[Federal Register Volume 89, Number 72 (Friday, April 12, 2024)]
[Proposed Rules]
[Pages 25841-25849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07775]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2022-0631; FRL-10786-01-R2]
Partial Approval and Partial Disapproval of Air Quality State
Implementation Plans; New Jersey; 2015 Ozone Infrastructure
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove certain elements of a State
Implementation Plan (SIP) revision that New Jersey submitted to
demonstrate that the State satisfies the infrastructure requirements of
section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2015 8-
hour Ozone National Ambient Air Quality Standards (NAAQS). The
infrastructure requirements are designed to ensure that the structural
components of each State's air quality management program are adequate
to meet the State's responsibilities under the CAA. Except as noted,
this SIP revision satisfies the infrastructure requirements of the CAA
for the 2015 ozone NAAQS.
DATES: Written comments must be received on or before May 13, 2024.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2022-0631 at https://www.regulations.gov. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (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 electronically through https://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 https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Edward Linky, Environmental Protection
Agency, Air Programs Branch, Region 2, 290 Broadway, New York, New York
10007-1866, at (212) 637-3764, or by email at [email protected].
SUPPLEMENTARY INFORMATION: The Supplementary Information section is
arranged as follows:
I. What action is the EPA proposing?
II. Background
III. What infrastructure elements are required under section
110(a)(1) and (2)?
IV. What is the EPA approach to review of infrastructure SIP
Submissions?
V. What did the State of New Jersey submit?
VI. How has the State addressed the elements of section 110(a)(1)
and (2)?
VII. Environmental Justice Considerations
VIII. What action is the EPA taking?
IX. Statutory and Executive Order Reviews
I. What Action is the EPA Proposing?
The EPA is proposing to partially approve and partially disapprove
elements of a SIP revision submitted by New Jersey on May 13, 2019,
that address infrastructure SIP (iSIP) requirements for the 2015 8-hour
ozone (2015 ozone) NAAQS. The EPA is proposing to approve the 2015
ozone infrastructure SIP revision for most elements. EPA is proposing
to disapprove the portion of the submission that relates to prevention
of significant deterioration (PSD). As explained more fully below, the
disapproval portion of this action does not begin a new Federal
Implementation Plan (FIP) clock, because the FIP is already in place.
This action does not address the portion of the submission
pertaining to the interstate transport requirements of section
110(a)(2)(D)(i)(I) (otherwise known as the ``good neighbor'' provision)
with respect to the 2008 ozone NAAQS or the 2015 ozone NAAQS, since
each was addressed in a previous EPA rulemaking. See 87 FR 55692
(September 12, 2022) (addressing the good neighbor element of the 2008
ozone NAAQS) and 88 FR 9336, (February 13, 2023) (addressing the good
neighbor element of the 2015 ozone NAAQS).
This action also does not address New Jersey's negative
declaration, demonstrating that no facilities exist in the State that
are applicable to the Control Techniques Guidelines (CTG) for the Oil
and Natural Gas Industry, which was included in this submittal but was
addressed in a separate EPA rulemaking. See 85 FR 29627 (May 18, 2020).
As explained below, the EPA is proposing to find that the State has the
necessary infrastructure, resources, and general authority to implement
the 2015 ozone NAAQS, except where specifically noted.
The EPA is proposing to approve the New Jersey infrastructure SIP
revision for the 2015 ozone NAAQS for section 110(a)(2) infrastructure
elements with the exception of elements, or portions of elements, C, D,
and J as explained below. The proposed approval of the other section
110(a)(2) elements of the iSIP is principally based on the New Jersey
Department of Environmental Protection (NJDEP) having the authority and
resources to develop, enforce and maintain that the elements of an iSIP
are in conformance with the requirements
[[Page 25842]]
of the CAA section 110(a)(1) and (2). EPA proposes to disapprove the
PSD portions of elements (C), D(i)(II), as well as D(ii), and J since
New Jersey, even though it accepted delegation of, and implements, the
Federal PSD program, does not have a SIP-approved PSD program and is
under a Federal Implementation Plan (FIP). See 40 CFR 52.1603. This
determination is explained in Section VI of this document.
II. Background
On October 1, 2015, the EPA promulgated a revision to the ozone
NAAQS.\1\ section 110(a)(1) of the CAA provides the procedural and
timing requirements for SIPs. Section 110(a)(2) of the CAA lists
specific elements that States must meet for SIP requirements related to
a newly established or revised NAAQS. Sections 110(a)(1) and (2) of the
CAA require, in part, that States submit to the EPA plans to implement,
maintain and enforce each of the NAAQS promulgated by the EPA. By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by States within three years after promulgation of
a new or revised standard. The EPA refers to this type of SIP
submission as the ``infrastructure'' SIP because the SIP ensures that
States can implement, maintain and enforce the air standards.
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\1\ National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015). Although the level of the
standard is specified in the units of ppm, ozone concentrations are
also described in parts per billion (ppb). For example, 0.070 ppm is
equivalent to 70 ppb.
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On May 13, 2019, the NJDEP submitted to then Regional
Administrator, Peter D. Lopez, a SIP revision that addresses
infrastructure SIP requirements for the 2015 ozone NAAQS.\2\ The
submittal was deemed complete by operation of law. We propose to
approve all elements of the submittal except a portion of Element (C),
Elements (D)(i)(II) and (ii), and a portion of Element (J), which we
propose to disapprove. New Jersey does not have a SIP-approved PSD
program and therefore has not addressed the PSD permit program
requirements of part C if title I of the CAA. The EPA recognizes,
however, that New Jersey has elected to comply with the Federal PSD
requirements by accepting delegation of the Federal rules and has been
successfully implementing this program for many years. New Jersey is
already subject to a FIP which incorporates by reference the Federal
PSD provisions as codified in 40 CFR 51.21, with the exception of
paragraph (a)(1), into the implementation plan for the State. 40 CFR
52.1603. If the proposed disapproval of these aspects of the submittal
is finalized, no further action is necessary, beyond the FIP which is
in place, until such time as NJDEP submits, and EPA approves, a
revision to its SIP regarding the PSD portions of those elements. The
2015 submission states there is no change to the status of these
elements, and thus those portions are being disapproved.
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\2\ As discussed in section I of this document, the May 2019 SIP
submittal addressed infrastructure requirements related to section
110(a)(2)(D)(i)(I) (i.e., good neighbor provision for the 2008 and
2015 ozone NAAQS, which EPA acted on separately. EPA finalized
disapproval of the good neighbor provision for the 2008 ozone NAAQS.
87 FR 55692 (September 12, 2022). EPA finalized disapproval of the
good neighbor provision for the 2015 ozone NAAQS. 88 FR 9336
(February 13, 2023). The May 2019 SIP submittal also included a
negative declaration from the State that the Control Techniques
Guidelines (CTG) for the Oil and Natural Gas Industry do not pertain
to New Jersey since there are no source operations referenced in the
CTG that are located in New Jersey. The EPA approved the State's
negative declaration at 85 FR 29627 (May 18, 2020).
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The EPA does not anticipate any adverse consequences to New Jersey
if this proposed disapproval of the PSD related portions of New
Jersey's 2015 ozone infrastructure SIP submittal is finalized.
Mandatory sanctions would not apply to New Jersey under CAA section 179
because the failure to submit a PSD SIP is neither required under title
I part D of the CAA, nor in response to a SIP call under section
110(k)(5) of the CAA. The EPA would not be subject to any further FIP
duty because of the PSD FIP that has already been approved and that
addresses the SIP deficiency.
III. What infrastructure elements are required under Sections 110(a)(1)
and (2)?
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. Section 110(a)(2) lists specific elements the SIP must
contain or satisfy. These infrastructure elements include requirements
such as modeling, monitoring, and emissions inventories, which are
designed to ensure attainment and maintenance of the NAAQS. The
elements that are the subject of this action are listed below.
Section 110(a)(2)(A): Emission limits and other control
measures.
Section 110(a)(2)(B): Ambient air quality monitoring/data
system.
Section 110(a)(2)(C): Program for enforcement of control
measures.
Section 110(a)(2)(D): Interstate transport.
Section 110(a)(2)(E): Adequate resources and authority,
conflict of interest, and oversight of local governments and regional
agencies.
Section 110(a)(2)(F): Stationary source monitoring and
reporting.
Section 110(a)(2)(G): Emergency powers.
Section 110(a)(2)(H): Future SIP revisions.
Section 110(a)(2)(J): Consultation with government
officials; public notification; and PSD and visibility protection.
Section 110(a)(2)(K): Air quality modeling/data.
Section 110(a)(2)(L): Permitting fees.
Section 110(a)(2)(M): Consultation/participation by
affected local entities.
A description of how the State has met the requirements of these
elements is more fully described in section VI.
IV. What is the EPA approach to review of infrastructure SIP
submissions?
Due to the ambiguity of some of the language of CAA section
110(a)(2), the EPA believes it is appropriate to interpret these
provisions in the specific context of acting on infrastructure SIP
submissions. The EPA previously provided comprehensive guidance on the
application of these provisions through a guidance document for
infrastructure SIP submissions and through regional actions on
infrastructure submissions.\3\ Unless otherwise noted below, we are
following that existing approach in acting on this submission. In
addition, in the context of acting on such infrastructure submissions,
the EPA evaluates the submitting State's SIP for facial compliance with
statutory and regulatory requirements, not for the State's
implementation of its SIP.\4\ The EPA has other authority to address
issues concerning a State's implementation of its SIP.
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\3\ The EPA explains and elaborates on these ambiguities and its
approach to address them in its ``Guidance on State Infrastructure
Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110
(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\4\ United States Court of Appeals for the Ninth Circuit
decision in Montana Environmental Information Center v. Thomas, 902
F.3d 971 (August 30, 2018).
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V. What did the State of New Jersey submit?
On May 13, 2019, New Jersey requested EPA review and approve a SIP
submittal addressing infrastructure and transport requirements for CAA
section 110(a)(1) and (2) for the 2015 ozone NAAQS; transport
requirements for CAA section 110(a)(2) for the 2008 ozone NAAQS; and a
negative declaration for the Oil and Natural Gas
[[Page 25843]]
Control Techniques Guidelines (CTG). The EPA is acting on the portion
of the New Jersey SIP submittal that addresses infrastructure SIP
requirements for the 2015 ozone NAAQS. As noted previously, the portion
pertaining to the ``good neighbor'' provision with respect to the 2008
and 2015 ozone NAAQS and the negative declaration were addressed
separately.
The New Jersey 2015 ozone NAAQS infrastructure SIP submission
demonstrates how the State, where applicable, has plans in place that
meet the requirements of section 110 (a)(1) and (2) for the 2015 ozone
NAAQS.
The SIP submission includes a certification that the existing New
Jersey SIP contains adequate provisions to address the requirements of
the CAA section 110(a)(1) and (2), with the exception of section
110(a)(2)(D)(i)(I) for the ``good neighbor'' SIP, as it pertains to the
2015 ozone NAAQS. New Jersey certified in the submission that there has
been no change in authority with respect to the infrastructure
requirements for the NJDEP to regulate, carry-out and enforce the 2015
ozone NAAQS.
In its May 2019 submittal, the State indicated that the contents of
the SIP remain the same as those approved for the New Jersey Multi-
Pollutant Infrastructure SIP submitted to EPA on October 17, 2014 (2014
Multi-Pollutant iSIP), except for the changes described in ``Table 1:
Changes to New Jersey's Infrastructure SIP'' of the May 2019 submittal,
which include updates of existing rules. New Jersey's 2014 Multi-
Pollutant iSIP submittal was approved by EPA. 83 FR 24661 (May 30,
2018).
The State's May 13, 2019, submittal is available within the
electronic docket for today's proposed action at www.regulations.gov.
VI. How has the State addressed the elements of section 110(a)(1) and
(2)?
The EPA's evaluation and rationale for proposing action on New
Jersey's Infrastructure SIP for the 2015 ozone NAAQS is discussed
below. The EPA notes that for the proposed approval of several elements
of this action, which were also addressed in New Jersey's 2014 Multi-
Pollutant iSIP and which New Jersey asserts are unchanged, EPA's
rationale for approval is consistent.\5\
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\5\ See 83 FR 24661 (May 30, 2018).
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The State's submission and the EPA's analysis:
Element A--Emissions 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. The submittal indicates that New Jersey has the
necessary authority under the Air Pollution Control Act (APCA) at New
Jersey Statutes Annotated (NJSA) 26:2C-8, 26:2C-9, and 26:2C-19, and
has established enforceable limits for all criteria pollutants in its
rules at NJAC 7:27.
Several times in its submittal New Jersey notes that it has adopted
rule amendments that affect NJAC 7:27 and NJAC 7:27A certifies that
these changes do not affect the State's ability to enforce control
measures or regulate the modification and construction of any
stationary source within the area covered by the SIP as necessary for
the 2015 ozone NAAQS.\6\
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\6\ New Jersey states that the changes are related to Air
Emission Control and Permitting Exceptions, Hazardous Air Pollutant
Reporting Thresholds, and the Clean Air Interstate Rule (CAIR)
Nitrogen Oxides (NOX) Trading Program and the
NOX Budget Trading Program (50 NJR 454(a), January 16,
2018). New Jersey states that these changes are based on New
Jersey's experience with Super Storm Sandy, updated data, and new
methodologies to determine hazardous air pollutant (HAP) thresholds,
changes in Federal requirements regarding State programs to address
emissions of Nitrogen Oxides, and discussions New Jersey has held
with community and environmental groups. New Jersey advises that
rule amendments have also been adopted related to Tertiary Butyl
Acetate (TBAC) emissions reporting, to ensuring consistency between
major and minor permits, and for Gasoline Transfer Operations (49
NJR 3590(a), November 20, 2017).
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The EPA has reviewed the authority identified by New Jersey in its
submittal and is proposing to find that New Jersey has met the
requirements of section 110(a)(2)(A) of the CAA with respect to the
2015 Ozone NAAQS based on the enforceable emission limits and other
control measures identified.
Element B--Ambient Air Quality Monitoring Data System
Section 110(a)(2)(B) requires SIPs to include provisions to provide
for the establishment and operation of ambient air quality monitors, to
monitor, compile, and analyze ambient air quality data, and to make
these data available to the EPA upon request.
New Jersey states that its authority related to Element B remains
the same as that approved for the 2014 Multi-Pollutant iSIP. New Jersey
identifies its authority at NJSA 26:2C-9.a, to conduct ambient air
quality monitoring and to report the results.\7\ New Jersey states that
its annual air quality reports are posted on New Jersey's air quality
monitoring internet site at https://www.njaqinow.net.
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\7\ See 83 FR 24661.
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The EPA is proposing to find that New Jersey has met the
requirements of section 110(a)(2)(B) of the CAA with respect to the
2015 Ozone NAAQS.
Element C--Programs for Enforcement of Control Measures and
Construction or Modification of Stationary Sources
Section 110(a)(2)(C) requires states to have a plan that includes a
program providing for enforcement of all SIP measures, regulation of
minor sources and minor modifications, and the regulation of the
modification and construction of any stationary source, including a
program to meet Prevention of Significant Deterioration (PSD) of Air
Quality. The three sub-elements of Element C are addressed below.
Enforcement of SIP Measures
Statewide enforcement of new and modified sources, minor
modifications of minor sources, and major modifications in areas
designated as an attainment area or as an unclassifiable area for the
2015 Ozone NAAQS, is required by title I of the Clean Air Act part C
(Major Sources of Prevention of Significant Deterioration). New
Jersey's submittal identifies N.J.S.A. 26:2C-9.b and 9.1 and N.J.S.A.
13:1D-9 as its authority for the creation of enforcement and permitting
programs that meet CAA requirements. New Jersey's submittal further
explains that the enforcement of all control measures, including the
air permitting program for regulating stationary sources, is governed
by N.J.S.A. 26:2C-19. New Jersey states that enforcement and permitting
programs operate under rules designated in NJAC 7:27 and 7:27A. EPA
proposes to find that New Jersey has adequate authority to conduct
enforcement programs for the 2015 ozone NAAQS.\8\
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\8\ See 83 FR 24661 (May 30, 2018).
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Regulation of Minor Sources and Minor Modifications
New Jersey's submittal asserts that its authority at N.J.S.A.
26:2C-9.b and 9.1 and N.J.S.A. 13:1D-9 provide for the creation and
enforcement and permitting programs that meet the CAA requirements. New
Jersey's indicates that enforcement of all control measures, including
the air permitting programs for regulation of stationary sources is
governed by N.J.S.A. 26:2C-19. New Jersey's enforcement and permitting
programs are operated under rules designated in NJAC 7:27 and NJAC
7:27A.
[[Page 25844]]
The minor source permitting aspect of section 110(a)(2)(C) is not
governed by the three-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 CAA title I, part D, section 172. See
``Guidance on State Infrastructure Plan (SIP) Elements under Clean Air
Act sections 110(a)(1) and 110 (a)(2),'' Memorandum from Stephen D.
Page, September 13, 2013. Therefore, we are not acting on this sub-
element.
Preconstruction Permitting Program for Major Sources and Major
Modifications
The preconstruction permitting program includes State regulations
for both nonattainment and attainment or unclassifiable areas. The
Permit program for nonattainment areas (known as ``nonattainment new
source review'') is considered by the EPA as outside the scope \9\ of
infrastructure SIP actions and is not addressed in this action.
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\9\ See Guidance on State Infrastructure Plan (SIP) Elements
under Clean Air Act sections 110(a)(1) and 110 (a)(2),'' Memorandum
from Stephen D. Page, September 13, 2013.
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The preconstruction permitting program known as ``prevention of
significant deterioration'' (PSD) is applicable when a major source
located in an attainment area or unclassifiable area, for any criteria
pollutant, is constructed or undergoes a major modification.
As NJDEP recognizes in the submittal, New Jersey does not have an
approved State PSD preconstruction permitting program for major sources
and major modifications. as required by part C of the CAA. New Jersey
accepted delegation of the administration of the PSD program from EPA.
As a result, EPA's regulations at 40 CFR 52.21 have been incorporated
into New Jersey's applicable State plan. See 40 CFR 52.1603(b). New
Jersey implements and enforces the Federal PSD program through the
delegation agreement. New Jersey's delegated PSD program evaluates the
impact of new or modified sources to prevent a violation of the NAAQS
and meet the Federal PSD permitting requirements.
EPA is proposing to approve the portion of section 110(a)(2)(C)
addressing enforcement with respect to the 2015 ozone NAAQS. EPA is not
acting on the minor source permitting aspect of section 110(a)(2)(C) as
is not governed by the three-year submission deadline of section
110(a)(1) but is due at the time that the nonattainment area plan
requirements are due pursuant to CAA section 172. Because New Jersey
does not have a SIP approved PSD program, the EPA is proposing to
disapprove the portion of section 110(a)(2)(C) of the CAA addressing
PSD.
Element D--Interstate Transport
CAA section 110(a)(2)(D) is divided into two subsections, section
110(a)(2)(D)(i) and section 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
requires SIPs to address four separate elements. Section
110(a)(2)(D)(i)(I) provides that each State's SIP must include
provisions prohibiting any source or other type of emissions activity
in one State from contributing significantly to: (1) Nonattainment, or
(2) interfering with maintenance of the NAAQS in another State
(referred to as prongs 1 and 2 or ``good neighbor'' provision). Section
110(a)(2)(D)(i)(II) provides that each State's SIP must include
provisions prohibiting any source or other type of emissions activity
in one State emitting any pollutants in amounts which will interfere
with measures required to (3) prevent significant deterioration of air
quality or to (4) protect visibility in another State (referred to as
prongs 3 and 4).
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). CAA section 126 requires notification to neighboring states
of potential impacts from a new or modified major stationary source and
specifies how a State may petition the EPA when a major source or group
of stationary sources in a State is thought to contribute to certain
pollution problems in another State. CAA section 115 requires a State
to revise its SIP to reduce pollution endangering public health and
welfare in a foreign country, where EPA had made a finding that the
State's SIP was inadequate.
CAA Section 110(a)(2)(D)(i)
In this action for New Jersey, with respect to CAA section
110(a)(2)(D)(i), the EPA is only addressing section
110(a)(2)(D)(i)(II), specifically prong 3 (i.e., interference with PSD)
and prong 4 (i.e., to protect visibility). The EPA has addressed
section 110(a)(2)(D)(i)(I) with respect to the 2015 ozone
infrastructure SIP, as noted previously, in another action. See 88 FR
9336 (February 13, 2023).
New Jersey has certified that its already approved SIP contains
provisions to adequately satisfy CAA section 110(a)(2)(D)(i)(II). New
Jersey has indicated that there are no changes to how New Jersey
previously addressed CAA section 110(a)(2)(D)(i)(II) as indicated in
the State's 2014 Multi-Pollutant iSIP. The EPA finalized action on CAA
section 110(a)(2)(D)(i)(II), prongs 3 and 4, for New Jersey's 2014
Multi-Pollutant iSIP at 81 FR 64070 (September 19, 2016). The EPA
disapproved the portions of New Jersey's October 17, 2014, SIP
submission addressing prong 3 based on the State not having an approved
PSD program. However, the EPA approved the portions addressing prong 4
based on New Jersey's fully approved regional haze plan from the 1st
implementation period, finalized January 3, 2012.
The State has not submitted any additional information regarding
how it has satisfied section 110(a)(2)(D)(i)(II), prongs 3 and 4 for
its 2015 ozone NAAQS infrastructure SIP.
Under section 110(a)(2)(D)(i)(II), (prong 3), SIPs are required to
have provisions prohibiting emissions that would interfere with
measures required to be in another state's SIP under part C of the CAA
to prevent significant deterioration of air quality.
As discussed earlier in section VI, New Jersey's SIP is not
approved with respect to the PSD permit program required by part C of
the CAA. As a result, EPA's regulations at 40 CFR 52.21 have been
incorporated into New Jersey's applicable State plan. 40 CFR
52.1603(b). New Jersey has been delegated authority by EPA to implement
40 CFR 52.21. Although New Jersey has been successfully implementing
the program, 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, EPA is proposing
to disapprove New Jersey's 110(a) submission for the 2015 8-hour Ozone
NAAQS for prong 3 of section 110(a)(2)(D)(i)(II) because New Jersey is
currently subject to a FIP and does not have a PSD SIP. This
disapproval will not trigger any sanctions or additional FIP
obligation, since the FIP is already in place. This action will have no
discernible effect on the current implementation of the PSD program in
New Jersey, as the State is already
[[Page 25845]]
implementing a well-established PSD program through EPA delegation.
Regarding prong 4, the 2013 Guidance lays out how a State's
infrastructure SIP may satisfy prong 4. In the 2nd implementation
period, confirmation that the State has a fully approved regional haze
SIP that fully meets the requirements of 40 CFR 51.308 or 51.309 will
satisfy the requirements of prong 4.\10\ New Jersey addresses its
visibility protection requirements for the 2015 Ozone NAAQS through its
regional haze SIP submittals. To address regional haze visibility
impairment, the EPA promulgated the Regional Haze Rule on July 1, 1999
(64 FR 35714, July 1, 1999), which was then amended in 2017 (82 FR
3078, January 10, 2017). The Regional Haze Rule specifically requires
States to periodically submit SIPs to the EPA to ensure that emissions
from sources within the State are not interfering with measures to
protect visibility in Class I Federal areas both within their State and
downwind of their State.\11\
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\10\ The EPA acknowledges that in the 2013 Guidance, we indicate
that the EPA may find it appropriate to supplement the guidance
regarding the relationship between regional haze SIPs and prong 4
after second implentation period SIPs become due, which occurred on
July 31, 2021. After a review of the 2013 guidance and the second
implementation period regional haze requirements, the EPA maintains
the interpretation that a fully approved regional haze SIP satisfies
Prong 4 requirements in the second implentation period.
\11\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6,000 acres, wilderness areas and
national memorial parks exceeding 5,000 acres, and all international
parks that were in existence on August 7, 1977. CAA section 162(a).
In accordance with section 169A of the CAA, the EPA, in consultation
with the Department of Interior, promulgated a list of 156 areas
where visibility is identified as an important value. 44 FR 69122
(November 30, 1979). When we use the term ``Class I area'' in this
action, we mean any one of the 156 ``mandatory Class I Federal
areas'' where visibility has been identified as an important value.
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New Jersey submitted its regional haze SIP for the first
implementation period to the EPA on July 28, 2009.\12\ The EPA
published approval of New Jersey's regional haze first implementation
period SIP submission on January 3, 2012 (77 FR 19, January 3, 2012).
The first implementation period of the regional haze program ran from
2007 through 2018.
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\12\ New Jersey supplemented its SIP submission on December 9,
2010, March 2, 2011, and December 7, 2011.
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On March 26, 2020,\13\ New Jersey submitted a revision to the SIP
to address its regional haze obligations for the second implementation
period, which runs through 2028. The EPA published approval at 88 FR
78650 (November 16, 2023).
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\13\ New Jersey supplemented its SIP submission on September 8,
2020, and April 1, 2021.
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The regional haze rule requires that a State participating in a
regional planning process include all measures necessary to achieve its
apportionment of emission reduction obligations agreed upon through
that process.\14\ States are also required to consult with States to
develop coordinated emission management strategies that contain the
emission reductions necessary for visibility improvement.\15\ Each
State must then include in their regional haze SIP submission all
measures agreed to during the state-to-state consultations, or an
equivalent regional planning process.\16\ In the EPA's approval of New
Jersey's Regional Haze Plans, the EPA has determined that the plans
contain both New Jersey's apportionment of emission reductions that
were determined to be reasonable in the first implementation period for
the State through the regional planning process, and that New Jersey
has demonstrated that it included in its second implementation period
measures that were the result of a coordinated emission management
strategy that will provide for visibility improvement. Overall, New
Jersey's Regional Haze Plans ensure that emissions from the State would
not interfere with the reasonable progress goals for Class I areas that
New Jersey's emissions are expected to impact. Thus, New Jersey's
approved regional haze SIPs from the 1st and 2nd planning periods
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 2015 8-hour ozone NAAQS that New Jersey
satisfies the section 110(a)(2)(D)(i)(II) requirement for visibility
(prong 4).
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\14\ 40 CFR 51.308(d)(3)(ii), (iii).
\15\ Id. at (f)(2)(ii).
\16\ Id. at (f)(2)(ii)(A).
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CAA Section 110(a)(2)(D)(ii)
New Jersey has certified that its already approved SIP contains
provisions to adequately satisfy CAA section 110(a)(2)(D)(ii). New
Jersey has indicated that there are no changes to how New Jersey
previously addressed CAA section 110(a)(2)(D)(ii) as indicated in the
State's 2014 Multi-Pollutant iSIP that was submitted to the EPA on
October 17, 2014.
The EPA finalized action on elements of New Jersey's 2014 Multi-
Pollutant iSIP at 83 FR 24661 (May 30, 2018). However, as previously
indicated, the EPA did not take action on the PSD portions of section
110(a)(2)(C), 110(a)(2)(J), and 110(a)(2)(D) in that action. As
explained in the EPA's proposed approval \17\ of New Jersey's 2014
Multi-Pollutant iSIP at 83 FR 8818, the EPA found New Jersey's October
17, 2014, infrastructure submittal administratively and technically
complete in accordance with 40 CFR part 51, appendix V, except for the
portions addressing the infrastructure elements in section
110(a)(2)(C), 110(a)(2)(D)(i (II), 110(a)(2)(D)(ii) relating to the
permitting program for PSD, and 110(a)(2)(J). As a result of the
incompleteness finding,\18\ the EPA did not take action on the PSD
portions of section 110(a)(2)(C), 110(a)(2)(J), and 110(a)(2)(D)(ii)
and stated that it would not do so until New Jersey submits a SIP to
address the PSD permit program requirements of part C of title I of the
CAA.
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\17\ See 83 FR 24661 (May 30, 2018).
\18\ The EPA sent a letter to NJDEP notifying them of the
determination on October 28, 2014.
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As discussed earlier in this section, the 2015 8-hour ozone
infrastructure SIP was determined complete by operation of law. The EPA
is therefore taking action on section 110(a)(2)(D)(ii) for the 2015 8-
hour ozone infrastructure SIP.
Section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with the applicable requirements of sections 126
and 115 (relating to interstate and international pollution abatement).
Section 126(a) requires new or modified major sources to notify
neighboring States of potential impacts from the source. Sections
126(b) and 126(c) of the CAA address requirements applicable to State
petitions to the EPA concerning a major source or group of sources
emitting prohibited amounts of air pollutants which will contribute
significantly to nonattainment or interfere with maintenance of the
NAAQS in another State. Section 115(a) and 115(b) address requirements
applicable to State plans requiring revisions to reduce the air
pollutants endangering public or welfare in a foreign country.
In accordance with NJAC 7:27-22.11(k), New Jersey sends
communications to all nearby States (Maryland, Pennsylvania, New York,
and Connecticut) regarding all T itle V operating permit actions, which
include all PSD permits and New Source Review (NSR) permits for new or
modified sources.
New Jersey has no source or sources within the State that are the
subject of an active finding under section 126 of the CAA with respect
to the 2015 8-hour ozone NAAQS. Additionally, there are no final
findings under section 115 of
[[Page 25846]]
the CAA against New Jersey with respect to the 2015 ozone NAAQS.
Although New Jersey has no pending obligations under section 115 or
126(b), the State relies on the Federal PSD program requirements of 40
CFR 52.21(q), (which provides for notification of affected State and
local air agencies) to satisfy the notification requirements under
section 126(a) of the CAA. As such, New Jersey's program is considered
technically deficient and not approvable. Therefore, we are proposing
to disapprove New Jersey's submission for infrastructure element
section 110(a)(2)(D)(ii) for the 2015 8-hour ozone NAAQS. This
disapproval will not trigger any sanctions or additional FIP
obligation, since the FIP is already in place.
Element E--Adequate Resources and Authority, Conflict of Interest and
Oversight of Local Governments and Regional Agencies
Section 110(a)(2)(E) requires each State to provide necessary
assurances that the State will: (i) 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) will comply with the requirements
respecting State boards under CAA section 128, and (iii) 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.
In its submittal, New Jersey states that this element of the SIP is
unchanged from New Jersey's 2014 Multi-Pollutant iSIP submittal that
EPA previously approved.\19\ New Jersey cites NJSA 13:1D-9 to
demonstrate that it meets the requirements of section 110(a)(2)(E)(i).
In addition, NJSA 26:2C-9.b(6) enables New Jersey to receive funds from
Federal, State and interstate bodies for the study and control of air
pollution.\20\
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\19\ See 83 FR 24661 (May 30, 2018).
\20\ Id.
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New Jersey also meets the requirements of section 110(a)(2)(E)(ii).
Since NJDEP does not have any State boards to approve permits or
enforcement orders, and NJDEP's Commissioner is responsible for such
actions, CAA section 128(a)(1) is not applicable to NJDEP. With respect
to CAA section 128(a)(2), New Jersey submitted for approval into the
SIP applicable sections of the New Jersey's Conflicts of Interest Law,
specifically NJSA 52:13D-14 and 52:13D-16(a) and (b) and 52:13D-21(n),
necessary to substantively meet the requirements of CAA section
128(a)(2) that deal with conflict of interest.
To address delegation of authority, section 110(a)(2)(E)(iii), New
Jersey identified the specific organizations that will participate in
developing, implementing, and enforcing the plan and the
responsibilities of such organizations.\21\
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\21\ See New Jersey's County Environmental Health Act (CEHA),
N.J.S.A. 26:3A2-21.
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The EPA proposes to approve the New Jersey submittal pursuant to
section section 110(a)(2)(E) with respect to the 2015 Ozone NAAQS.
Element F--Stationary Source Monitoring and Reporting
Section 110(a)(2)(F) requires States to establish a system to
monitor emissions from stationary sources and to submit periodic
emission reports. New Jersey's submittal notes that both major and
minor sources are required to monitor and report emissions.
The NJDEP has authority, pursuant to NJSA 26:2C-9.2, to require
emissions testing from stationary sources, pursuant to NJSA 26:2C-9 and
specifically NJSA 26:2C-9.b(3) to require emission statement reports
from stationary sources, and NJSA 26:2C-9.b(4) to requires emission
information to be made available to the public. Based on the State's
legal authority at NJSA 26:2C-9 and the State's regulatory requirements
for stationary sources to monitor and report emissions at NJAC 7:27-8
(for minor sources) and NJAC 7:27-22 (for major sources) and at NJAC
7:27-21 to require the submission of annual emission statements from
major sources), EPA is proposing to find that New Jersey has met the
requirements of section 110 (a)(2)(F).
Based on New Jersey's certification that the updated regulations,
NJAC 7:27-8 and 7:27-22, do not affect the State's ability to enforce
control measures or regulate the modification and construction of
stationary sources within the areas covered by the SIP as necessary for
the 2015 ozone NAAQS, and consistent with EPA's previous approval of
Element F,\22\ the EPA proposes to approve the New Jersey submittal
pursuant to section 110(a)(2)(F) with respect to the 2015 Ozone NAAQS.
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\22\ See 83 FR 24662.
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Element G--Emergency Powers
Section 110(a)(2)(G) requires States to provide for emergency
authority to address activities causing imminent and substantial
endangerment to public health and requires States to submit adequate
contingency plans to implement the emergency episode provisions in
their SIPs. The EPA requires that Infrastructure SIP submittals meet
the applicable contingency plan requirements of 40 CFR part 51, subpart
H (40 CFR 51.150 through 51.153) (``Prevention of Air Pollution
Emergency Episodes''). Subpart H requires States that have air quality
control regions identified as either Priority I, Priority IA, or
Priority II to develop emergency episode contingency plans.
New Jersey continues to be required to prepare emergency episode
contingency plans for the 2015 ozone NAAQS, which is required \23\ for
Priority I areas for ozone. EPA's review of ambient air monitoring data
since the previous approval of Element G indicates that since 2018, the
1-hour maximum measured, certified and quality assured values (1-hour
varies from 0.070ppm to 0.135ppp ppm) was above the threshold level for
ozone (0.10 ppm 1-hour maximum) for Priority I areas.
---------------------------------------------------------------------------
\23\ See 40 CFR 51.150. New Jersey.
---------------------------------------------------------------------------
In its submittal, New Jersey certified there is no change to this
element. EPA notes that New Jersey's authority continues to be provided
in New Jersey's Air Pollution Emergency Control Act (NJSA 26:2C-26 et
seq.), which is implemented through NJAC 7:27-12, as incorporated into
the SIP, and contains New Jersey's emergency episode contingency plans.
The emergency criteria levels are used by the State in announcing air
pollution alerts, warnings or emergencies.\24\
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\24\ See 83 FR 24662.
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Based on this submittal and consistent with EPA's previous approval
of Element G,\25\ the EPA proposes to approve the New Jersey submittal
pursuant to section 110(a)(2)(G) with respect to the 2015 Ozone NAAQS.
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\25\ See, 83 FR 24662.
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Element H--Future SIP Revisions
This section requires that a State's SIP provide for revision as
may be necessary to take account of changes in the NAAQS or
availability of improved methods for attaining the NAAQS and whenever
the EPA finds that the SIP is substantially inadequate. The NJDEP is
provided the authority by NJSA 13:1D-9 to formulate comprehensive
policies ``for the conservation of the natural resources of the
State.'' EPA proposes to find that the State has adequate authority to
develop and implement plans and programs that fulfill the requirements
of this section.
[[Page 25847]]
In its SIP submittal, New Jersey certifies that there is no change
to this element. Based on New Jersey's submittal and, consistent with
EPA's prior approval of Element H,\26\ the EPA proposes to approve the
New Jersey submittal pursuant to section 110(a)(2)(H) with respect to
the 2015 Ozone NAAQS.
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\26\ See, 83 FR 24662.
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Element J--Consultation With Government Officials, Public Notification,
and PSD and Visibility Protection
In its SIP submittal, New Jersey certifies that there is no change
to this element. Section 121 requires a process for consultation with
local governments and Federal Land Managers carrying out NAAQS
implementation requirements. NJSA 26:2C-8 provides the NJDEP with the
power to formulate and promulgate codes, rules and regulations
preventing, controlling and prohibiting air pollution provided that the
public has an opportunity to comment during the public participation
process. Further, New Jersey has created a Clean Air Council (NJSA
26:2C-3.2-3.3) which includes members from various associations
including the New Jersey State League of Municipalities and New Jersey
Freeholder's Association. EPA proposes that New Jersey has adequate
authority to meet the requirements of this subsection.
The NJDEP has procedures in place to notify the public when air
quality standards deteriorate and exceed the NAAQS. It maintains a
website which provides information on current air quality status, air
quality forecasts, monitoring information, reports and pertinent
information related to air quality readings. NJDEP participates with
surrounding States in submitting and compiling air quality data and
making this information available to press, news outlets, State
websites and through the use of EPA's air notification system,
EnviroFlash. EPA is proposing to find that New Jersey has adequate
procedures for notifying the public of air quality concerns and
disseminating information on ways to avoid health problems and reduce
exposure when necessary. EPA proposes to find that New Jersey has
adequate authority, under NJSA 13:1D-9, to carry out its SIP
obligation.
New Jersey is currently subject to a PSD FIP. The approvability of
a State's PSD program in its entirety is essential to the approvability
of the PSD sub-element of Element J. EPA is therefore proposing to
disapprove the PSD sub-element of Element J. This disapproval will not
trigger any sanctions or additional FIP obligation, since the FIP is
already in place. This action will have no discernible effect on the
current implementation of the PSD program in New Jersey, as the State
is already implementing a well-established PSD program through EPA
delegation.
EPA is not addressing the section 110(a)(2)(J) sub-element related
to visibility. According to EPA's interpretation, there are no newly
applicable visibility protection obligations pursuant to Element J
after the promulgation of a new or revised NAAQS.\27\
---------------------------------------------------------------------------
\27\ ``Guidance on Infrastructure State Implementation (SIP)
Elements Under Clean Air Act sections 110(a)(1) and (110(a)(2,
Memorandum from Stephen D. Page, September 13, 2013, available at
https://www.epa.gov/sites/default/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf.
---------------------------------------------------------------------------
Element K--Air Quality Modeling and Submission of 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 pollutants and submission of such data to EPA upon request. In
its submittal New Jersey certifies that this element of the SIP is
unchanged from New Jersey's 2014 Multi-Pollutant iSIP previously
approved by EPA.
EPA proposes to find that New Jersey's regulations provide for
performance of air-quality modeling, including modeling for attainment
plans, permits and redesignation requests. NJAC 7:27-8.5 and 7:27-22.8.
New Jersey has broad statutory authority under NJSA 13:1D-9 and NJSA
2C-8 and 2C-19. EPA proposes to find that the State has adequate
authority to perform air quality modeling that fulfills the
requirements of this section.
Element L--Permitting Fees
This section requires SIPs to require each major stationary source
to pay permitting fees to cover the cost of reviewing, approving,
implementing and enforcing a permit. New Jersey certifies that this
element of the SIP is unchanged from New Jersey's 2014 Multi-Pollutant
iSIP previously approved by EPA. Effective November 30, 2001, EPA
granted full approval to New Jersey's title V Operating Permit Program.
66 FR 63168 (December 5, 2001). New Jersey's operating permits
regulation, at NJSA 7:27-22, contains specific detailed provisions for
assessing permit fees (contained in NJAC 7:27-22.31). The authority to
require these fees in subchapter 22 is provided by NJSA 26:2C-9.b.(7),
NJSA 26:2C-9.5 and NJSA 26:2C-9.6. NJDEP's infrastructure SIP submittal
meets all the requirements of EPA's October 2013 infrastructure
guidance for section 110(a)(2)(L).
Element M--Consultation and Participation by Affected Local Entities
To satisfy section 110(a)(2)(M), a SIP should provide for
consultation and participation by affected local entities. New Jersey's
submittal certifies that the authority for this element of the SIP is
unchanged from the New Jersey 2014 Multi-Pollutant iSIP previously
approved by the EPA.
New Jersey provides the opportunity for consultation and
participation to local political subdivisions during the public comment
period of a proposed State Implementation Plan. New Jersey's Air
Pollution Control Act, NJSA 26:2C-8 and NJSA 52:14B-1 et seq. require a
public process for any rulemaking.
VII. Environmental Justice Considerations
Under the CAA, 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, the EPA's role is to review State choices,
and approve those choices if they meet the minimum criteria of the Act.
On May 16, 2023, New Jersey provided a supplement to the SIP
submission being proposed for approval with this rulemaking. The
supplemental submission briefed the EPA on Environmental Justice (EJ)
considerations within New Jersey by detailing the State's programs and
initiatives addressing the needs of communities with EJ concerns that
have been ongoing since 1998. Although New Jersey included
environmental justice considerations as part of its SIP submittal, the
CAA and applicable implementing regulations neither prohibit nor
require such an evaluation.
In its supplement, New Jersey discussed how the State has been
addressing the needs of communities with EJ concerns since 1998,
including assisting in the creation of the Environmental Equity Task
Force, which later evolved into the Environmental Justice Advisory
Council (EJAC). EJAC and its predecessor have held regular meetings
that include EJ advocates and the New Jersey Department of
Environmental Protection (NJDEP) to discuss and address environmental
justice issues of concern.
New Jersey also noted that the State has implemented numerous
initiatives, collaborations, Administrative Orders
[[Page 25848]]
and Executive orders to address the needs and concerns of overburdened
communities. A timeline of New Jersey's implemented EJ actions,
including both prior to and after the SIP submittal on May 13, 2019,
was provided and is indicative of the State's continued attention to
environmental justice issues.
New Jersey's Administrative Orders (AO) and Executive orders (E.O.)
include the State's first EJ E.O. issued by Governor James E. McGreevey
in 2004 (E.O. 96), an EJ E.O. issued by Governor Jon Corzine in 2009
(E.O.131), an EJ AO issued by NJDEP Commissioner Bob Martin in 2016 (AO
2016-08) and an EJ E.O. issued by Governor Phil Murphy in 2018 (E.O.
23). Notably, U.S. Senator for New Jersey, Cory Booker, introduced the
first Federal EJ bill in 2017 (S.1996--Environmental Justice Act of
2017).
Additionally, New Jersey also created the ``What's In My
Community'' \3\ tool, a GIS-mapping web application that allows a user
to see the air permits issued in their community. The tool also
identifies overburdened communities, schools, hospitals, and emergency
services. The public users can also see measurements from air monitors
and generate a report when using the tool.
The EPA considered EJ when reviewing provisions contained within
New Jersey's May 13, 2019, submission detailed above. However, the EPA
determined that conducting a comprehensive EJ analysis was not
necessary, as the CAA and its applicable implementing regulations
neither prohibit nor require such an evaluation of EJ. Additionally,
there is no evidence suggesting that this action contradicts the goals
of E.O. 12898 or that it will disproportionately harm any specific
group or have severe health or environmental impacts.
Consequently, the EPA expects that this action, which assesses
whether New Jersey's SIP adequately addresses the infrastructure
requirements of the CAA regarding the 2015 8-hour Ozone NAAQS, will
generally have a neutral impact on all populations, including
communities of color and low-income groups. At a minimum, this proposed
action will not worsen air quality within the State.
In summary, the EPA concludes that this proposed rule will not
disproportionately harm communities with EJ concerns. New Jersey
voluntarily evaluated EJ considerations in its SIP submission, but the
EPA's assessment of these considerations is provided for context, not
as the basis for the action. The EPA is taking action under the CAA and
independently of the State's EJ assessment.
VIII. What action is the EPA taking?
The EPA is proposing to approve New Jersey's May 13, 2019 SIP
revision submittal, as fully meeting the infrastructure requirements
for the 2015 8-hour ozone NAAQS for the following section 110(a)(2)
elements and sub-elements: (A), (B), (C) (enforcement program only),
(D)(i)(II) prong 4 (visibility), (E), (F), (H), (J) (consultation and
public notification only), (K), (L), and (M) of the CAA.
The EPA is proposing to disapprove New Jersey's submittal for the
2015 8-hour ozone 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.
IX. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by State law.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by State law.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C.1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will 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.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to 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 and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply in this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by State law.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
[[Page 25849]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The New Jersey Department of Environmental Protection (NJDEP) did
consider environmental justice as part of its SIP submittal even though
the CAA and applicable implementing regulations neither prohibit nor
require such an evaluation. The EPA's evaluation of the NJDEP's EJ
considerations is described above in the section titled,
``Environmental Justice Considerations.'' The analysis was done for the
purpose of providing additional context and information about this
rulemaking to the public, and not as a basis of the action. The EPA is
taking action under the CAA on bases independent of New Jersey's
evaluation of environmental justice. In addition, there is no
information in the record upon which this decision is based that is
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024-07775 Filed 4-11-24; 8:45 am]
BILLING CODE 6560-50-P