[Federal Register Volume 78, Number 69 (Wednesday, April 10, 2013)]
[Proposed Rules]
[Pages 21296-21302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08238]



[[Page 21296]]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2013-0130, FRL-9800-4]


Approval and Promulgation of Implementation Plans; New Jersey; 
Infrastructure SIP for the 1997 8-Hour Ozone and the 1997 and 2006 Fine 
Particulate Matter Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve most elements of New Jersey's State Implementation Plan (SIP) 
revisions submitted to demonstrate that the State meets the 
requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) 
for the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS). EPA 
is proposing to conditionally approve certain elements of the 
submittals, as well as to find that certain elements of New Jersey's 
submittals do not meet section 110(a)(2) requirements with existing 
State rules. Section 110(a) of the CAA requires that each state adopt 
and submit a SIP for the implementation, maintenance and enforcement of 
each NAAQS promulgated by the EPA and is commonly referred to as an 
infrastructure SIP.

DATES: Comments must be received on or before May 10, 2013.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2013-0130, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: 212-637-3901.
     Mail: Richard Ruvo, Acting Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, Acting 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 Docket ID No. EPA-R02-OAR-
2013-0130. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, 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 www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, 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 email comment 
directly to EPA without going through www.regulations.gov your email 
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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://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. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Paul Truchan, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. What action is EPA proposing?
II. What is the background information?
III. What is a section 110(a)(1) and (2) SIP?
IV. What elements are required under section 110(a)(1) and (2)?
V. What did New Jersey submit?
VI. How has the State addressed the elements of the section 
110(a)(1) and (2) ``infrastructure'' provisions?
VII. What action is EPA taking?
VIII. Statutory and Executive Order Reviews

I. What Action is EPA Proposing?

    EPA is proposing to approve, conditionally approve, and disapprove 
elements of the State of New Jersey Infrastructure SIP as meeting the 
section 110(a) infrastructure requirements of the Clean Air Act (CAA) 
for the 1997 ozone, 1997 PM2.5 and 2006 PM2.5 
National Ambient Air Quality Standards (NAAQS). As explained below, the 
State has the necessary infrastructure, resources, and general 
authority to implement the 1997 8-hour ozone and 1997 and 2006 
PM2.5 standards, except where specifically noted.

II. What is the Background Information?

    On July 18, 1997, EPA promulgated new and revised NAAQS for 8-hour 
ozone (62 FR 38856) and PM2.5 (62 FR 38652). The ozone NAAQS 
are based on 8-hour average concentrations. The 8-hour averaging period 
replaced the previous 1-hour averaging period, and the level of the 
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm.\1\ The 
new PM2.5 NAAQS established a health-based standard of 15.0 
micrograms per cubic meter ([mu]g/m\3\) based on a 3-year average of 
annual mean PM2.5 concentrations, and a 24-hour standard of 
65 [mu]g/m\3\ based on a 3-year average of the 98th percentile of 24-
hour concentrations. EPA strengthened the 24-hour PM2.5 
NAAQS from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ on October 17, 2006 (71 FR 
61144).\2\
---------------------------------------------------------------------------

    \1\ EPA issued a revised 8-hour ozone standard on March 27, 2008 
(73 FR 16436). On September 22, 2011, EPA clarified that the current 
ozone standard is set at 75 ppb. EPA is not addressing the 2008 
ozone NAAQS in this rulemaking.
    \2\ EPA issued a revised PM2.5 standard on January 
15, 2013 (78 FR 3086). EPA is not addressing the 2012 
PM2.5 NAAQS in this rulemaking.
---------------------------------------------------------------------------

    Section 110(a) of the CAA requires states to submit State 
Implementation Plans (SIPs) that provide for the implementation, 
maintenance, and enforcement of new or revised NAAQS within three years 
following the promulgation of such NAAQS.

[[Page 21297]]

III. What is a section 110(a)(1) and (2) SIP?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIPs. Section 110(a)(2) lists specific elements that states must 
meet for ``infrastructure'' SIP requirements related to a newly 
established or revised NAAQS. Sections 110(a)(1) and (2) of the CAA 
requires, in part, that states submit to EPA plans to implement, 
maintain and enforce each of the NAAQS promulgated by EPA. EPA 
interprets this provision to require states to address basic SIP 
requirements including emission inventories, monitoring, and modeling 
to assure attainment and maintenance of the standards. By statute, SIPs 
meeting the requirements of section 110(a)(1) and (2) are to be 
submitted by states within three years after promulgation of a new or 
revised standard. These SIPs are commonly called infrastructure SIPs. 
In 1997, EPA promulgated the 8-hour ozone primary and secondary NAAQS 
and a new annual and 24-hour PM2.5 NAAQS. Intervening 
litigation over the 1997 standards caused a delay in SIP submittals. In 
2006, EPA promulgated a new 24-hour PM2.5 NAAQS.

IV. What elements are required under section 110(a)(1) and (2)?

    The infrastructure requirements are listed in EPA's October 2, 
2007, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' and September 
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards.'' \3\ The 14 
elements required to be addressed are as follows: (1) Emission limits 
and other control measures; (2) ambient air quality monitoring/data 
system; (3) program for enforcement of control measures; (4) interstate 
transport; (5) adequate resources; (6) stationary source monitoring 
system; (7) emergency power; (8) future SIP revisions; (9) consultation 
with government officials; (10) public notification; (11) prevention of 
significant deterioration (PSD) and visibility protection; (12) air 
quality modeling/data; (13) permitting fees, and (14) consultation/
participation by affected local entities.
---------------------------------------------------------------------------

    \3\ ``Guidance on SIP Elements Required Under Sections 110(a)(1) 
and (2) for the 1997 8-hour Ozone and PM2.5 National 
Ambient Air Quality Standards'' at http://www.epa.gov/ttn/oarpg/t1/memoranda/110a_sip_guid_fin100207.pdf ``Guidance on SIP Elements 
Required Under Sections 110(a)(l) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS)'' http://www.epa.gov/ttn/oarpg/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.
---------------------------------------------------------------------------

    Two elements identified in section 110(a)(2) are not governed by 
the 3 year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within 3 years after promulgation of a new or revised NAAQS, but rather 
due at the time that the nonattainment area plan requirements are due 
pursuant to section 172. See 77 FR 46354 (August 3, 2012); 77 FR 60308 
(October 3, 2012) (footnote 1). These requirements are: (1) Submissions 
required by section 110(a)(2)(C) to the extent that subsection refers 
to a permit program as required in part D Title I of the CAA, and (2) 
submissions required by section 110(a)(2)(I) which pertain to the 
nonattainment planning requirements of part D, Title I of the CAA. As a 
result, this action does not address the above infrastructure elements 
related to section 110(a)(2)(C) or 110(a)(2)(I).
    This action also does not address the requirements of section 
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 NAAQS, 
since they had been addressed in previous rulemakings. See October 1, 
2007 (72 FR 55666). Additionally, this action does not address the 
requirements of section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS, which was addressed in a previous EPA 
rulemaking. See July 20, 2011 (76 FR 43153).

Scope of Infrastructure SIPs

    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'') at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(``director's discretion''); (iii) existing provisions for minor source 
NSR programs that may be inconsistent with the requirements of the CAA 
and EPA's regulations that pertain to such programs (``minor source 
NSR''); and, (iv) existing provisions for PSD programs that may be 
inconsistent with current requirements of EPA's ``Final NSR Improvement 
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 
(June 13, 2007) (``NSR Reform''). A detailed rationale for why these 
four substantive issues are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Approval and Promulgation of Air Quality Implementation Plans; 
Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure 
SIP Requirements for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' in the section entitled, 
``What is the scope of this final rulemaking?'' (76 FR 41075 at 41076-
41079).

V. What did New Jersey Submit?

    EPA is acting on two New Jersey SIP submittals, dated February 25, 
2008 and January 15, 2010, which address the section 110 infrastructure 
requirements for the three NAAQS: The 1997 8-hour ozone NAAQS, the 1997 
annual and 24-hour PM2.5 NAAQS, and the 2006 24-hour 
PM2.5 NAAQS.

February 25, 2008 SIP submission

    New Jersey's section 110 infrastructure submittal was submitted by 
the New Jersey Department of Environmental Protection (NJDEP) on 
February 25, 2008 and addressed the 1997 8-hour ozone and fine 
particulate matter (PM2.5) NAAQS. Effective April 28, 2008, 
the submittal was determined to be complete for all elements except 
110(a)(2)(C). 73 FR 16205 (March 27, 2008). New Jersey's February 2008 
section 110 submittal demonstrates how the State, where applicable, has 
a plan in place that meets the requirements of section 110 for the 1997 
8-hour ozone and PM2.5 NAAQS. This plan references the 
current New Jersey Air Quality SIP, the New Jersey Statutes Annotated 
(NJSA) and/or the New Jersey Administrative Code (NJAC). The NJSA, and 
NJAC (air pollution control regulations) referenced in the submittal 
are publicly available. Prior to submitting to EPA, NJDEP held a public 
hearing, on January 28, 2008, on New Jersey's 110 infrastructure 
submittal and accepted written comments until January 31, 2008. The New 
Jersey SIP was subject to public notice and comment and a public 
hearing when adopted. New Jersey air pollution control regulations that 
have been previously approved by EPA and incorporated into the New 
Jersey SIP can be found at 40 CFR 52.1605 and are posted on the 
Internet at: http://www.epa.gov/region02/air/sip/nj_reg.htm.

January 15, 2010 SIP submission

    New Jersey's section 110 infrastructure submittal for the 2006

[[Page 21298]]

PM2.5 24-hour NAAQS was submitted by the New Jersey 
Department of Environmental Protection (NJDEP) on January 15, 2010, and 
the submittal was deemed complete July 15, 2010.
    EPA's evaluation of both submittals is detailed in the ``Technical 
Support Document for EPA's Proposed Rulemaking for the New Jersey State 
Implementation Plan Revision: State Implementation Plan Revision For 
Meeting the Infrastructure Requirements In the Clean Air Act Dated 
February 2008 and January 2010'' (TSD). As explained in the ADDRESSES 
section of this action, the TSD is available in the docket (EPA-R02-
OAR-2013-0130) for this action and at the EPA Region 2 Office.

VI. How has the State addressed the elements of the section 110(a)(1) 
and (2) ``infrastructure'' provisions?

    A. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limits and other control 
measures, means, or techniques, and schedules for compliance. EPA notes 
that the specific nonattainment area plan requirements of section 
110(a)(2)(I) are subject to the timing requirement of section 172, not 
the timing requirement of section 110(a)(1). New Jersey's Air Pollution 
Control Act (Pub. L.1954), codified at NJSA 26:2C, provides the NJDEP 
with power to formulate and promulgate, amend and repeal codes and 
rules and regulations, preventing, controlling and prohibiting air 
pollution throughout the State at NJSA 26:2C-8. The federally 
enforceable New Jersey SIP contains enforceable emission limits and 
other control measures. EPA is proposing to determine that New Jersey 
has met the requirements of section 110(a)(2)(A) of the Act with 
respect to the 1997 8-hour ozone and the 1997 and 2006 PM2.5 
NAAQS.
    B. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to include provisions to provide for establishment and 
operation of ambient air quality monitors, to monitor, compile and 
analyze ambient air quality data, and to make these data available to 
EPA upon request. New Jersey, under its authority provided in NJSA 
26:2C-9.a, operates and maintains a network of ambient air quality 
monitors and submits the data collected to EPA. New Jersey has 
submitted annual air monitoring network plans which have been approved 
by EPA. The most recent was approved by EPA on March 29, 2013. EPA is 
proposing to determine that the New Jersey SIP meets the requirements 
of section 110(a)(2)(B) of the Act with respect to the 1997 8-hour 
ozone and the 1997 and 2006 PM2.5 NAAQS.
    C. Program for enforcement of control measures: Section 
110(a)(2)(C) requires states to have a plan that includes a program 
providing for enforcement of all SIP measures and the regulation of the 
modification and construction of any stationary source, including a 
program to meet Prevention of Significant Deterioration (PSD) and minor 
source new source review.
    The NJDEP is authorized by NJSA 26:2C-19 to enforce its control 
measures and the air permitting program for stationary sources. The 
minor source permitting and enforcement programs operate under NJAC 
7:27 and 7:27A, respectively. EPA proposes to find that the State has 
adequate authority and regulations to insure that SIP approved control 
measures are enforced for the 1997 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS.
    New Jersey's is currently subject to 40 CFR 52.1603 with respect to 
the PSD permit program required by Part C of the Act. As a result, a 
Federal Implementation Plan (FIP) includes 40 CFR 52.21 as part of the 
New Jersey applicable State plan. New Jersey has been delegated 
authority to implement 40 CFR 52.21 and has been successfully 
implementing the program. Because New Jersey does not have its own 
State adopted rule, its infrastructure submissions are not approvable 
with respect to this element. However, the State is not subject to 
mandatory sanctions solely as a result of this type of infrastructure 
SIP deficiency, since the SIP deficiency is neither with respect to a 
submittal that is required under part D nor in response to a SIP call 
under section 110(k)(5) of the CAA. Moreover, the requirements for 
which the State is subject to the FIP are already satisfied by the 
incorporation by reference of the provisions of 40 CFR 52.21 into a FIP 
for New Jersey, and so EPA has no additional FIP obligations under 
section 110(c).
    EPA proposes to find that the State has adequate authority and 
regulations to ensure that SIP-approved control measures are enforced. 
EPA also finds that, based on the delegation of 40 CFR 52.21, New 
Jersey has the delegated authority to regulate the construction of new 
or modified stationary sources to meet the PSD program requirements. 
Though New Jersey satisfies the requirement to regulate the 
construction of new or modified sources through PSD delegation, since 
New Jersey's PSD program is a federally delegated program, New Jersey 
has not satisfied the requirements of sections 110(a)(2)(C) and (J) for 
all three NAAQS to have a state adopted program and the currently 
existing FIP remains in place.
    D. Interstate transport: Section 110(a)(2)(D) is divided into two 
subsections, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 
110(a)(2)(D)(i) consists of two subsections (I) and (II), each of which 
has two ``prongs.'' The two prongs under 110(a)(2)(D)(i)(I) prohibit 
any source or other type of emissions activity within the State from 
emitting any air pollutants in amounts which will (prong 1) contribute 
significantly to nonattainment in any other state with respect to any 
primary or secondary NAAQS, and (prong 2) interfere with maintenance by 
any other state with respect to any primary or secondary NAAQS. The two 
prongs under 110(a)(2)(D)(i)(II) prohibit any source or other type of 
emissions activity within the state from emitting any air pollutants in 
amounts which will interfere with measures required to be included in 
the applicable implementation plan for any other state under part C 
(prong 3) to prevent significant deterioration of air quality or (prong 
4) to protect visibility.
    Section 110(a)(2)(D)(ii) addresses interstate and international 
pollution abatement, and requires SIPs to include provisions insuring 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement.
    In this action for New Jersey, with respect to section 
110(a)(2)(D)(i), we are only addressing prong 3 (i.e., interference 
with PSD) and prong 4 (i.e., to protect visibility) of 
110(a)(2)(D)(i)(II). EPA previously took rulemaking action on prong 1 
and prong 2 on October 1, 2007 (72 FR 55666) and July 20, 2011 (76 FR 
43153), respectively. For prong 3, as discussed previously under (C) 
(Program for enforcement of control measures), New Jersey is currently 
subject to a PSD FIP. A state's infrastructure SIP submittal cannot be 
considered for approvability with respect to prong 3 until EPA has 
issued final approval of that state's PSD SIP or, alternatively, has 
issued final approval of a SIP that EPA has otherwise found adequate to 
prohibit interference with other state's measures to prevent 
significant deterioration of air quality. Therefore, we are proposing 
to disapprove New Jersey's 110(a) submissions for the 1997 8-hour ozone 
and 1997 and 2006 PM2.5NAAQS for prong 3 of 
110(a)(2)(D)(i)(II) because New Jersey is currently subject to a PSD 
FIP and does not have a PSD SIP. This disapproval will not trigger any 
sanctions or additional FIP obligation, since a FIP is already in 
place. This action will have no discernible effect on

[[Page 21299]]

the implementation of the PSD program in New Jersey, as the State is 
implementing a well-established PSD program through EPA delegation.
    For prong 4, New Jersey has met its obligations pursuant to section 
110(a)(2)(D)(i)(II) for visibility protection for all three NAAQS 
through its Regional Haze SIP submittals, which were approved by EPA on 
January 3, 2012, Federal Register (77 FR 19). The regional haze rule 
specifically requires that a state participating in a regional planning 
process include all measures needed to achieve its apportionment of 
emission reduction obligations agreed upon through that process. Thus, 
New Jersey's approved regional haze SIP will ensure that emissions from 
sources within the State are not interfering with measures to protect 
visibility in other states. Therefore, EPA proposes to find for the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS that NJDEP 
satisfies the section 110(a)(2)(D)(i)(II) requirement for visibility.
    Regarding section 110(a)(2)(D)(ii), which relates to interstate and 
international pollution abatement, as noted above, New Jersey is 
subject to a PSD FIP. States relying on the Federal PSD program 
requirements of 40 CFR 52.21(q), (which provide for notification of 
affected state and local air agencies) to satisfy this requirement have 
programs that are considered technically deficient and not approvable. 
Therefore, we are proposing to disapprove New Jersey's submissions for 
infrastructure element 110(a)(2)(D)(ii) for the 1997 8-hour ozone and 
1997 and 2006 PM2.5 NAAQS. This disapproval will not trigger 
any sanctions or additional FIP obligation. It should be noted, that 
New Jersey has no pending obligations under section 115 or 126(b) of 
the Act and satisfies these requirements of section 110(a)(2)(D)(ii) 
for the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.
    E. Adequate resources: Section 110(a)(2)(E) requires each state to 
provide (i) necessary assurances that the state will have adequate 
personnel, funding, and authority under state law to carry out the SIP 
(and is not prohibited by any provision of federal or state law from 
carrying out the SIP or portion thereof), (ii) requires that the state 
comply with the requirements respecting state boards under section 128, 
and (iii) necessary assurances that, where the state has relied on a 
local or regional government, agency, or instrumentality for the 
implementation of any SIP provision, the state has responsibility for 
ensuring adequate implementation of such SIP provision.
    New Jersey has adequate authority, under NJSA 13:1D-9, to carry out 
its SIP obligations with respect to the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS. New Jersey receives sections 103 and 105 grant 
funds through its Performance Partnership Grant along with required 
State-matching funds to provide funding necessary to carry out its SIP 
requirements. Therefore, EPA proposes to find New Jersey has sufficient 
resources to meet the requirements of section 110(a)(2)(E)(i) for the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.
    Congress added section 128 in the 1977 amendments. Titled ``State 
boards,'' section 128 provides in relevant part: ``(a) Not later than 
the date one year after August 7, 1977, each applicable implementation 
plan shall contain requirements that: (1) Any board or body which 
approves permits or enforcement orders under this chapter shall have at 
least a majority of members who represent the public interest and do 
not derive any significant portion of their income from persons subject 
to permits or enforcement orders under this chapter, and (2) any 
potential conflicts of interest by members of such board or body or the 
head of an executive agency with similar powers be adequately 
disclosed.'' New Jersey does not have a state board that approves 
permits or enforcement orders under the CAA. Instead, permits and 
enforcement orders are approved by the State's Commissioner of 
Environmental Protection. Thus, the requirements of subsection 
128(a)(1) are not applicable to New Jersey. New Jersey is subject to 
the requirements of section 128(a)(2). In its SIP submission New Jersey 
cited NJSA 52:13D-12 et seq. which addresses the conflict of interest 
requirement. EPA proposes to conditionally approve the infrastructure 
SIP in fulfilling the requirements of section 110(a)(2)(E)(ii) for the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS provided the 
State submits, for approval into the SIP, those statutes or regulations 
necessary to substantively meet the requirements of CAA section 
128(a)(2).
    Section 110(a)(2)(E)(iii) requires states to provide necessary 
assurances that, where the state has relied on a local or regional 
government, agency or instrumentality for the implementation of any 
provision of the SIP, the state has responsibility for ensuring 
adequate implementation of the SIP provision. The NJDEP has the 
authority to delegate inspection and enforcement efforts for various 
regulations under the County Environmental Health Act (NJSA 26:3A2-21 
et seq.). EPA in the past identified a deficiency in meeting this 
requirement. See 40 CFR 52.1579 Intergovernmental cooperation.
    While New Jersey has the authority to delegate responsibilities to 
county or local governments to implement certain SIP responsibilities, 
the information provided in both infrastructure SIP submittals does not 
identify the specific organizations that will participate in 
developing, implementing, and enforcing the plan and the 
responsibilities of such organizations. EPA proposes to conditionally 
approve the infrastructure SIP with regard to the requirements of 
section 110(a)(2)(E)(iii). The State must identify the county or local 
governments or entities such as metropolitan planning organizations 
(MPOs) that participate in the SIP planning efforts, identify the 
county or local governments or entities that have been delegated 
responsibilities to implement or enforce portions of the SIP, and 
provide copies of the agreements or memoranda of understanding (MOUs) 
between the State and the county or local governments or entities. 
Since it is EPA's understanding that this deficiency involves 
information that exists but was not provided in the SIP submittal, EPA 
proposes to conditionally approve section 110(a)(2)(E)(iii) for the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS. In the 
alternative, should New Jersey provide this information before we take 
final rulemaking, EPA will fully approve section 110(a)(2)(E)(iii) and 
remove 40 CFR 52.1579.
    F. Stationary source monitoring system: Section 110(a)(2)(F) 
requires states to establish a system to monitor emissions from 
stationary sources and to submit periodic emission reports. The NJDEP 
has the authority pursuant to NJSA 26:2C-9.2 to require emissions 
monitoring of stationary sources before an operating permit is issued 
or renewed. NJDEP has adopted regulations to implement the federal 
requirements for stationary source emissions monitoring and reporting 
in NJAC 7:27-8 and 7:27-22.
    The NJDEP has the authority pursuant to NJSA 26:2C-9 to require 
emissions reports from stationary sources and to allow emission 
information to be made available to the public.
    EPA previously disapproved inclusion of NJSA 26:2C-9 into the SIP 
finding that, in some circumstances, it could prohibit the disclosure 
of emission data to the public. See 40 CFR 52.1575. In 1995 New Jersey 
revised NJSA 26:2C-9, specifically NJSA 26:2C-9b.(4) to limit what 
information could

[[Page 21300]]

be considered confidential and specifically added the phrase ``other 
than actual or allowable air contaminant emissions'' to clarify what 
cannot be considered confidential. N.J. ALS 188. The same legislation, 
established authority for New Jersey to require individuals responsible 
for operations that emit air pollution, to file emission statements. 
The NJDEP has adopted and EPA has approved NJAC 7:27, Subchapter 21--
``Emission Statements'' as part of the applicable SIP. See 69 FR 46104 
(August 2, 2004).
    Based on the revisions to the New Jersey Air Pollution Control Act 
and the adoption of the Subchapter 21--``Emission Statements,'' EPA is 
proposing to find that New Jersey has met the requirements of section 
110(a)(2)(F) for the 1997 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS and is proposing to revoke 40 CFR 52.1575.
    G. Emergency power: Section 110(a)(2)(G) requires states to provide 
for authority to address activities causing imminent and substantial 
endangerment to public health, including contingency plans to implement 
the emergency episode provisions in their SIPs.
    For PM2.5, EPA's guidance dated September 25, 2009 \4\ 
provides clarification that states that have air quality control 
regions identified as either Priority I, Priority IA or Priority II by 
the ``Prevention of Air Pollution Emergency Episodes'' rules at 40 CFR 
51.150 must develop emergency episode contingency plans. States are 
required to develop emergency episode plans for any area that has 
monitored and recorded 24-hour PM2.5 levels greater than 
140.4 [micro]g/m\3\ since 2006. A state that has never exceeded this 
level since 2006 is considered to be Priority III. See 40 CFR 
51.150(f). In accordance with the guidance, for a Priority III area a 
state may certify that it has appropriate general emergency powers to 
address PM2.5-related episodes, and is not required to adopt 
specific emergency episode plans at this time, given the existing 
monitored levels.
---------------------------------------------------------------------------

    \4\ See Guidance on SIP Elements Required Under Sections 
110(a)(l) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS), 
from William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards, dated September 25, 
2009.
---------------------------------------------------------------------------

    Since 2006 air-quality monitors in New Jersey show that 
PM2.5 levels have been below the 140.5 [micro]g/m\3\ 
threshold. New Jersey certified in its infrastructure submittals that 
it should be classified as a Priority III region and, therefore, 
emergency episode plans for PM2.5 are not required. 
Therefore, New Jersey has met the requirements of section 110(a)(2)(G) 
for both the 1997 and 2006 PM2.5 NAAQS.
    In general and for the 1997 ozone standard, the section 
110(a)(2)(G) requirements are addressed by New Jersey's Air Pollution 
Emergency Control Act (NJSA 26:2C-26 et seq.), which is implemented 
through NJAC 7:27-12 ``Prevention and Control of Air Pollution 
Emergencies.'' While the New Jersey SIP contains Subchapter 12, it is 
not the current version of the State rule. In addition, Subchapter 12 
requires that the NJDEP publish in the New Jersey Register the 
emergency criteria that will be used in making alerts, warnings or 
emergencies. NJDEP has not provided the criteria. Therefore, EPA is 
proposing to condition its approval based on NJDEP submitting, for 
approval into the SIP, the current version of Subchapter 12 and the 
emergency criteria levels that will be used.
    H. Future SIP revisions: Section 110(a)(2)(H) requires states to 
have the authority to revise their SIPs in response to changes in the 
NAAQS, availability of improved methods for attaining NAAQS, and in 
response to an EPA finding that the SIP is substantially inadequate.
    The NJDEP is given the authority by NJSA 13:1D-9 to formulate 
comprehensive policies ``for the conservation of the natural resources 
of the State, the promotion of environmental protection and the 
prevention of pollution of the environment of the State.'' EPA proposes 
to find that the State has adequate authority to develop and implement 
plans and programs that fulfills the requirements of section 
110(a)(2)(H) for the 1997 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS.
    I. Nonattainment Area Plans Under Part D: Section 110(a)(2)(I) of 
the CAA requires that each such plan shall ``in the case of a plan or 
plan revision for an area designated as a nonattainment area, meet the 
applicable requirements of part D of this subchapter (relating to 
nonattainment areas).'' EPA is not evaluating nonattainment-related 
provisions, the NSR program required by part D in section 110(a)(2)(C) 
and measures for attainment required by section 110(a)(2)(I), as part 
of the infrastructure SIPs because, as discussed elsewhere in this 
proposal, these submittals have been addressed by other SIP revisions 
which EPA has or will be acting on in other rulemakings.
    J. Consultation With Government Official, Public Notification, PSD, 
and Visibility Protection: Section 110(a)(2)(J) requires states to meet 
the applicable requirements of CAA section 121, relating to 
consultation, CAA section 127, relating to public notification, and CAA 
title I, part C, relating to the prevention of significant 
deterioration of air quality and visibility protection.

Consultation With Government Officials

    Section 121 requires a process for consultation with local 
governments and Federal Land Managers carrying out NAAQS implementation 
requirements. EPA finds that the 110(a) submittals from New Jersey, and 
the cited authority of NJSA 26:2C-8 and 9, meet the requirements of 
section 110(a)(2)(J) for consultation with government officials.

Public Notification

    Section 127 requires that the state plan include measures to 
effectively notify the public of any NAAQS exceedances, advise the 
public of health hazards associated with such pollution, and include 
measures to enhance public awareness of measures that can be taken to 
prevent exceedances.
    New Jersey is a partner participating in EPA's AIRNOW and 
EnviroFlash Air Quality Alert programs. (See www.airnow.gov.) EPA is 
proposing to find that New Jersey's SIP submittal has met the public 
notification requirements of section 110(a)(2)(J) for the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS. See NJSA 26:2C-9.

PSD

    Section 110(a)(2)(J) also requires states to meet applicable 
requirements of Part C related to prevention of significant 
deterioration and visibility protection. EPA evaluated this requirement 
in the context of section 110(a)(2)(C) with respect to permitting (see 
discussion under (C) (program for enforcement of control measures)). 
EPA interprets this section 110 provision relating to visibility as not 
being ``triggered'' by a new NAAQS because the visibility requirements 
in part C are not changed by a new NAAQS.
    New Jersey is currently subject to a PSD FIP, as discussed under 
(C) (Program for enforcement of control measures). The approvability of 
a state's PSD program in its entirety is essential to the approvability 
of the infrastructure SIP with respect to section 110(a)(2)(J). Until 
the State provides such a program, the New Jersey infrastructure SIP is 
not approvable with respect to section 110(a)(2)(J). Therefore, EPA 
proposes to disapprove New Jerseys' infrastructure SIP with respect to 
the PSD sub-element of 110(a)(2)(J) for the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS. However, as noted in sections C and D, 
above, this disapproval does not impose any sanctions or new FIP 
obligations.

[[Page 21301]]

    K. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that SIPs provide for air quality modeling for predicting effects on 
air quality of emissions from any NAAQS pollutant and submission of 
such data to EPA upon request.
    The infrastructure submittals from New Jersey reference regulations 
that have provisions for performing air-quality modeling, including 
modeling for attainment plans, permits, and redesignation requests. 
NJAC 7:27-8.5 and 22.8. EPA proposes to find that the State has 
adequate authority to perform air quality modeling that fulfills the 
requirements of section 110(a)(2)(K).
    L. Permitting fees: Section 110(a)(2)(L) requires SIPs to require 
each major stationary source to pay permitting fees to cover the cost 
of reviewing, approving, implementing and enforcing a permit, until 
such time as the SIP fee requirement is superseded by EPA's approval of 
the State's Title V operating permit program. EPA's full approval of 
the title V program for New Jersey became effective on November 30, 
2001. 66 FR 63168 (December 5, 2001). Before EPA can grant full 
approval, a state must demonstrate the ability to collect adequate 
fees. New Jersey's title V program included a demonstration that the 
State will collect a fee from title V sources above the presumptive 
minimum in accordance with 40 CFR 70.9(b)(2)(i). The State collects 
sufficient fees to administer its title V permit program. EPA proposes 
to find that the State has meet the requirements for section 
110(a)(2)(L).
    M. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. EPA proposes to find that the State has adequate 
authority and procedures that fulfills the requirements of section 
110(a)(2)(M). See NJSA 26:2C-8 and 52:14B.

VII. What action is EPA taking?

    EPA is proposing to approve New Jersey's submittals as fully 
meeting the infrastructure requirements for the 1997 8-hour ozone and 
the 1997 and 2006 PM2.5 NAAQS for the following section 
110(a)(2) elements and sub-elements: (A), (B), (C) (as it relates to 
the enforcement of SIPs), (D)(i)(II) prong 4 (visibility), (E)(i), (F), 
(H), (J) (consultation), (J) (public notification), (K), (L), and (M). 
EPA is also proposing to find that New Jersey has met the 
confidentiality requirements of section 110(a)(2)(F) and is proposing 
to remove 40 CFR 52.1574 and 40 CFR 52.1575.
    EPA is proposing to disapprove New Jersey's submittals for the 1997 
8-hour ozone and 1997 and 2006 PM2.5 NAAQS section 110(a)(2) 
sub-elements: (C), prong 3 of (D)(i)(II), and (J) as they relate to the 
State's lack of a state adopted PSD program, as well as (D)(ii), which 
relates to interstate and international pollution abatement and PSD. 
However, these disapprovals will not trigger any sanctions or 
additional FIP obligation since a PSD FIP is already in place.
    EPA is proposing to conditionally approve New Jersey's submittals 
for the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS for 
the following 110(a)(2) elements and sub-elements: E(ii) (conflict of 
interest provisions), E(iii) (delegations), and for the 1997 8-hour 
ozone element (G) (emergency powers). New Jersey must commit in writing 
on or before May 10, 2013 to correct the deficiencies discussed above. 
New Jersey must then correct the deficiencies and submit them to EPA 
within one year of EPA's final action on this SIP action. Some of the 
deficiencies involve providing information that EPA is familiar with 
and believes currently exists, but was not included in the State's 
submittal. Should New Jersey provide this information before we take 
final rulemaking, EPA is also proposing in the alternative to fully 
approve: Section 110(a)(2)(E)(ii), section 110(a)(2)(E)(iii) and remove 
40 CFR 52.1579, and section 110(a)(2)(G).
    Under section 110(k)(4) of the Act, EPA may conditionally approve a 
plan based on a commitment from a State to adopt specific enforceable 
measures by a date certain, but not later than one year from the date 
of approval. If EPA conditionally approves the commitment in a final 
rulemaking action, the State must meet its commitment to complete 
requirements of each section 110(a)(2) element listed above. If New 
Jersey fails to do so for any section 110(a)(2) element, our 
conditional approval of that element will, by operation of law, become 
a disapproval for New Jersey one year from the date of final approval. 
EPA will notify the State by letter that this action has occurred. At 
that time, this commitment will no longer be a part of the approved SIP 
for New Jersey. EPA subsequently will publish a document in the Federal 
Register notifying the public that the conditional approval 
automatically converted to a disapproval. If New Jersey meets its 
commitments within the applicable time frame, the conditionally 
approved submission will remain a part of the SIP or SIPs until EPA 
takes final action approving or disapproving the element in question.
    If EPA disapproves a State's new submittal, the conditionally 
approved section 110(a)(2) element will also be disapproved at that 
time. If EPA approves the submittal, the section 110(a)(2) element will 
be fully approved in its entirety and replace the conditionally 
approved 110(a)(2) element in the SIP. Finally, if, based on 
information received before EPA takes final action on this proposal, 
EPA determines that it cannot issue a final conditional approval for 
one or more elements for which EPA has proposed a conditional approval, 
then EPA will instead issue a disapproval for such elements.
    As discussed in section I, above, EPA is not acting on New Jersey's 
submittal as it relates to nonattainment provisions, the NSR program 
required by part D in section 110(a)(2)(C) and the measures for 
attainment required by section 110(a)(2)(I), as part of the 
infrastructure SIPs because these submittals have been addressed by 
other SIP revisions which EPA has or will be acting on in other 
rulemakings.
    EPA is soliciting public comments on the issues discussed in this 
proposal. These comments will be considered before EPA takes final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional Office 
listed in the ADDRESSES section of this Federal Register, or by 
submitting comments electronically, by mail, or through hand delivery 
or courier following the directions in the ADDRESSES section of this 
Federal Register.

VIII. 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.);

[[Page 21302]]

     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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: April 1, 2013.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2013-08238 Filed 4-9-13; 8:45 am]
BILLING CODE 6560-50-P