[Federal Register Volume 63, Number 168 (Monday, August 31, 1998)]
[Proposed Rules]
[Pages 46209-46212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23323]


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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

[[Page 46210]]

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

[[Page 46212]]

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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