[Federal Register Volume 62, Number 17 (Monday, January 27, 1997)]
[Rules and Regulations]
[Pages 3804-3806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1845]
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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
* * * * * *
*
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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