[Federal Register Volume 77, Number 1 (Tuesday, January 3, 2012)]
[Rules and Regulations]
[Pages 19-22]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33666]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2011-0607; FRL-9611-2]


Approval and Promulgation of Air Quality Implementation Plans; 
State of New Jersey; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
revision to the New Jersey State Implementation Plan, submitted by the 
State of New Jersey. The revision addresses Clean Air Act requirements 
and EPA's rules for states to prevent and remedy future and existing 
anthropogenic impairment of visibility in mandatory Class I areas 
through a regional haze program. EPA's approval includes but is not 
limited to New Jersey's plans to implement Reasonable Progress Goals, 
Best Available Retrofit Technologies on eligible sources, as well as 
New Jersey's Subchapter 9, Sulfur in Fuels rule and source-specific SIP 
revisions.

DATES: Effective Date: This rule is effective on February 2, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2011-0607. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., 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 through 
www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region II Office, Air Programs Branch, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. This Docket Facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The Docket telephone number is (212) 637-4249.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, State Implementation 
Planning Section, Air Programs Branch, EPA Region 2, 290 Broadway, New 
York, New York 10007-1866. The telephone number is (212) 637-4249. Mr. 
Kelly can also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking?
II. Did NJ adopt BART requirements consistent with EPA's proposal?
III. What comments did EPA receive in response to its proposal?
IV. What are EPA's conclusions?
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is approving a revision to New Jersey's State Implementation 
Plan (SIP) submitted on July 28, 2009, that addressed progress toward 
reducing regional haze for the first implementation period ending in 
2018. The initial submittal was supplemented by a December 9, 2010 
submittal transmitting New Jersey's adopted regulation Subchapter 9 
Sulfur in Fuel, lowering the sulfur content in fuel oil, a March 2, 
2011 submittal which included Best Available Retrofit Technologies 
(BART) determinations and controls, and a December 7, 2011 submittal 
including Air Pollution Control Operating Permits for sources that 
require BART reductions, as listed in the regulatory section of this 
action.
    EPA determined that New Jersey's Regional Haze Plan contains the 
emission reductions needed to achieve New Jersey's share of emission 
reductions that were determined to be reasonable through the regional 
planning process. Furthermore, New Jersey's Regional Haze Plan ensures 
that emissions from the State will not interfere with the Reasonable 
Progress Goals (RPGs) for neighboring States' Class I areas. Thus, EPA 
is approving into the SIP the Regional Haze Plan submitted by New 
Jersey on July 28, 2009 and supplemented on December 9, 2010, March 2, 
2011, and December 7, 2011 as satisfying the requirements of the Clean 
Air Act. EPA is taking this action pursuant to Section 110 of the Act.

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    For additional details on EPA's analysis and findings the reader is 
referred to the proposal published in the August 11, 2011 Federal 
Register (76 FR 49711) and a more detailed discussion as contained in 
the Technical Support Document which is available on line at http://www.regulations.gov, Docket number EPA-R02-OAR-2011-0607.

II. Did NJ adopt BART requirements consistent with EPA's proposal?

    On December 7, 2011, New Jersey submitted to EPA the adopted 
supplement, of the March 3, 2011 draft which EPA parallel processed in 
the August 11, 2011 Federal Register. The December 7, 2011 supplement 
consists of an addendum to New Jersey's BART Technical Support 
Document, final permit modifications to satisfy BART, public notice 
affidavits and other administrative documents. This supplement to the 
SIP is included in the Docket and may be viewed by the reader at 
www.regulations.gov.
    New Jersey did not make any substantive changes to the source 
specific operating permits to incorporate BART other than those 
discussed in EPA's August 11, 2011 proposal. Since no substantial 
changes were made from the proposal, and the SIP revision has been 
adopted by New Jersey and submitted formally to EPA for incorporation 
into the SIP, EPA is approving New Jersey's Regional Haze Plan, 
including BART.

III. What comments did EPA receive in response to its proposal?

    Two comments were received on EPA's August 11, 2011 proposal. The 
first requested that EPA review more closely New Jersey's prescribed 
burning program. New Jersey allows, by permit only, prescribed burning 
in order to reduce the likelihood of larger fires that would reduce 
visibility at Class I areas in New Jersey and other states. EPA 
acknowledges this comment.
    The second comment was from the Pillsbury LLP law firm on behalf of 
B.L. England's Cape May power plant. Pillsbury commented that the plant 
was ready to operate before August 7, 1962 \1\ and was delayed due to 
forces outside the control of facility. Pillsbury submitted extensive 
comments based on its review of the legislative history of this portion 
of the Clean Air Act.
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    \1\ One of the criteria to be classified as BART eligible is 
that the emission unit was in existence on August 7, 1977 and begun 
operation after August 7, 1962 (see section 169A(b)(2)(A) of the Act 
and 40 CFR part 51, appendix Y).
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    New Jersey has determined that the Cape May facility is eligible 
for BART controls whether or not Unit 1 is determined to be BART-
eligible, and EPA supports New Jersey's determination. In addition, the 
Clean Air Act requires states to adopt reasonable controls as necessary 
to make reasonable progress towards improving visibility.
    Based on New Jersey's analysis, the controls New Jersey has 
required for this facility under an existing Administrative Consent 
Order are reasonable and would be enforced on the Cape May facility, 
even if it were not eligible for BART emission controls. EPA agrees 
with New Jersey's determination of emission control requirements for 
this facility.

IV. What are EPA's conclusions?

    EPA has evaluated the proposed revision to the SIP submitted by the 
State of New Jersey that addresses regional haze for the first planning 
period from 2008 through 2018. EPA is approving the revision to the 
SIP, which addresses the Regional Haze requirements of the Clean Air 
Act. This approval includes but is not limited to the Reasonable 
Progress portion of the plan, New Jersey's implementation of Best 
Available Retrofit Technologies on eligible sources, and New Jersey's 
Subchapter 9, Sulfur in Fuels rule.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 March 5, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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

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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, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 13, 2011.
Judith A. Enck,
Regional Administrator, Region 2.

    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)(91) to read 
as follows:


Sec.  52.1570  Identification of plan.

* * * * *
    (c) * * *
    (91) A revision submitted on July 28, 2009, as supplemented on 
December 9, 2010, March 2, 2011 and December 7, 2011, by the New Jersey 
Department of Environmental Protection (NJDEP) that addresses the 
regional haze requirements of Clean Air Act section 169A. The December 
9, 2010 submittal also addresses an element of the PM2.5 SIP 
revision.
    (i) Incorporation by reference:
    (A) Amendments to New Jersey Administrative Code, Title 7, Chapter 
27 (NJAC 7:27) Subchapter 9, ``Sulfur In Fuels,'' Section 9.2 Sulfur 
content standards, with effective date of September 20, 2010 and 
operative date of October 25, 2010.
    (B) The following Air Pollution Control Operating Permit, 
Significant Modifications and Preconstruction Approvals:
    (1) PSEG Fossil LLC Hudson Generating Station dated March 8, 2011, 
Permit BOP110001, Program Interest 12202 for units: U1-OS Summary, U1-
OS1, U1-OS2, U2-OS Summary, U15-OS Summary and U16-OS Summary.
    (2) Chevron Products Company dated March 4, 2011, Permit BOP100001, 
Program Interest 18058 for unit 15, process heaters: OS Summary (E1501 
and E1502).
    (3) ConocoPhillips (Linden City) dated September 21, 2011, Permit 
BOP110001, Program Interest 41805 for unit 3, process heaters: OS 
Summary, OS1-E241, OS2-E243, OS3-E245, OS4-E246, OS5-E247, OS6-E248, 
OS7-E249, OS8-E250, OS11-E242, OS13-E253, and OS15-E258.
    (4) Vineland Municipal Electric Utility--Howard M. Down dated 
September 26, 2011, Permit BOP110001, Program Interest 75507 for units: 
U10-OS Summary, U10-OS2, U10-OS3, and U22-OS Summary.
    (5) BL England Generating Station dated December 16, 2010, Permit 
BOP100003, Program Interest 73242 for units: GR2 U2, U1-OS Summary, U1-
OS1, U2-OS Summary, U2-OS1, U3-OS Summary, U3-OS1, U6-OS Summary, U6-
OS1, U7-OS1, U7-OS2, U7-OS4, U7-OS5, U7-OS6, U7-OS7, U7-OS10, U7-OS11, 
U7-OS12, U8-OS Summary, and U8-OS1.
    (ii) Additional information.
    (A) Letter dated December 9, 2010 from Commissioner Bob Martin, 
NJDEP, to Regional Administrator Judith A. Enck, EPA Region 2, 
submitting the SIP revision containing Subchapter 9.
    (B) December 7, 2011, letter from Director William O'Sullivan, 
NJDEP, to Acting Director John Filippelli, Division of Environmental 
Planning and Protection, EPA Region 2, submitting a supplement to the 
2009 Regional Haze SIP which contains the Best Available Retrofit 
Technology (BART) determinations and enforceable BART emission limits 
for five facilities.

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3. Section 52.1573 is amended by designating the existing paragraph as 
paragraph (a), and adding a new paragraph (b) to read as follows:


Sec.  52.1573  Approval status.

* * * * *
    (b) Visibility protection. EPA approves the Regional Haze SIP 
revision submitted by the New Jersey Department of Environmental 
Protection on July 28, 2009, as supplemented on December 9, 2010, March 
2, 2011 and December 7, 2011 as meeting the requirements of Clean Air 
Act section 169A and 40 CFR 51.308. In particular, EPA approves the New 
Jersey Regional Haze SIP as meeting the requirements of 40 CFR 
51.308(e) regarding Best Available Retrofit Technology and 40 CFR 
51.308(d)(2) and (d)(4)(v) regarding the calculation of baseline and 
natural conditions for the Brigantine Wilderness Area of the Edwin B. 
Forsythe National Wildlife Refuge, and the statewide inventory of 
emissions of pollutants that are reasonably anticipated to cause or 
contribute to visibility impairment in any mandatory Class I Federal 
Area.

0
4. In Sec.  52.1605 the table is amended by revising the entry for 
``Title 7, Chapter 27: Subchapter 9'' 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 9, ``Sulfur in Fuels``.  Sept. 9, 2010.............  1/3/12 [Insert         Sulfur dioxide ``bubble''
                                                                 Federal Register       permits issued by the
                                                                 page citation].        State pursuant to Sec.
                                                                                        9.2 and not waived under
                                                                                        the provisions of Sec.
                                                                                        9.4 become applicable
                                                                                        parts of the SIP only
                                                                                        after receiving EPA
                                                                                        approval as a SIP
                                                                                        revision.
 
                                                  * * * * * * *
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0
5. Section 52.1606 is revised to read as follows:


Sec.  52.1606  Visibility protection.

    (a) The requirements of section 169A of the Clean Air Act are not 
met because the plan does not include approvable procedures meeting the 
requirement of 40 CFR 51.307, New source review, for protection of 
visibility in mandatory Class I Federal areas.
    (b) Regulations for new source review. The provisions of Sec.  
52.28 are hereby

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incorporated and made part of the applicable plan for the State of New 
Jersey.

[FR Doc. 2011-33666 Filed 12-30-11; 8:45 am]
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