth by the Administrator in

issuing the CTG document.

EPA did not issue any CTGs for major stationary sources of

NOX either before or after November 15, 1990. Therefore,

Sec. 182(b)(2) of the Act requires submission, by November 15, 1992, of

all SIP revisions which provide for implementation of RACT on major

stationary sources of NOX for all ozone nonattainment areas

classified moderate or above and for all ozone transport regions. New

Jersey, which is within the Northeast ozone transport region

established by Sec. 184(a) of the Act, should have submitted SIP

revisions, by November 15, 1992, which provided for implementation of

the NOX RACT revisions as expeditiously as practicable but

no later than May 31, 1995. Sections 182(f) and 184(b) of the Act

require the application of NOX RACT requirements Statewide.

II. State Submittal

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

the SIP, Subchapter 19 of Chapter 27, Title 7 of the New Jersey

Administrative Code. Subchapter 19 is entitled ``Control and

Prohibition of Air Pollution From Oxides of Nitrogen.'' This Subchapter

provides the NOX RACT requirements for New Jersey and is

effective on December 20, 1993. New Jersey held public hearings on

Subchapter 19 in March 1993 and adopted it on November 15, 1993. On

January 27, 1997, EPA published final approval of Subchapter 19 in the

Federal Register (62 FR 3804) and the rule became effective on February

26, 1997.

New Jersey held public hearings on the amendments to Subchapter 19

in September 1994 and the Commissioner signed and adopted these

amendments on March 24, 1995. On June 21, 1996, New Jersey submitted,

to EPA, as a revision to the SIP, the amendments to Subchapter 19. EPA

reviewed the submittal to determine completeness in accordance with

criteria set out at 40 CFR 51. In a letter to the Commissioner dated

September 26, 1996, EPA indicated it had found the submittal

administratively and technically complete.

The June 1996 submittal includes six new provisions and various

amendments to Subchapter 19. For a more detailed discussion of New

Jersey's submittal and EPA's proposed action on the submittal, refer to

the Technical Support Document developed as part of this proposed

action located at the previously mentioned addresses.

III. Analysis of New Jersey's SIP Submission

A. New Provisions

1. Fuel Switching

Section 19.20 of Subchapter 19 permits any combustion source to

attain compliance through seasonal combustion of natural gas or any

other fuel that is cleaner than the base year fuel. Section 19.20

replaces section 19.4(b) which allowed fuel switching only to certain

utility boilers whereas this new provision applies to all combustion

sources. The new fuel switching provision requires a combustion source

to meet specified emission limits each day during the ozone season, a

30-day rolling average during the non-ozone season, and an annual

NOX emission limit. The fuel switching limits are

enforceable through appropriate averaging times, test methods,

compliance schedules, and reporting and recordkeeping requirements.

2. Phased Compliance--Repowering

Section 19.21 of Subchapter 19 permits any combustion source to

attain compliance through repowering. Repowering is the permanent

ceasing of operations of the steam generator and either the

installation of a new combustion source or the purchase of heat or

power from the owner of a new combustion source that is located in New

Jersey. Section 19.21 requires a combustion source to submit an

analysis that defines RACT for the interim period between May 31, 1995

and the date the source will be repowered which will be no later than

May 1, 1999; and to submit the dates for completion of repowering

milestones. The source also must commit to meeting emission limits,

after the repowering is completed, which rely on advanced control

techniques. The maximum allowable NOX emission rate,

expressed in pounds per million BTUs (lb/MM BTU), for repowered utility

boilers ranges from 0.1 to 0.2 depending upon the type of boiler and

type of fuel.

Section 19.21 replaces Sec. 19.4(c) which allowed repowering only

to utility boilers whereas this new provision applies to all combustion

sources. New Jersey's repowering provision in Sec. 19.21 is consistent

with EPA's repowering guidance issued in March 1994. The phased

compliance repowering requirements are enforceable through appropriate

averaging times, test methods, compliance schedules, and reporting and

recordkeeping requirements.

3. Phased Compliance--Impracticality of Full Compliance by May 31, 1995

Section 19.22 permits a combustion source to implement RACT after

May 31, 1995 if it is impracticable to attain full compliance by that

date despite the best efforts of the owners/operators. Under this

circumstance, New Jersey allows an owner/operator to meet RACT

requirements by complying with a plan for phased compliance. In its

application to New Jersey for approval of a phased compliance plan, the

owner/operator must describe the efforts taken to bring the source into

full compliance by May 31, 1995 and must explain the circumstances that

make full compliance by that date impracticable. The compliance plan

must include a compliance schedule and the proposed NOX

control measure that the source will employ during the interim period

between May 31, 1995 and the date when the source will achieve full

compliance. Section 19.22 requires the interim period be less than

twelve months, i.e., by May 31, 1996.

Section 19.22 is consistent with EPA guidance for phased compliance

as published in the Federal Register (57 FR 55620, November 23, 1992)

and is enforceable through compliance schedules and the applicable

averaging time, test methods, and reporting and recordkeeping

requirements.

4. Phased compliance--Use of Innovative Control Technology

Section 19.23 allows a combustion source to attain compliance

through the use of innovative control technology. Section 19.23 applies

to all combustion

[[Page 46211]]

sources. Innovative control technology is a control measure which has a

substantial likelihood of achieving lower continuous levels of

NOX emissions as required under Subchapter 19, but which has

not been adequately demonstrated and is not available to be implemented

before May 31, 1995. In this situation, the combustion source is not

expected to attain full compliance with Subchapter 19 by May 31, 1995

but instead, New Jersey requires the source to achieve a greater

emission reduction at a later date. In its compliance plan application,

the owner/operator must submit a RACT analysis for determining

``interim RACT,'' a milestone schedule for implementing the innovative

control technology, and a demonstration that the innovative technology

to be implemented is technically sound and sufficiently developed to be

implemented by May 1, 1999.

New Jersey's innovative control technology provision in Sec. 19.23

is consistent with EPA's July 1994 guidance. The phased compliance

requirements through the use of innovative control technology are

enforceable through appropriate averaging times, test methods,

compliance schedules, and reporting and recordkeeping requirements.

5. Maximum Emergency Generation (MEG) Alerts

Section 19.24 provides that during a MEG alert which occurs on or

before November 15, 2005, an emergency generating unit operating at

emergency capacity is exempt from the NOX emission limits

applicable under Chapter 27 including Subchapter 19 and any limit set

forth in the unit's permit. Subchapter 19 defines MEG alert as a period

in which one or more electric generating units are operated at

emergency capacity at the direction of the load dispatcher, in order to

prevent or mitigate voltage reductions or interruptions in electrical

service or both. When an electrical generating unit is operating beyond

its normal maximum capacity during a MEG alert, its rate of

NOX emissions is likely to increase significantly. New

Jersey requires that the generating unit obtain offsetting

NOX emission reductions, at a ratio of 1.3 to 1.0, to

compensate for the excess NOX emissions. The affected source

is required to report the MEG alert to New Jersey along with the

determination of excess NOX emissions and compensation.

MEG alerts most typically occur during the summer ozone season when

high demand for electricity occurs due to high usage of air

conditioners and industrial cooling equipment. MEG alerts could also

occur during bitterly cold weather or as a result of a catastrophic

event or some major failure at a generating unit. New Jersey has

reported (26 New Jersey Register 3304, August 15, 1994) that one of the

major utilities in the State responded to alerts for a total of sixteen

hours during the ozone and non-ozone seasons of the three-year period

of 1990 to 1992.

EPA considers MEG alerts to have minimal impact on air quality

during these emergency situations when the security and safety of the

public could be at risk if an exemption were not granted. In addition,

New Jersey has limited the NOx exemption period for MEG alerts until

November 15, 2005 which is the primary standard attainment date for

ozone established under Sec. 181(a)1 of the Act for most of New Jersey.

Beyond November 15, 2005, the MEG alert exemption no longer applies and

affected sources must comply with the emission limits of Chapter 27

including Subchapter 19.

6. Exemption for Emergency Use of Fuel Oil

Section 19.25 permits an exemption to sources that combust natural

gas or refinery gas as its primary year-round fuel and to sources that

combust natural gas during the ozone season. The exemption allows the

use of fuel oil or other liquid fuels during the periods when natural

gas/refinery gas is unavailable. During this period the source is

exempt from the applicable emission limits of Subchapter 19. Section

19.25 establishes requirements for a source to be eligible for an

exemption including a 500 hour rolling annual limit on the use of fuel

oil/liquid fuel, recordkeeping and reporting requirements, and the

resumption to natural gas as soon as it becomes available in sufficient

supply. Future revisions to Subchapter 19 should include language to

Sec. 19.25(c) that clearly establishes that the exemption eligibility

criteria apply to sources that combust refinery gas as well as to those

combusting natural gas. Currently, Sec. 19.25 directly states that the

exemption eligibility criteria apply to sources that combust natural

gas but only infers that it applies to sources that combust refinery

gas.

Section 19.25 is enforceable through appropriate averaging times,

recordkeeping and reporting requirements. Furthermore, emergency

sources that operate with fuel oil more than 500 hours per consecutive

12 month period are subject to emission controls and/or enforcement

action in accordance with Subchapter 19. Finally, natural gas

curtailments historically occur in the winter months when ozone

formation is minimal and therefore an ozone exceedance is highly

improbable.

B. Amendments

1. Ozone Season

Sections 19.2 (Purpose, scope and applicability), 19.6 (Emissions

averaging), 19.7 (non-utility boilers and other indirect heat

exchangers), 19.15 (Procedures and deadlines for demonstrating

compliance), 19.19 (Recordkeeping and reporting) are amended to revise

the start of the ozone season from May 15 to May 1 whereas the

September 15 end date remains unchanged. This revision to the start of

the ozone season is in agreement with EPA's general requirement for

ozone monitoring (40 CFR Part 58, Appendix D, section 2.5).

2. Non-utility Boilers and Other Indirect Heat Exchangers

Section 19.7 is amended to include the source category ``other

indirect heat exchangers'' requiring the same RACT limitations as non-

utility boilers. New Jersey provides a definition and examples of

indirect heat exchangers to include boilers, duct burners and process

heaters. Section 19.7 requires a new emission limit of 0.20 lb/MM BTU

for tangential and face-fired affected units that combust refinery gas

and which have a maximum gross heat input of at least 50 MM BTU/hr.

New Jersey's emission limits are consistent with EPA's guidance.

The emission limits are enforceable through appropriate averaging

times, test methods, compliance schedules, and reporting and

recordkeeping requirements.

3. Exemption for Thermal Oxidizers

Section 19.13 is amended to include an exemption to owners/

operators of thermal oxidizers from the requirements to submit a

facility-specific NOX Control Plan that would establish RACT

for the source. New Jersey has reviewed NOX Control Plans

for these sources and has determined that there is no existing

NOX control technology that could appropriately be

considered RACT. Although EPA has not provided NOX RACT

guidance for thermal oxidizers, New Jersey has demonstrated that there

are no NOX control measures which represent RACT for these

sources. Therefore, EPA proposes approval of this amendment.

4. Other Amendments

The following include administrative and procedural provisions to

Subchapter 19 which were amended by New Jersey and reviewed by EPA:

definitions; purpose, scope and

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applicability; general provisions; utility boilers; stationary gas

turbines; emissions averaging; non-utility boilers and other indirect

heat exchangers; stationary internal combustion turbines; asphalt

plants; glass manufacturing furnaces; facility-specific NOX

emission limits; procedures for obtaining approvals under this

subchapter; procedures and deadlines for demonstrating compliance;

recordkeeping and reporting; and penalties. EPA has evaluated the

amendments to these provisions in Subchapter 19 for consistency with

EPA policy and has determined that they meet the requirements.

Therefore, EPA proposes approval of these amendments.

IV. Summary

The EPA is proposing full approval of the new provisions and

amendments to Subchapter 19, ``Control and Prohibition of Air Pollution

From Oxides of Nitrogen.'' The new provisions and amendments to

Subchapter 19 were submitted by the State of New Jersey on June 21,

1996 for the marginal, moderate, and severe ozone nonattainment areas.

New Jersey has applied Subchapter 19 to the entire State, regardless of

the nonattainment status.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This proposed rule will not have a significant impact on

a substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

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

Clean Air Act, preparation of 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. U.S. EPA, 427 U.S. 246, 255-66 (1976);

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

Executive Order 13045

The proposed rule is not subject to E.O. 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

E.O. 12866.

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. section 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. section 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 October 30, 1998. 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, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Authority: 42 U.S.C 7401 et seq.

Dated: August 19, 1998.

Jeanne M. Fox,

Regional Administrator, Region 2.

[FR Doc. 98-23323 Filed 8-28-98; 8:45 am]

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