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. NJ31-2-189, FRL-6313-9]

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: Final rule.

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SUMMARY: The EPA is approving revisions to the New Jersey State

Implementation Plan (SIP) for ozone. The State submitted this SIP

revision as an amendment to New Jersey's statewide rule for the

application of reasonably available control technology (RACT) to

sources that emit oxides of nitrogen (NOX). The intended

affect of this SIP revision is to reduce emissions of NOX in

order to help attain the national ambient air quality standard for

ozone.

EFFECTIVE DATE: This rule will become effective April 28, 1999.

ADDRESSES: 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.

Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, SW, Washington, DC

20460.

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: 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 became effective on December 20, 1993. On January 27, 1997

(62 FR 3804), EPA published approval of Subchapter 19 as part of the

SIP.

On June 21, 1996, New Jersey submitted to EPA, as a revision to the

SIP, the revisions to Subchapter 19. The June 1996 SIP submittal from

New Jersey includes new provisions and amendments to Subchapter 19. The

revisions apply to major stationary sources of NOX and allow

a facility to comply with Subchapter 19 with any of the following new

provisions: seasonal fuel switching; the emergency use of fuel oil; an

exemption for electric generating facilities during a maximum emergency

generating alert; and phased compliance for facilities choosing to

repower, facilities actively pursuing innovative control technology, or

facilities that made a good faith effort to comply by May 31, 1995. On

August 31, 1998, EPA published in the Federal Register (63 FR 46209) a

Notice of Proposed Rulemaking (NPR) proposing to approve the June 21,

1996 revisions to Subchapter 19 and providing for a 30-day public

comment period. EPA received no comments regarding the NPR. For a more

detailed discussion of New Jersey's SIP submittal and EPA's action, the

reader is referred to the NPR.

Conclusion

The EPA has evaluated the June 21, 1996 revision to Subchapter 19

for consistency with the Act's provisions, EPA regulations and policy

and has determined that the revisions to this regulation are fully

approvable. Therefore, this rule makes final the action proposed at 63

FR 46209.

Administrative Requirements

Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically

[[Page 14833]]

significant'' as defined under E.O. 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This SIP approval is not subject to E.O.

13045 because it approves a state program implementing a Federal

standard.

Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

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 final 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).

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 costs to State, local, or

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

Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the 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 Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by May 28, 1999. 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.

Dated: March 14, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

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 et seq.

Subpart FF--New Jersey

2. Section 52.1570 is amended by adding new paragraph (c)(66) to

read as follows:

Sec. 52.1570 Identification of plan.

* * * * *

(c) * * *

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

for ozone

[[Page 14834]]

concerning revisions to the rule for requiring reasonably available

control technology (RACT) for sources emitting oxides of nitrogen

(NOx) dated March 24, 1995, submitted by the New Jersey

Department of Environmental Protection.

(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 April 17, 1995.

(ii) Additional information:

(A) June 21, 1996 letter from Robert C. Shinn, Jr., NJDEP, to

Jeanne M. Fox, EPA, requesting EPA approval of revisions to Subchapter

19.

3. In Sec. 52.1605 the table is amended by revising the entry for

Subchapter 19 under the heading ``Title 7, Chapter 27'' 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 Prohibition of Apr.17, 1995................... Mar. 29, 1999 and FR page

Air Pollution from Oxides of Nitrogen''. citation.

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[FR Doc. 99-7427 Filed 3-26-99; 8:45 am]

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