[Federal Register Volume 70, Number 126 (Friday, July 1, 2005)]
[Proposed Rules]
[Pages 38068-38071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13056]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. R02-OAR-2005-NJ-0001, FRL-7931-8]


Approval and Promulgation of Implementation Plans; Reasonably 
Available Control Technology for Oxides of Nitrogen for a Specific 
Source in the State of New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency is proposing to approve a 
revision to the State Implementation Plan (SIP) for ozone submitted by 
the State of New Jersey. This SIP revision consists of a source-
specific reasonably available control technology (RACT) determination 
for controlling oxides of nitrogen from the cogeneration facility 
operated by Schering Corporation. This action proposes an approval of 
the source-specific RACT determination that was made by New Jersey in 
accordance with provisions of its regulation to help meet the national 
ambient air quality standard for ozone. The intended effect of this 
proposed rule is to approve source-specific emission limitations 
required by the Clean Air Act.

DATES: Comments must be received on or before August 1, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2005-NJ-0001 by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material 
in EDocket (RME), EPA's electronic public docket and comment system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    3. E-mail: [email protected].
    4. Fax: (212) 637-3901.
    5. Mail: ``RME ID Number R02-OAR-2005-NJ-0001'', Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

[[Page 38069]]

    6. Hand Delivery or Courier. Deliver your comments to: Raymond 
Werner, Chief, Air Programs Branch, Environmental Protection Agency, 
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.
    Instructions: Direct your comments to Regional Material in EDocket 
(RME) ID Number R02-OAR-2005-NJ-0001. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://docket.epa.gov/rmepub/, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI or otherwise protected 
through Regional Material in EDocket (RME), regulations.gov, or e-mail. 
The EPA RME Web site and the federal regulations.gov Web site are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in hard copy at the Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866. EPA requests that 
if at all possible, you contact the contact listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Richard Ruvo for specific questions on 
New Jersey's NOX RACT SIP revisions; Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 617-4014 ([email protected]).

SUPPLEMENTARY INFORMATION:

Overview

    The Environmental Protection Agency is proposing to approve the New 
Jersey State Department of Environmental Protection's (New Jersey's) 
source-specific reasonably available control technology (RACT) 
determination for controlling oxides of nitrogen (NOX from 
the cogeneration facility operated by Schering Corporation (Schering).
    The following tables of contents describes the format for this 
SUPPLEMENTARY INFORMATION section:

I. EPA's Proposed Action
    A. What Action Is EPA Proposing Today?
    B. Why Is EPA Proposing This Action?
    C. What Are the Clear Air Act Requirements for NOX 
RACT?
    D. How Has Schering Complied With the Act Requirements for 
NOX RACT Since 1995?
    E. What Is EPA's Evaluation of New Jersey's SIP Revision?
II. New Jersey's SIP Revision
    A. What Are New Jersey's NOX RACT Requirements?
    B. What Are New Jersey's Facility-Specific NOX RACT 
Requirements?
    C. When Was New Jersey's RACT Determination Proposed and 
Adopted?
    D. When Was New Jersey's SIP Revision Submitted to EPA?
III. Conclusion
IV. Statutory and Executive Order Reviews

I. EPA's Proposed Action

A. What Action Is EPA Proposing Today?

    EPA is proposing an approval of New Jersey's revision to the ozone 
State Implementation Plan (SIP) submitted to EPA on March 31, 2005. 
This SIP revision relates to New Jersey's NOX RACT 
determination for Schering's heat recovery steam generator (HRSG) with 
duct burner for the cogeneration facility located in Union, Union 
County.

B. Why Is EPA Proposing This Action?

    EPA is proposing this action to:
     Give the public the opportunity to submit comments on 
EPA's proposed action, as discussed in the DATES and ADDRESSES sections
     Fulfill New Jersey's and EPA's requirements under the 
Clean Air Act (the Act)
     Make New Jersey's RACT determination federally-
enforceable.

C. What Are the Clean Air Act Requirements for NOX RACT?

    The Act requires certain states to develop RACT regulations for 
major stationary sources of NOX and to provide for the 
implementation of the required measures as soon as practicable but no 
later than May 31, 1995. Under the Act, the definition of major 
stationary source is based on the tons per year (tpy) of air pollution 
a source emits and the quality of the air in the area of the source. In 
ozone transport regions, attainment/unclassified areas as well as 
marginal and moderate ozone nonattainment areas, a major stationary 
source for NOX is considered to be one which emits or has 
the potential to emit 100 tpy or more of NOX and is subject 
to the requirements of a moderate nonattainment area. New Jersey is 
within the Northeast ozone transport region, established by section 
184(a) of the Act, and has defined a major stationary source for 
NOX as a source which has the potential to emit 25 tpy, the 
level set for severe ozone nonattainment areas. Consequently, all major 
stationary sources of NOX within the State of New Jersey are 
required to implement RACT no later than May 31, 1995. For detailed 
information on the Act requirements for NOX RACT see the 
Technical Suppport Document (TSD), prepared in support of today's 
proposed action. A copy of the TSD is available upon request from the 
EPA Regional Office listed in ADDRESSES section or it can be viewed at 
http://docket.epa.gov/rmepub/.

D. How Has Schering Complied With the Act Requirements for 
NOX RACT since 1995?

    On June 3, 1996, New Jersey adopted the New Jersey Open Market 
Emission Trading (OMET) program, Subchapter 30 of Chapter 27, Title 7 
of the New Jersey Administrative Code. The OMET program permitted 
regulated facilities to purchase ``discrete emission reduction'' (DER) 
credits for volatile organic compounds (VOC) and NOX to meet 
VOC and NOX emission limits set forth in Subchapters 16 and 
19 of Chapter 27, Title 7 of the New Jersey Administrative Code, 
respectively.

[[Page 38070]]

    On January 9, 2001, EPA published in the Federal Register, a 
proposed conditional approval of the OMET program. (66 FR 1796) After 
discussion with New Jersey, on June 24, 2002, EPA sent New Jersey a 
letter reiterating a number of concerns about the OMET program. On 
August 13, 2002, New Jersey responded to this letter indicating that it 
concluded the OMET program should be terminated. On October 18, 2002, 
EPA published, in the Federal Register (67 FR 64347), its determination 
to withdraw a prior proposed conditional approval of the OMET program.
    On December 16, 2002, New Jersey held a public meeting discussing 
options for repealing the OMET program. EPA's withdrawal of its 
proposed approval and this meeting were indications that sources could 
no longer rely on the OMET program to satisfy the Act requirements for 
VOC and NOX RACT. On February 25, 2004, New Jersey adopted 
rules, repealing the OMET program and adopted rule repeals, and 
amendments to rules governing other programs impacted by the repeal of 
the OMET program, including Subchapter 19 (the state NOX 
RACT rules). 36 New Jersey Register 1791(a). On that date, New Jersey 
also adopted amendments and new rules to replace provisions provided by 
the OMET program. The effective date of the repeals, amendments and new 
rules is April 5, 2004 and the operative date is April 25, 2004.
    On April 26, 2004, EPA notified, by letter, New Jersey that 
``sources should be advised that if they rely on the extended 
compliance deadlines or compliance options provided in the revised 
NJDEP rule, they would not comply with the federally-approved 
regulations, which do not provide for any such deadline extensions.'' 
By copy of that letter, EPA notified sources identified as OMET credit 
users in the revised rule about ``unresolved issues regarding that rule 
and the probability of SIP disapproval.'' This letter also refers to a 
September 18, 2003 letter in which EPA provided comments to New Jersey, 
which identified serious deficiencies in the originally proposed 
regulation.
    While the State of New Jersey has adopted new state NOX 
RACT rules that allowed Schering and other sources until April 25, 2005 
to achieve compliance with State NOX RACT rules, the 
federally-approved NOX RACT rule in the SIP requires 
compliance with the federal RACT regulations by May 31, 1995. Since the 
new state NOX RACT rules have not been and are not likely to 
be federally-approved and included in the SIP, the federally 
enforceable compliance date for NOX RACT remains May 31, 
1995.
    On May 27, 2004, EPA held a meeting with Schering and several other 
owners/operators of sources copied on the April 26, 2004 letter to New 
Jersey to discuss compliance options. Schering attended the meeting and 
advised EPA that it would submit a timely proposal for compliance. On 
July 15, 2004, Schering submitted for EPA and New Jersey review, a 
proposal for an alternative emission limit (AEL) to comply with both 
Federal and State NOX RACT. On January 19, 2005, EPA sent 
Schering a Notice of Violation describing its violations of Subchapter 
19. On April 11, 2005, EPA issued Schering a Compliance Order which 
required Schering to comply with the proposed NOX RACT 
emissions limits set forth in its AEL application, submitted on July 
15, 2004, until the limits are approved by the State. Following state 
approval, Schering shall comply with the state-approved AEL, until it 
is federally-approved, and thereafter comply with the NOX 
RACT pursuant to the federally-approved AEL. Today's proposed action is 
the next step in the federal approval process.

E. What Is EPA's Evaluation of New Jersey's SIP Revision?

    EPA has determined New Jersey's SIP revision for New Jersey's 
NOX RACT determination for Schering's HRSG with duct burner 
is consistent with New Jersey's NOX RACT regulation and 
EPA's guidance. EPA's basis for evaluating New Jersey's SIP revision, 
is whether it meets the SIP requirements described in section 110 of 
the Act. EPA thinks that New Jersey's SIP revision will not interfere 
with any applicable requirement concerning attainment and reasonable 
further progress, or any other applicable requirement of the Act.
    After reviewing New Jersey's SIP revision submittal, EPA found it 
administratively and technically complete. EPA has determined that the 
NOX emission limits identified in New Jersey's Conditions of 
Approval document represents RACT for Schering's HRSG with duct burner. 
The conditions contained in the Conditions Of Approval Document 
currently specify emission limits, work practice standards, and 
testing, monitoring, and recordkeeping/reporting requirements. These 
conditions are consistent with the NOX RACT requirements 
specified in Subchapter 19 and conform to EPA NOX RACT 
guidance. More specifically, EPA proposes to approve the current 
Conditions of Approval document which includes an alternative emission 
limit for the HRSG/duct burner when operating in the fresh air fired 
mode and when firing natural gas. The limit will be the lower of 0.17 
lbs/MMBtu, or 115% of the average of three one-hour stack tests, each 
performed over a consecutive 60-minute period. Please note there may be 
other requirements, such as adequate monitoring, which States and 
sources will need to provide for, through the Title V permitting 
process. The TSD prepared in support of this proposed action, contains 
a detailed description of New Jersey's submittal and EPA's evaluation.

II. New Jersey's SIP Revision

A. What Are New Jersey's NOX RACT Requirements?

    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 was 
effective on December 20, 1993. New Jersey submitted Subchapter 19 to 
EPA, as a revision to the SIP, on November 15, 1993 and on January 27, 
1997, the EPA final approval action on Subchapter 19 was published in 
the Federal Register (62 FR 3804).
    On March 24, 1995, New Jersey adopted amendments to Subchapter 19 
and submitted them to EPA for approval as a SIP revision on June 21, 
1996. On March 29, 1999, the EPA final approval action on the revised 
Subchapter 19 was published in the Federal Register (64 FR 14832).

B. What Are New Jersey's Facility-Specific NOX RACT 
Requirements?

    Section 19.13 of New Jersey's regulation establishes a procedure 
for a case-by-case determination of what represents RACT for a major 
facility, item of equipment of source operation. This procedure applies 
to facilities considered major for NOX which are in one of 
the following two situations: (1) Except for non-utility boilers, if 
the NOXfacility contains any source operation or item of 
equipment of a category not listed in section 19.2 which has the 
potential to emit more than 10 tons of NOX per year, or (2) 
if the owner or operator of a source operation or item of equipment of 
a category listed in section 19.2 seeks approval of an alternative 
maximum allowable emission rate. Today's proposal relates to a facility 
in the second type of situation discussed above.

[[Page 38071]]

    New Jersey's procedure requires either submission of a 
NOX control plan if specific emission limitations do not 
apply to the specific source, or submission of a request for an 
alternative maximum allowable emission rate if specific emission 
limitations do apply to the specific source. In either case, the 
owners/operators must include a technical and economic feasibility 
analysis of the possible alternative control measures. Also, in either 
case, Subchapter 19 requires that New Jersey establish emission limits 
which rely on a RACT determination specific to the facility. The 
resulting NOX control plan or alternative maximum allowable 
emission rate must be submitted to EPA to approval as a SIP revision.

C. When Was New Jersey's RACT Determination Proposed and Adopted?

    New Jersey's RACT determination was proposed on October 23, 2004, 
with a public comment period ending November 24, 2004. New Jersey 
adopted the RACT determination on March 9, 2005.

D. When Was New Jersey's SIP Revision Submitted to EPA?

    New Jersey's SIP revision was submitted to EPA on March 31, 2005. 
EPA determined the submittal administratively and technically complete 
on April 25, 2005.

III. Conclusion

    EPA is proposing to approve the New Jersey SIP revision for an 
alternative RACT emission limit determination for Schering's HRSG with 
duct burner. This SIP revision contains source-specific NOX 
emission limitations for Schering. EPA will consider all information 
submitted prior to any final rulemaking action as a supplement or 
amendment to the SIP submittal.
    EPA is requesting public comment on the issues discussed in today's 
action. EPA will consider all public comments before taking final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting comments to the EPA Regional Office listed in 
the ADDRESSES section.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposed to approve state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed rule also does not have tribal implications because 
it will not have a 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 proposes to approve a state rule implementing a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This proposed 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 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 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 proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxides, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: June 22, 2005.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. 05-13056 Filed 6-30-05; 8:45 am]
BILLING CODE 6560-50-M