[Federal Register Volume 68, Number 218 (Wednesday, November 12, 2003)]
[Rules and Regulations]
[Pages 63991-63993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28212]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NJ56-250c, FRL-7582-8]


Approval and Promulgation of Implementation Plans; Reasonably 
Available Control Technology for Oxides of Nitrogen for Specific 
Sources in 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. These revisions consist of source-
specific reasonably available control technology (RACT) determinations 
for controlling oxides of nitrogen (NOX) emissions from 
seven facilities in New Jersey.
    The EPA is also announcing that, for an eighth facility, New Jersey 
has revised a NOX RACT permit emission limit that EPA 
previously approved and EPA is incorporating the revised stricter limit 
into the State's SIP.
    This final rule approves the source-specific RACT determinations 
that were made by New Jersey in accordance with provisions of its 
regulation. The intended effect of this rulemaking is to approve 
source-specific emission limitations required by the Clean Air Act.

EFFECTIVE DATE: This rule will be effective December 12, 2003.

ADDRESSES: A copy of the New Jersey submittals are available at the 
following addresses for inspection during normal business hours:
    Environmental Protection Agency, Region II 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 (6102T), 1301 Constitution Avenue, NW., 
Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-3892 or at 
[email protected].

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the Supplementary Information section:

I. What Action Is EPA Taking Today?
II. What Comments Did EPA Receive in Response to Its Proposal?
    A. Background information
    B. Comments received and EPA's response
III. What Is EPA's Conclusion?
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking Today?

    EPA is approving revisions to New Jersey's ozone SIP submitted on 
January 21, 1998, June 12, 1998 and April 26, 1999. Seven specific 
sources are addressed in these SIP revisions. New Jersey revised and 
submitted these revisions in response to a Clean Air Act (CAA) 
requirement that states require

[[Page 63992]]

Reasonably Available Control Technology (RACT) at all major stationary 
sources of NOX. The seven sources addressed are: American 
Ref-Fuel Company/Essex County Resource Recovery Facility; Co-Steel 
Corporation of Sayreville (formerly New Jersey Steel Corporation); Co-
Steel Raritan Corporation; Homasote Company; Milford Power Limited 
Partnership; University of Medicine and Dentistry of Newark, and Roche 
Vitamins, Inc.
    Additionally, on February 21, 2001, in a letter to EPA, New Jersey 
indicated that with regard to the Township of Wayne, in accordance with 
a previously submitted and approved SIP revision the State had changed 
the permitted NOX limit to a more stringent limit. The 
previously approved SIP revision for this source indicated that the 
emission limits may be revised to reflect results from required stack 
testing. The permit required tests had been completed and New Jersey 
established a new, more stringent emission limit based upon the results 
of these tests and the new limit is also being incorporated into the 
SIP.
    The specific NOX emission limitations that EPA is 
approving in today's rulemaking and the full evaluation can be found in 
actions (68 FR 47532 and 68 FR 47477) published in the Federal Register 
on August 11, 2003.

II. What Comments Did EPA Receive in Response to Its Proposal?

A. Background Information

    On August 11, 2003, EPA announced, in proposed and direct final 
rules published in the Federal Register (68 FR 47532 and 68 FR 47477, 
respectively), approval of New Jersey's NOX RACT 
determinations for the same eight sources which are subject to today's 
final rulemaking. On August 11, 2003, EPA received an adverse comment 
on the direct final rule. EPA had indicated in its August 11, 2003 
direct final rule that if EPA received adverse comments, it would 
withdraw the direct final rule. Consequently, EPA informed the public, 
in a withdrawal notice published in the Federal Register (68 FR 54163) 
on September 16, 2003, that EPA received an adverse comment and that 
the direct final rule did not take effect. EPA did not receive any 
other comments. EPA is addressing the adverse comment in today's final 
rule based upon the proposed action published on August 11, 2003.

B. Comments Received and EPA's Response

    EPA received one adverse comment on its August 11, 2003 direct 
final rule to approve New Jersey's NOX RACT determinations 
for eight facilities located throughout the State from a concerned 
citizen. That comment and EPA's response follows.
    Comments: A concerned citizen commented that ``the standards for 
New Jersey should be set higher and require fewer tons per year 
emissions'' and the citizen ``did not feel these standards are high 
enough.'' The comments did not address any specific source or any 
specific NOX emission limitation. In addition, no supporting 
information or justification was provided.
    Response: The 1990 CAA requires states, in which areas are 
designated as nonattainment for the one-hour ozone standard and are 
classified as moderate or higher, to submit SIP provisions, for EPA 
approval, which establish RACT for major stationary sources of 
NOX. 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 
technological and economic feasibility (44 FR 53762, September 17, 
1979).
    In this regard, New Jersey determined that each of the eight 
sources were major stationary sources of NOX and therefore 
subject to the CAA requirement to implement RACT. As discussed in the 
August 11, 2003 direct final rule, New Jersey submitted SIP revisions, 
for EPA approval, that established RACT, including NOX 
emission limitations for each of the eight sources subject to the 
citizen's comment. It should be noted that EPA requires some new 
sources to be subject to more stringent requirements than the RACT 
requirements for existing sources, such as Best Available Control 
Technology (BACT) or Lowest Achievable Emission Rate (LAER). One of the 
eight sources addressed in the SIP submission is subject to BACT 
requirements, but the remaining seven sources are not subject to these 
more stringent requirements. New Jersey submitted its RACT 
determinations, for EPA approval, for the eight sources, to fulfill the 
CAA requirements for RACT and not to meet any other more stringent 
requirement.
    EPA evaluated each RACT determination and documented its findings 
in ``Technical Support Document--NOX RACT Source Specific 
SIP Revisions--State of New Jersey'' dated May 23, 2003. The August 11, 
2003 direct final rule announced the availability of this technical 
support document to the public. However, EPA did not receive any 
requests for a copy. In the Technical Support Document for this rule, 
EPA indicates that New Jersey's submittals are consistent with relevant 
EPA guidance and the requirements of the State's RACT regulation 
(Subchapter 19) and provide sufficient justification to support the 
established NOX requirements. For the reasons provided in 
this section and in the Technical Support Document, EPA is approving 
the NOX emission limitations for the eight sources subject 
to today's rulemaking as consistent with the RACT requirements of the 
CAA.

III. What Is EPA's Conclusion?

    The EPA is approving the source-specific SIP revisions described 
above as RACT for the control of NOX emissions from the 
seven sources identified in the three source-specific SIP revisions and 
for an eighth source, is approving the stricter limit revised by the 
State in accordance with a SIP revision which EPA previously approved. 
EPA is approving the State's RACT determinations because New Jersey 
established and imposed these RACT requirements in accordance with the 
criteria set forth in the SIP-approved RACT regulation applicable to 
these sources and because they conform with CAA requirements and EPA 
guidance. New Jersey has also established recordkeeping and testing 
requirements for these sources sufficient to determine compliance with 
the applicable RACT determinations.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a

[[Page 63993]]

substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding this action under section 801 because 
this is a rule of particular applicability.
    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 January 12, 2004. 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.

    Dated: October 22, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart FF--New Jersey

0
2. Section 52.1570 is amended by adding new paragraph (c)(73) to read 
as follows:


Sec.  52.1570  Identification of plan.

* * * * *
    (c) * * *
    (73) Revisions to the State Implementation Plan submitted by the 
New Jersey Department of Environmental Protection on January 21, 1998, 
June 12, 1998 and April 26, 1999; and a letter which notified EPA of a 
revised permit limit submitted by the New Jersey Department of 
Environmental Protection on February 21, 2001.
    (i) Incorporation by reference:
    (A) Conditions of Approval Documents (COAD) or modified prevention 
of significant deterioration (PSD) permit: The following facilities 
have been issued COADs or modified PSD permit by New Jersey:
    (1) American Ref-Fuel Company/Essex County Resource Recovery 
Facility, Newark, Essex County, NJ PSD permit modification dated July 
29, 1997. Incorporation by reference includes only the NOX 
emission limits in section A.6 of the July 29, 1997 PSD permit.
    (2) Co-Steel Corporation's (formerly New Jersey Steel Corporation) 
electric arc furnace/melt shop and billet reheat furnace, Sayreville, 
Middlesex County, NJ COAD approval dated September 3, 1997.
    (3) Co-Steel Raritan Corporation's electric arc furnace/ladle 
metallurgy system and billet reheat furnace, Perth Amboy, Middlesex 
County, NJ COAD approval dated June 22, 1998.
    (4) Homasote Company's natural gas dryer (wet fibreboard mat 
dryer), West Trenton, Mercer County, NJ COAD approval dated October 19, 
1998.
    (5) Milford Power Limited Partnership's combined cycle cogeneration 
facility, Milford, Hunterdon County, NJ COAD approval dated August 21, 
1997.
    (6) University of Medicine and Dentistry of New Jersey's 
cogeneration units and Cleaver Brooks non-utility boilers, Newark, 
Essex County, NJ COAD dated June 26, 1997.
    (7) Roche Vitamins Inc's cogeneration facility and Boiler No. 1, 
Belvidere, Warren County, NJ COAD dated June 10, 1998. The cogeneration 
facility consists of one reciprocal engine (21.5 MW) and one heat 
recovery steam generator (HRSG) equipped with a duct burner (Boiler No. 
6).
    (8) Township of Wayne, Mountain View Water Pollution Control 
Facility's sewage sludge incinerators, Passaic County, NJ permit 
revision dated December 21, 2000.
    (ii) Additional information--Documentation and information to 
support NOX RACT facility-specific emission limits, 
alternative emission limits, or repowering plan in three SIP revisions 
addressed to Regional Administrator Jeanne M. Fox from New Jersey 
Commissioner Robert C. Shinn, Jr. and one letter addressed to Acting 
Regional Administrator William J. Muszynski from Dr. Iclal Atay, Chief 
Bureau of Air Quality Engineering dated:

(A) January 21, 1998 SIP revision for two sources,
(B) June 12, 1998 SIP revision for one source,
(C) April 26, 1999 SIP revision for four sources,
(D) February 21, 2001 for a revised permit limit for one source.

[FR Doc. 03-28212 Filed 11-10-03; 8:45 am]
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