[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Proposed Rules]
[Pages 22768-22771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10469]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2019-0164; FRL-9993-70-Region 2] Approval of Air Quality 
Implementation Plans;


New Jersey; Determination of Attainment for the 1971 Sulfur 
Dioxide National Ambient Air Quality Standard; Warren County 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to make 
the determination that the Warren County Sulfur Dioxide 
(SO2) Nonattainment Area has attained the 1971 
SO2 primary and secondary National Ambient Air Quality 
Standard (NAAQS). This action does not constitute a redesignation to 
attainment. The Warren County Nonattainment Area will remain 
nonattainment for the 1971 primary and secondary NAAQS until EPA 
determines that the Area meets the Clean Air Act (CAA) requirements for 
redesignation to attainment, including an approved maintenance plan. If 
the EPA finalizes this rule, certain attainment planning requirements 
will be suspended for so long as the area remains in attainment of the 
NAAQS. This action is being taken under the CAA.

DATES: Written comments must be received on or before June 19, 2019.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2019-0164 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, (212) 637-3702, or by 
email at [email protected].

I. Background

a. Nonattainment Designation

    The EPA designated all of Warren County, New Jersey as attainment 
for the 1971 SO2 primary and secondary NAAQS on March 3, 
1978 (43 FR 8962). On December 31, 1987 (52 FR 49408), the EPA 
redesignated portions of Warren County as nonattainment for both the 
primary and secondary 1971 SO2 NAAQS at the request of the 
State of New Jersey (the State) to revise the air quality designation 
for the area identified in the State's request. EPA issued a minor 
correction to the

[[Page 22769]]

redesignation on March 14, 1988 (53 FR 8182).
    The 1971 SO2 NAAQS consisted of two primary standards 
for the protection of public health and one secondary standard for the 
protection of public welfare. The primary SO2 NAAQS 
addressed 24-hour average and annual average ambient SO2 
concentrations. The secondary standard addressed 3-hour average ambient 
SO2 concentrations. The level of the annual SO2 
standard was 0.03 parts per million (ppm) (or 80 micrograms per cubic 
meter ([mu]g/m\3\)) not to be exceeded in a calendar year. See 40 CFR 
50.4(a). The level of the 24-hour standard was 0.14 ppm (or 365 [mu]g/
m\3\), not to be exceeded more than once per calendar year. See 40 CFR 
50.4(b). The level of the secondary SO2 standard is a 3-hour 
standard of 0.5 ppm (or 1300 [mu]g/m\3\), not to be exceeded more than 
once per calendar year. See 40 CFR 50.5(a).
    The EPA subsequently finalized a revised, more stringent 
SO2 primary NAAQS that included a shorter 1-hour averaging 
period on June 2, 2010.\1\ The 2010 SO2 primary standard was 
set at a level of 75 parts per billion (ppb) (or 196.4 [mu]g/m\3\) 
based on the 3-year average of the annual 99th percentile of daily 
maximum 1-hour average SO2 concentrations. See 40 CFR 
50.17(a)-(b). The EPA provided that the 24-hour and annual standards 
were to be revoked for all areas one year after their individual 
designations under the 2010 primary NAAQS, except for areas previously 
designated nonattainment that did not have an approved SIP for the new 
1-hour standard. See 40 CFR 50.4(e). The 3-hour secondary NAAQS remains 
in effect. The EPA designated \2\ all of New Jersey, including Warren 
County, for the new primary, one hour 75 ppb 2010 SO2 NAAQS 
as attainment/unclassifiable on December 21, 2017.
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    \1\ See 75 FR 35520, June 22, 2010.
    \2\ See 83 FR 1098, January 9, 2018.
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    The EPA initially designated all of Warren County, which is part of 
the Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality 
Control Region (AQCR), as ``better than national standards'' (otherwise 
known as ``attainment'') for the 1971 primary and secondary 
SO2 NAAQS on March 3, 1978 (43 FR 8962). On April 30, 1986 
and June 26, 1986, the New Jersey Department of Environmental 
Protection (NJDEP) submitted a request to EPA to revise the air quality 
designation for parts of Warren County from ``attainment'' to 
``nonattainment'' with respect to the 1971 primary and secondary 
SO2 NAAQS. The EPA revised the designations for those parts 
of Warren County to ``does not meet standards'' (otherwise known as 
``nonattainment'') based on the State's request under section 107 of 
the CAA and the EPA's assessment of air dispersion screening modeling 
performed by the NJDEP and others that showed portions of Warren County 
were in violation of the NAAQS.
    The boundaries of the nonattainment area were based on the results 
of New Jersey's Valley screening model analysis to determine the impact 
from the Martins Creek Generating Station (i.e., Martins Creek), 
located in Northampton, Pennsylvania (PA) and other nearby sources, to 
elevated terrain in Warren County out to 14 kilometers from Martins 
Creek. New Jersey modeled eight existing major sources \3\ at the time 
in the AQCR using worst-case meteorology in the Valley screening model 
analysis. The emission rates for the Pennsylvania sources included in 
the modeling dwarfed those from the New Jersey facilities; emissions 
from the Pennsylvania sources were up to two orders of magnitude higher 
than those from New Jersey facilities. The highest emission rates were 
from Martins Creek, and the Portland Generating Station (i.e., 
Portland), which was also located in Northampton, PA.
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    \3\ Pennsylvania sources evaluated were Martins Creek, 
Metropolitan Edison (later known as Portland Generating Station), 
Bethlehem Steel, Coplay Cement, Hercules Cement, and Lone Star. New 
Jersey sources were Hoffman LaRoche and Ingersoll-Rand.
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    The December 31, 1987 nonattainment redesignation for Warren County 
included the entire Townships of Harmony, Oxford, White, and Belvidere, 
and portions of Liberty \4\ and Mansfield \5\ Townships. See 52 FR at 
49411, 53 FR 8182, and 40 CFR 81.331. The remaining portion of Warren 
County remained designated as attainment. The designated nonattainment 
area included impacted areas in New Jersey only as determined by the 
Valley screening modeling and did not include the areas in PA where the 
large contributing sources were located such as the Martins Creek and 
Portland facilities.
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    \4\ Portions of Liberty south of UTM coordinate N4522 and West 
of UTM E505 (See 53 FR 8182, March 14, 1988).
    \5\ Portions of Mansfield west of UTM E505 (See 53 FR 8182, 
March 14, 1988).
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    Since the December 1987 redesignation, SO2 emissions 
have been reduced considerably from contributing sources due to the 
shut-down of coal-fired boilers at Martins Creek and Portland. Martins 
Creek coal fired units were shut down in September 2007 (and removed 
approximately one year later). Portland coal-fired units were shut down 
in June 2013 (Unit 2), and May 2014 (Unit 1). Further background 
information can be found in the Technical Support Document (TSD) for 
this rulemaking, located in the docket.
    New Jersey was required to submit an attainment SIP to the EPA 
within 18 months \6\ of November 15, 1990, or May 15, 1992. The Warren 
County Nonattainment Area was required to attain the NAAQS within five 
years \7\ after November 15, 1990. Therefore, the Warren County 
SO2 Nonattainment Area's attainment date was November 15, 
1995.
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    \6\ CAA Sec.  191(b).
    \7\ CAA Sec.  192(b).
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    On June 14, 2018, the Center for Biological Diversity, Center for 
Environmental Health, and Sierra Club (CBD) filed suit against the EPA 
in the U.S. District Court for the Northern District of California 
seeking to compel the EPA to, among other things, determine that New 
Jersey had failed to submit a required SIP for the New Jersey portion 
of the Northeast Pennsylvania-Upper Delaware Valley Interstate Air 
Quality Control Region (part) nonattainment area, and amended that 
complaint on December 17, 2018. See Center for Biological Diversity, et 
al., v. Wheeler, Civ. No. 18-cv-3544-YGR (N.D. Cal.). This case is 
still pending.
    The NJDEP submitted a request on August 17, 2018 for the EPA to 
make the determination that the Warren County SO2 
Nonattainment Area had attained the 1971 primary and secondary 
SO2 NAAQS (Warren County SO2 Clean Data Request). 
This request can be found in the docket for this rulemaking.

b. The EPA's Clean Data Policy

    Following enactment of the CAA Amendments of 1990, EPA promulgated 
its interpretation of the requirements for implementing the NAAQS in 
the general preamble for the Implementation of Title I of the CAA 
Amendments of 1990 (General Preamble). See 57 FR 13498, 13564 (April 
16, 1992). In 1995, based on the interpretations in the General 
Preamble of CAA sections 171, 172, and 182, EPA set forth what has 
become known as its ``Clean Data Policy'' for the 1-hour ozone 
NAAQS.\8\ EPA's Clean Data Policy represents the Agency's 
interpretation that certain nonattainment area planning requirements of 
part D of the CAA are suspended for areas that are attaining

[[Page 22770]]

the NAAQS. The specific requirements that are suspended by a 
determination of attainment, also known as a Clean Data Determination 
(CDD), include those measures that are designed to help an area that is 
not attaining the standard plan for and achieve attainment, i.e., the 
attainment demonstration, reasonably available control measures (RACM), 
reasonable further progress measures, and contingency measures for 
failure to meet deadlines for RFP and attainment by the attainment 
date.
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    \8\ See Memorandum from John S. Seitz, Director, Office of Air 
Quality Planning Standards, ``RFP, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' May 10, 1995.
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    EPA has applied this interpretation of the CAA to the 
implementation of nearly every criteria pollutant in individual area 
notice-and-comment rulemakings suspending certain attainment-planning 
requirements,\9\ in national implementation rules for ozone and 
particulate matter NAAQS,\10\ and in the most recent implementation 
guidance document for sulfur dioxide \11\. EPA's Clean Data Policy 
interpretation has been upheld by multiple courts.\12\ When states 
request that the EPA make a CDD of a designated SO2 NAAQS 
nonattainment area, the EPA will determine whether an area has attained 
the NAAQS based on air quality monitoring data (when available) and air 
quality dispersion modeling information for the affected area as 
necessary. A CDD does not constitute a formal redesignation to 
attainment. If the EPA subsequently determines that an area is no 
longer attaining the standard, those requirements that were suspended 
by the CDD once again apply.
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    \9\ See, e.g., 69 FR 21717 (April 22, 2004) (San Francisco Bay 
Area, 1-hour ozone); 75 FR 27944 (May 19, 2010) (Coso Junction, 
California, PM10); 78 FR 66280 (November 5, 2013) 
(Bellefontaine, Ohio, Pb).
    \10\ 70 FR 71612 (November 29, 2005) (Final Rule to Implement 
the [1997] 8-Hour Ozone National Ambient Air Quality Standard-Phase 
2); 72 FR 20586 (April 25, 2007) (Clean Air Fine Particle 
Implementation Rule); 80 FR 12264 (March 6, 2015) (Implementation of 
the 2008 National Ambient Air Quality Standards for Ozone: State 
Implementation Plan Requirements); 81 FR 58010 (August 24, 2016) 
(Fine Particulate Matter National Ambient Air Quality Standards: 
State Implementation Plan Requirements).
    \11\ Guidance for 1-Hour SO2 Nonattainment Area SIP 
Submissions (April 2014).
    \12\ See, e.g., NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); 
Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996).
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II. Summary of New Jersey CDD Request and the EPA Analysis

    In its August 17, 2018 CDD request, the NJDEP provided several 
analyses to demonstrate that the Warren County SO2 
Nonattainment Area's air quality is meeting the 3-hour, 24-hour, and 
annual 1971 SO2 NAAQS. The information submitted includes 
ambient air quality data and interpretive analysis for air monitoring 
sites located in the vicinity of the Warren County Nonattainment Area 
and recorded into the EPA's Air Quality System (AQS); ambient air 
quality data from a special study (i.e., Warren County Air Monitoring 
Project) within the Warren County Nonattainment Area; and 
SO2 emissions trends both within Warren County and from 
principal sources associated with the SO2 nonattainment 
designation. Additionally, New Jersey provided a list of existing SIP-
approved measures and other federally enforceable measures, pursuant to 
permitting requirements under the CAA, that apply to SO2 
sources both within the Warren County Nonattainment Area, and to 
principal sources associated with the 1987 SO2 nonattainment 
designation under the 1971 NAAQS.
    In our analysis, the EPA considered an air dispersion modeling 
study performed in the late 1990s to evaluate the impacts of Martins 
Creek, Portland, and other sources in the Warren County Nonattainment 
Area. The EPA also considered SO2 emissions trends, and 
control measures both within Warren County and from the primary 
contributing sources. Additionally, EPA considered ambient air quality 
data from the Columbia, NJ; Chester, NJ; and Easton, PA air monitoring 
sites in AQS; as well as from the Warren County Air Monitoring Project 
Special Study. Finally, the EPA also evaluated, and considered New 
Jersey's analysis to estimate SO2 concentrations in the 
Warren County Nonattainment Area based on the interpolation of data 
from the Columbia, NJ; Chester, NJ; and Easton, PA air monitoring 
sites.
    The primary emission sources that caused violations of the 1971 
SO2 NAAQS, namely Martins Creek and Portland, have 
dramatically reduced emissions. Martins Creek, which in 1990 emitted 
33,300 tons of SO2 per year, has shut down its coal-fired 
boilers, and the remaining oil-fired boilers are currently emitting an 
average of 88 tons of SO2 per year. Portland, which in 1990 
emitted 25,400 tons of SO2 per year, has shut down its coal 
units, and is currently emitting less than 0.5 tons of SO2 
per year. No other source in the area emits more than 15 tons of 
SO2 per year. Modeling conducted in June 1999 showed that 
attainment could be assured with only slight reductions in then 
allowable emissions, indicating the dramatic subsequent reductions in 
the emissions of Martins Creek and Portland have caused the area now to 
attain the 1971 standards. In the current absence of significant 
sources in the area, the monitoring data that is available from various 
sites within Warren County and neighboring counties may be considered 
indicative of current air quality. These monitors show concentrations 
well below the 1971 NAAQS
    A detailed summary of the EPA's review and rationale for this 
proposed CDD may be found in the TSD, located in the docket. Based on 
the EPA's analysis, the EPA agrees with New Jersey that the area is 
meeting attainment and is proposing to make the determination that the 
Warren County Nonattainment Area has attained the 3-hour, 24-hour, and 
annual 1971 SO2 NAAQS.

III. Proposed Action

    The EPA proposes to make the determination that the Warren County 
Nonattainment Area has attained the 3-hour, 24-hour, and annual 1971 
SO2 NAAQS. This proposed ``Clean Data Determination'' is 
based on air quality monitoring data, air quality dispersion modeling 
information, as well as other supporting information indicated in the 
proposal. If the EPA finalizes this determination that the area has 
attained the 3-hour, 24-hour, and annual 1971 SO2 NAAQS, it 
would suspend the requirements for the State to submit a reasonable 
further progress plan, attainment demonstration, contingency measures 
and any other planning SIP relating to attainment of the 3-hour, 24-
hour, and annual 1971 SO2 NAAQS for so long as the Warren 
County Nonattainment Area continues to meet each NAAQS. Although these 
requirements would be suspended, the EPA would not be precluded from 
acting upon these elements at any time if submitted to the EPA for 
review and approval.
    Issuance of a CDD would not constitute a redesignation of the 
Warren County Nonattainment Area to attainment for the 3-hour, 24-hour, 
and annual 1971 SO2 NAAQS under CAA section 107(d)(3). 
Neither does the proposed CDD involve approving any maintenance plan 
for the Warren County Nonattainment Area, nor does it serve as a 
determination that the Warren County Nonattainment Area has met all the 
requirements for redesignation under the CAA; any such redesignation 
would require, among other things, that the attainment is attributable 
to permanent and enforceable measures. Therefore, the designation 
status of the Warren County Nonattainment Area will remain 
nonattainment for the 3-hour, 24-hour, and annual 1971 SO2 
NAAQS until such time as the EPA takes final rulemaking action to 
determine that the Warren County Nonattainment Area meets the CAA

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requirements for redesignation to attainment. The EPA is soliciting 
public comments on the issues discussed in this document. Public 
comments will be considered before the EPA takes final action.

IV. Statutory and Executive Order Reviews

    This action proposes to make an attainment determination based on 
air quality data and other information would, if finalized, result in 
the suspension of certain Federal requirements and would not impose any 
additional requirements. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action under Executive Order 12866;
     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 1985, 
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 CAA; and
     Does not provide the 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, the attainment determination would not apply on any 
Indian reservation land or in any other area where the EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Sulfur oxides, Reporting and 
recordkeeping requirements.

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

    Dated: May 1, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.
[FR Doc. 2019-10469 Filed 5-17-19; 8:45 am]
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