[Federal Register Volume 64, Number 59 (Monday, March 29, 1999)]
[Rules and Regulations]
[Pages 14832-14834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7427]


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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
 
                 *                  *                  *                    *                    *                  *                  *
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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