[Federal Register Volume 89, Number 138 (Thursday, July 18, 2024)]
[Proposed Rules]
[Pages 58306-58312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15705]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2024-0110, FRL-12093-01-R2]
Air Plan Approval; New Jersey; NOX SIP Call and Removal of CAIR
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the removal of the New Jersey Clean Air Interstate Rule (CAIR
nitrogen oxides (NOX) Trading Program regulations from the
New Jersey State Implementation Plan (SIP) and is proposing to
conditionally approve the removal of the New Jersey NOX
Budget Program regulations from the New Jersey SIP. On August 23, 2018,
the New Jersey Department of Environmental Protection (NJDEP) submitted
a SIP revision requesting the removal of the State's CAIR
NOX Trading Program and NOX Budget Program
regulations from the New Jersey SIP. NJDEP submitted a supplement to
the revision on May 31, 2024, that commits NJDEP to develop a
Memorandum of Agreement with the EPA that indicates how the State of
New Jersey will maintain compliance with the State's NOX SIP
Call obligations for
[[Page 58307]]
the types of large non-electricity generating units (non-EGUs) that
were previously regulated under the New Jersey NOX Budget
Program.
DATES: Written comments must be received on or before August 19, 2024.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2024-0110, at https://www.regulations.gov. Although listed in
the index, some information is not publicly available, e.g., Controlled
Unclassified Information (CUI) (formally referred to as 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 CUI 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 CUI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Environmental
Protection Agency, Region 2, Air Programs Branch, 290 Broadway, New
York, New York 10007-1866, at (212) 637-3378, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION section is
arranged as follows:
I. Background
II. EPA's Evaluation and Proposed Action
III. Environmental Justice Considerations
IV. Statutory and Executive Order Reviews
I. Background
Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), also
called the good neighbor provision, States are required to address the
interstate transport of air pollution. Specifically, the good neighbor
provision requires that each state's implementation plan contain
adequate provisions to prohibit air pollutant emissions from within the
state that will significantly contribute to nonattainment of the
national ambient air quality standards (NAAQS), or that will interfere
with maintenance of the NAAQS, in any other state. In October 1998 (63
FR 57356), the EPA finalized the ``Finding of Significant Contribution
and Rulemaking for Certain States in the Ozone Transport Assessment
Group Region for Purposes of Reducing Regional Transport of Ozone''
(NOX SIP Call).\1\ The NOX SIP Call required
Eastern States, including New Jersey, to submit SIPs that prohibit
excessive emissions of ozone season NOX by implementing
statewide emissions budgets. The NOX SIP Call addressed the
good neighbor provision for the 1979 ozone NAAQS and was designed to
mitigate the impact of transported NOX emissions, one of the
precursors of ozone.\2\ To help implement the NOX SIP Call,
EPA developed the NOX Budget Trading Program, a regional
allowance trading program. States could meet most of their obligations
under the NOX SIP Call by requiring certain types of sources
to participate in this trading program: generally, EGUs with capacity
greater than 25 megawatts (MW) \3\ and large non-EGUs, such as
industrial boilers and combustion turbines, with a rated heat input
greater than 250 million British thermal units per hour (MMBtu/hr).
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\1\ The EPA issued subsequent technical amendments to the
NOX SIP Call in May 1999 (64 FR 26298) and March 2000 (65
FR 11222).
\2\ As originally promulgated, the NOX SIP Call also
addressed good neighbor obligations under the 1997 8-hour ozone
NAAQS, but EPA subsequently stayed and later rescinded the rule's
provisions with respect to that standard. See 65 FR 56245 (September
18, 2000); 84 FR 8422 (March 8, 2019).
\3\ In some States, EGUs smaller than 25 MW were also part of
EPA's NOX Budget Trading Program.
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NJDEP submitted a SIP revision including amendments to the
regulation N.J.A.C. 7:27-31 (otherwise known as subchapter 31),
``NOX Budget Program'', on December 10, 1999,\4\ to comply
with the NOX SIP Call requirements. The EPA approved the
revision as meeting the requirements of the NOX SIP Call in
2001. See 66 FR 28063 (May 22, 2001). The approved revision required
EGUs with capacity greater than 15 MW and large non-EGUs in the State
to participate in the State's NOX Budget Program beginning
in 2003.
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\4\ The SIP revision was further supplemented by New Jersey on
July 31, 2000.
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In 2005, EPA published CAIR, which required Eastern States,
including New Jersey, to submit SIPs that prohibited emissions
consistent with revised ozone season (and annual) NOX
budgets. See 70 FR 25162 (May 12, 2005); see also 71 FR 25328 (April
28, 2006). CAIR addressed the good neighbor provision for the 1997
ozone NAAQS and the 1997 fine particulate matter (PM2.5)
NAAQS and was designed to mitigate the impact of transported
NOX emissions with respect to ozone and PM2.5.
CAIR established several trading programs that States could join
through SIPs or that EPA would implement through Federal implementation
plans (FIPs) for EGUs greater than 25 MW in each affected state; States
also retained the option to submit SIPs that achieved the required
emission reductions from other types of sources.\5\ When the CAIR
trading program for ozone season NOX was implemented
beginning on January 1, 2009, the EPA discontinued administration of
the NOX Budget Trading Program; however, the requirements of
the NOX SIP Call continued to apply. For large non-EGUs that
would have been covered under the NOX Budget Trading
Program, States were allowed, but not obligated, to achieve the
required emissions reductions from these types of units by including
the units in the CAIR trading program for ozone season NOX.
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\5\ CAIR had separate trading programs for annual sulfur dioxide
emissions, seasonal NOX emissions, and annual
NOX emissions.
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On October 1, 2007, the EPA approved revisions to New Jersey's SIP
that used the CAIR FIP trading program for ozone season NOX
to address the State's obligations under the NOX SIP Call
related to EGUs. Consistent with CAIR's requirements, EPA approved a
SIP revision in which New Jersey regulations: (1) adopted State rule
provisions modifying the allowance allocation provisions of the CAIR
FIP applicable to New Jersey, and (2) sunset New Jersey's
NOX Budget Program requirements. See 72 FR 55672.
Specifically, New Jersey adopted under N.J.A.C. 7:27-30 (otherwise
known as subchapter 30), the CAIR NOX Trading Program,
provisions for allocating allowances under the CAIR FIP NOX
annual and ozone season trading programs.\6\ Additionally, New Jersey
adopted at N.J.A.C. 7:27-31.23, a sunset provision, which established
that the Federal CAIR NOX Ozone Season Trading Program as
modified by New Jersey's SIP revision would replace New Jersey's
NOX Budget Program (Subchapter 31) starting in 2009.
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\6\ New Jersey's rule did not modify the CAIR FIP regarding
SO2.
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[[Page 58308]]
Participation of New Jersey's EGUs in CAIR's ozone season
NOX trading program pursuant to a FIP achieved the emissions
reductions necessary to address the State's obligation under the
NOX SIP Call for those units. However, consistent with the
flexibility given to States in the CAIR FIP, New Jersey chose not to
expand the applicability provisions of CAIR's NOX ozone
season trading program to include the types of non-EGUs that had been
included in the State's NOX Budget program.
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896,
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling
allowed CAIR to remain in effect temporarily until a replacement rule
consistent with the court's opinion was developed. While EPA worked on
developing a replacement rule, the CAIR program continued to be
implemented with the NOX annual and ozone season trading
programs beginning in 2009, and the SO2 annual trading
program beginning in 2010.
In response to the D.C. Circuit's remand of CAIR, the EPA
promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR
and address good neighbor obligations for the 1997 ozone NAAQS, the
1997 PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. See
76 FR 48208 (August 8, 2011). Through FIPs, CSAPR required EGUs in
Eastern States, including New Jersey, to meet annual and ozone season
NOX emission budgets and annual SO2 emission
budgets implemented through new trading programs. CSAPR also contained
provisions that would sunset CAIR-related obligations on a schedule
coordinated with the implementation of the CSAPR compliance
requirements. Following litigation-related delays, EPA stopped
administering the CAIR trading programs with respect to emissions
occurring after December 31, 2014, and began implementing the CSAPR
trading programs with respect to emissions occurring on and after
January 1, 2015.
In July 2015, the D.C. Circuit generally upheld CSAPR but remanded
several state budgets, including New Jersey's ozone season
NOX budget, to EPA for reconsideration. EME Homer City
Generation, L.P. v. EPA, 795 F.3d 118, 129-30 (D.C. Cir. 2015). EPA
addressed the remanded ozone season NOX budgets in the
Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR
Update), which also partially addressed Eastern States' good neighbor
obligations for the 2008 ozone NAAQS. See 81 FR 74504 (October 26,
2016). The CSAPR Update implemented the budgets through FIPs requiring
sources to participate in a revised CSAPR NOX ozone season
trading program beginning with the 2017 ozone season.
The CSAPR Update was subject to legal challenge in the D.C.
Circuit. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019); see also New
York v. EPA, 781 Fed. App'x 4 (D.C. Cir. 2019). In response to the
Wisconsin remand of the CSAPR Update, the EPA promulgated the Revised
CSAPR Update, which established new or amended FIPs for 12 States,
including New Jersey. See 86 FR 23054 (April 30, 2021). The FIPs
required the implementation of revised emissions budgets for EGUs
beginning with the 2021 ozone season.
In 2023, the EPA published the Federal Good Neighbor Plan (GNP),
which established requirements to address 23 States' good neighbor
obligations for the 2015 ozone NAAQS. See 88 FR 36654 (June 5, 2023).
Under the FIP requirements for the GNP, EGUs in 22 States, including
New Jersey, were required to participate in a revised version of the
CSAPR NOX Ozone Season Group 3 Trading Program beginning in
the 2023 ozone season.\7\
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\7\ In response to judicial orders partially staying a separate
EPA action (88 FR 9336, February 13, 2023) as to 12 States, the EPA
has issued two interim final rules staying implementation of the
Good Neighbor Plan's requirements as to the sources in those States.
See 88 FR 49295 (July 31, 2023); 88 FR 67102 (September 29, 2023).
On June 27, 2024, the Supreme Court of the United States granted
stay applications of the Good Neighbor Plan, Ohio et al. v. EPA,
Nos. 23A349, 23A350, 23A351, and 23A384, 603 U.S._(2024). This does
not affect the EPA's analysis of New Jersey's NOX SIP
Call obligations as to non-EGUs discussed in this document.
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States have options to replace the FIPs promulgated under CSAPR,
the CSAPR Update, the Revised CSAPR Update, and the GNP with SIP
revisions, including but not limited to SIP revisions that adopt state
trading programs substantively identical to and integrated with the
Federal trading programs established under the FIPs for other States.
New Jersey has not chosen to submit SIP revisions to replace the FIPs
issued under these rules, and instead its EGUs have remained subject to
the respective FIPs.
Participation by a state's EGUs in the trading programs for ozone
season NOX under CSAPR, the CSAPR Update, the Revised CSAPR
Update, or the GNP generally addresses the state's obligation under the
NOX SIP Call for EGUs, but these trading programs no longer
include an option specifically designed to allow States to address
their obligations under the NOX SIP Call for non-EGUs by
requiring the non-EGUs to participate in the trading programs.\8\ The
GNP required that certain types of non-EGUs \9\ in 20 States, including
New Jersey, reduce NOX emissions through emissions
limitations and associated requirements beginning in the 2026 ozone
season. However, it is important to note that the types of non-EGUs
regulated under the NOX SIP Call and under the GNP do not
fully overlap, and the forms of the requirements are different. EPA has
not made any finding that compliance with the GNP's requirements by the
types of non-EGUs in a state subject to that rule addresses the state's
obligations with respect to the types of non-EGUs in the state affected
under the NOX SIP Call.
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\8\ While some NOX SIP Call States elected to use the
specifically designed SIP revision option of this nature provided
under CAIR, other States (including New Jersey) did not, and the
option was removed under CSAPR. A similar specifically designed SIP
revision option was provided under the CSAPR Update and the Revised
CSAPR Update, but no States elected to use it, and it was removed
under the GNP. Any future SIP revision seeking to address a state's
NOX SIP Call obligations for non-EGUs by requiring the
non-EGUs to participate in one of these trading programs will be
evaluated on a case-by-case basis. See 88 FR at 36844.
\9\ These industrial source types are: reciprocating internal
combustion engines in Pipeline Transportation of Natural Gas; kilns
in Cement and Concrete Product Manufacturing; reheat furnaces in
Iron and Steel Mills and Ferroalloy Manufacturing; furnaces in Glass
and Glass Product Manufacturing; boilers in Iron and Steel Mills and
Ferroalloy Manufacturing, Metal Ore Mining, Basic Chemical
Manufacturing, Petroleum and Coal Products Manufacturing, and Pulp,
Paper, and Paperboard Mills; and combustors and incinerators in
Solid Waste Combustors and Incinerators.
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New Jersey provided a SIP submittal on August 23, 2018, to EPA
requesting removal of the State's CAIR NOX Trading Program
(Subchapter 30) and the State's NOX Budget Program
(Subchapter 31) from the New Jersey SIP. As previously mentioned in
this section, EPA has already approved into the SIP a sunset provision
of Subchapter 31. The approved sunset provision ended New Jersey's
NOX Budget Program for all sources that were previously
covered sources, beginning in 2009.
Since New Jersey's large non-EGUs no longer participate in a
NOX ozone season trading program, the NOX SIP
Call regulations at 40 CFR 51.121(r)(2) as well as anti-backsliding
provisions at 40 CFR 51.905(f) and 40 CFR 51.1105(e) require the State
to meet its ongoing obligations under the NOX SIP Call with
respect to these types of non-EGUs in some other way.
Under 40 CFR 51.121(f)(2) of the NOX SIP Call
regulations, where a state's SIP
[[Page 58309]]
contains control measures for EGUs and large non-EGU boilers and
combustion turbines, the SIP must contain enforceable limits on the
ozone season NOX mass emissions from these sources. In
addition, under 40 CFR 51.121(i)(4) of the NOX SIP Call
regulations as originally promulgated, the SIP also had to require
these sources to monitor emissions according to the provisions of 40
CFR part 75, which generally entails the use of continuous emission
monitoring systems (CEMS). New Jersey triggered these requirements by
including control measures in its SIP for these types of sources, and
the requirements have remained in effect despite the discontinuation of
the NOX Budget Trading Program after the 2009 ozone season.
On March 8, 2019, EPA revised some of the regulations that were
originally promulgated in 1998 to implement the NOX SIP
Call.\10\ The revision gave States covered by the NOX SIP
Call greater flexibility concerning the form of the NOX
emissions monitoring requirements that the States must include in their
SIPs for certain emissions sources. The revision amended 40 CFR
51.121(i)(4) to make 40 CFR part 75 monitoring, recordkeeping, and
reporting optional, such that SIPs may establish alternative monitoring
requirements for NOX SIP Call units that meet the general
requirements of 40 CFR 51.121(f)(1) and (i)(1). Under the updated
provision, a state's implementation plan still needs to include some
form of emissions monitoring requirements for these types of sources,
consistent with the NOX SIP Call's general enforceability
and monitoring requirements at Sec. 51.121(f)(1) and (i)(1),
respectively, but States are no longer required to satisfy these
general NOX SIP Call requirements specifically through the
adoption of 40 CFR part 75 monitoring requirements.
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\10\ See ``Emissions Monitoring Provisions in State
Implementation Plans Required Under the NOX SIP Call,''
84 FR 8422 (March 8, 2019).
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On March 7, 2024, New Jersey submitted a letter to the EPA
committing to develop a Memorandum of Agreement (MOA) between the EPA
and the NJDEP that outlines how NJDEP will comply with the
NOX SIP Call, specifically for the types of non-EGUs that
were previously regulated by the New Jersey NOX Budget
Program and were not included in the subsequent CAIR FIP trading
program. Subsequently, on May 31, 2024, New Jersey submitted an updated
commitment letter to revise and replace the previous March 7, 2024,
letter. The need for this revision arose because NJDEP conducted an
analysis to determine what units would have been classified as a non-
EGU under the applicability criteria of the New Jersey NOX
Budget Program (N.J.A.C. 7:27-31), as in effect as of September 30,
2008. As a result of this analysis, the value of the non-EGU budget was
adjusted.\11\ The revised letter adjusted the non-EGU budgets for the
affected units' aggregated emissions during the ozone season and
revised the date by which the State will submit the MOA to the EPA.
Both of the NJDEP commitment letters are included in the docket for
this rulemaking.
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\11\ NJDEP analysis determined that the natural gas turbine unit
located at cogeneration facility, EF Kenilworth, was subject to the
NOX Budget Program as a small EGU (i.e., an EGU serving
an electricity generator with nameplate capacity of at least 15 MW
but not greater than 25 MW).
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In the May 31, 2024, letter, NJDEP commits to submitting the MOA to
the EPA by no later than March 7, 2025. New Jersey provided a date
certain for purposes of CAA 110(k)(4), which authorizes the EPA to
conditionally approve a plan revision based on a commitment by the
state to adopt specific enforceable measures by a date certain but not
later than one year after the date of the plan approval. In their
letter to the EPA, NJDEP indicated that it was their understanding that
the EPA would approve the MOA as an enforceable SIP revision by no
later than one year from the date the EPA conditionally approves the
New Jersey SIP Revision--Removal of CAIR and NOX Budget
Programs, which was submitted on August 23, 2018.
NJDEP indicated in their commitment letters that the non-EGUs no
longer in the NOX trading program will not be subject to the
monitoring, recordkeeping, and reporting requirements in 40 CFR part
75, and instead will rely on the emission statement reporting (7:27
Subchapter-21) and emissions limits in their NOX RACT rules
(7:27 Subchapter-19) as reflected in sources' air permits to continue
to meet and demonstrate compliance with the non-EGU portion of the
budget set under the State's former NOX Budget Program. The
MOA will serve to memorialize an aggregate state-wide budget and
monitoring and reporting requirements for the affected non-EGU units,
as well as official annual ozone season NOX reporting by the
state to the EPA.
Specifically, NJDEP indicated in their commitment letter to the EPA
that the MOA will specify how the emission limits and monitoring,
recordkeeping, and reporting requirements for sources covered by the
SIP are sufficient to meet the NOX SIP Call requirements for
these types of sources. The MOA would specify that NOX
emissions in tons will be determined from non-EGUs during the ozone
season via CEMS or stack testing already required pursuant to N.J.A.C.
7:27-19.17, ``Source emission testing,'' and reported via NJ's Emission
Statement Program (N.J.A.C. 7:27-21). The stack testing frequency,
which is specified in the operating permit, shall require a new stack
test at least every five years. The MOA would provide that annual and
ozone-season emissions data will be collected each year, and NJDEP will
report that information to EPA for each year in a format that allows
for EPA to verify compliance with the NOX SIP Call. The MOA
would specify that the types of non-EGUs subject to the MOA are
existing, modified, and new fossil fuel-fired boilers and combustion
turbines with maximum design heat input greater than 250 mmBtu/hr,
except electricity generating units required to participate in the
CSAPR NOX Ozone Season Group 3 Trading Program (40 CFR part
97, subpart GGGGG) or a successor trading program for seasonal
NOX emissions. The MOA would specify that the affected
units' aggregated emissions will not exceed a non-EGU emissions budget
of 745 tons per ozone season (May 1-September 30 of each year).\12\
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\12\ The 745 tons of NOX per ozone season limit
corresponds to the portion of the State's trading budget assigned to
non-EGUs of the types previously regulated under the New Jersey
NOX Budget Program (N.J.A.C. 7:27-31) as in effect as of
September 30, 2008.
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The commitment letter indicated that the MOA will be made available
for public comment and will be submitted as a SIP revision to the EPA.
Once the MOA is signed by both NJDEP and the EPA, and the approval of
the MOA as a part of New Jersey's SIP is finalized, the MOA will become
an enforceable part of the SIP, and the EPA and the NJDEP will have
authority to enforce the conditions in the MOA (along with
corresponding SIP-approved requirements applicable to the relevant
sources). The MOA will establish the mechanism by which New Jersey will
report to EPA consistent with its own obligations under the
NOX SIP Call, and to ensure compliance with the budget per
40 CFR 51.121(r).
II. EPA's Evaluation and Proposed Action
On August 23, 2018, NJDEP submitted a SIP revision requesting that
EPA update the New Jersey SIP to reflect the removal of New Jersey's
CAIR NOX Trading Program establishing the State's allowance
allocations under the Federal CAIR trading programs (Subchapter 30)
[[Page 58310]]
and New Jersey's NOX Budget Program (Subchapter 31) from the
SIP. The State rule provision sunsetting the State's NOX
Budget Program was already approved into the SIP by EPA in 2007, and
the State's CAIR allowance allocation rules have had no effect since
EPA discontinued administration of the Federal CAIR trading programs
after 2014. NJDEP repealed Subchapter 30 and Subchapter 31 on December
14, 2017.
As discussed previously in Section I, NJDEP provided commitment
letters to the EPA on March 7, 2024, and May 31, 2024, committing to
develop a MOA between the EPA and the NJDEP that outlines how NJDEP
will comply with the State's obligations under the NOX SIP
Call for the types of non-EGUs that were previously regulated by the
New Jersey NOX Budget Program and that were not included in
the subsequent CAIR FIP trading program. Once approved into the New
Jersey SIP, the MOA will ensure compliance with the New Jersey non-EGU
budget per 40 CFR 51.121(r). Specifically, the MOA will serve as the
enforceable mechanism for ensuring the New Jersey SIP contains
enforceable limits and monitoring, recordkeeping, and reporting
requirements to ensure the affected New Jersey non-EGU units'
aggregated emissions will not exceed a budget of 745 tons per ozone
season on an annual basis for existing and new units.
First, the EPA proposes to approve the removal of the New Jersey
CAIR NOX Trading Program (Subchapter 30) from the New Jersey
SIP. The State rule only established allowance allocations for use
under the Federal CAIR trading programs. Because the EPA no longer
administers the Federal CAIR trading programs, the removal of
Subchapter 30 from the SIP will have no consequences for any sources'
operations or emissions or for the attainment or maintenance of the
NAAQS in any area, now or in the future.
Second, the EPA is proposing to conditionally approve the removal
of the New Jersey NOX Budget Program (Subchapter 31) from
the New Jersey SIP. Although EPA no longer administers the
NOX Budget Trading Program and approved the sunset provision
of the New Jersey NOX Budget program in a previous action
(see 72 FR 55672), New Jersey has outstanding obligations under the
NOX SIP Call. Accordingly, on May 31, 2024, NJDEP submitted
a letter committing NJDEP to submit an MOA that will outline how NJDEP
will comply with the NOX SIP Call for the types of non-EGUs
previously regulated by the New Jersey NOX Budget Program by
March 7, 2025.
Under CAA section 110(k)(4), conditional approval is an option for
EPA SIP approvals based on a commitment to adopt specific enforceable
measures by a date certain, but no later than one year from the date of
approval. If the state fails to meet its commitment within the
specified date, the approval is treated as a disapproval.
Since the MOA between NJDEP and the EPA will be enforceable only
when approved by the EPA and codified through incorporating by
reference in the EPA-approved statutes and regulations in the New
Jersey SIP at 40 CFR 52.1570, it will be necessary for the EPA to take
this action no later than one year from the date of the conditional
approval.
Based on the State's May 31, 2024, commitment to submit a SIP
revision by March 7, 2025, addressing the identified deficiency and the
EPA taking action to approve the MOA as an enforceable SIP revision no
later than one year from the date the EPA finalizes a conditional
approval, EPA is proposing to conditionally approve the portion of the
August 23, 2018, SIP revision requesting the removal of the New Jersey
NOX Budget Program (Subchapter 31) from the New Jersey SIP.
EPA will take action to approve or disapprove the MOA into the New
Jersey SIP when it is submitted to the EPA as a SIP revision.
However, if the State fails to submit this revision, or if EPA does
not approve the MOA as an enforceable SIP revision on or before 12
months from the date of final approval of this action, the conditional
approval will become a disapproval and the EPA will issue a notice to
that effect. If the conditional approval becomes a disapproval, the
disapproval triggers the requirement for EPA to issue a Federal
implementation plan (FIP) under CAA section 110(c) to correct the
deficiency.
Section 110(l) Demonstration
As stated in New Jersey's May 2024 commitment letter, the State
commits to enter a Memorandum of Agreement between the USEPA and the
NJDEP that outlines how NJDEP will comply with the NOX SIP
Call, specifically for the types of non-electric generating units (non-
EGUs) that were previously regulated by the New Jersey NOX
Budget Program (N.J.A.C. 7:27-Subchapter 31) and that were not included
in the subsequent CAIR FIP trading program. On June 19, 2007, New
Jersey adopted rules establishing allowance allocations for the State's
EGUs participating in the ozone season NOX trading program
established under the CAIR FIP but excluded non-EGU industrial units
from its rulemaking. Under both the NOX Budget Program and
CAIR, the affected units were required to monitor pursuant to 40 CFR
part 75. The EGUs that remained in the CAIR trading program continued
to comply with the monitoring requirements. However, because the EPA
approved the sunset of the State's NOX Budget Program
requirements in the SIP and the non-EGUs were not brought into the CAIR
FIP trading program, the non-EGUs did not retain those monitoring
requirements. Instead, applicable non-EGUs relied on monitoring
requirements under New Jersey's emission statement program (N.J.A.C.
7:27-21), the State's various NOX RACT regulations (N.J.A.C.
7:27-19), and associated air permits to continue to demonstrate
compliance with the 745 tons per ozone season budget set under the
NOX Budget Program.
The MOA will serve to memorialize an aggregate state-wide budget
and monitoring and reporting requirements for the affected non-EGU
units as well as official annual ozone season NOX reporting
by the State to the EPA. Specifically, the MOA will specify that the
non-EGU budget for the affected units' aggregated emission will not
exceed 745 tons per ozone season (May 1-September 30 of each year). To
ensure that non-EGUs satisfy the requirements under the NOX
SIP Call, the MOA will specify how the emission limits and monitoring,
recordkeeping, and reporting requirements contained in New Jersey's SIP
address the requirements under 40 CFR 51.121(r)(2). Specifically, the
MOA will include a demonstration that the total permitted
NOX emission limits for existing applicable New Jersey non-
EGUs does not exceed 745 tons per ozone season (May 1-September 30 of
each year). The MOA will also include demonstrations that outline
actual NOX emissions from recent ozone seasons (tons/year)
and calendar years (tons/year) that were gathered from the State's
Emission Statement Program. Also, the MOA will outline New Jersey's
SIP-approved regulations and associated permit requirements for non-EGU
facilities regarding continuous emission monitoring and source emission
testing. These demonstrations will be incorporated within the MOA, and
the MOA also provides for New Jersey to continue to provide similar
reports on ozone season emissions to EPA for each ozone season in
perpetuity and to take corrective measures should permitted emissions
limits be exceeded. Taken as a whole, EPA believes that in concept, the
MOA as described (and if signed and made effective) will address New
[[Page 58311]]
Jersey's outstanding obligations under the NOX SIP Call and
demonstrates that the removal of New Jersey's NOX Budget
Program (7:27-31) from the SIP will have no consequences for any
sources' operations or emissions or for the attainment or maintenance
of the NAAQS in any area, now or in the future. Furthermore, on October
1, 2007, the EPA had approved a sunset provision of New Jersey
NOX Budget Program. See 72 FR 55666. This federally-approved
sunset provision ended New Jersey's NOX Budget Program for
all sources that were previously covered sources, beginning in 2009.
The EPA will take final action to incorporate by reference New Jersey's
MOA in a future rulemaking action.
III. Environmental Justice Considerations
New Jersey provided a supplement to the SIP submission being
proposed for approval with this rulemaking on May 16, 2023. 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 issues of
concern.
New Jersey has also noted that the State has implemented numerous
initiatives, collaborations, Administrative Orders and Executive Orders
to address the needs and concerns of overburdened communities. New
Jersey provided a timeline of the EJ actions implemented by the State,
both prior to the SIP submittal on August 23, 2018, and subsequent to
it, to note its continued attention to environmental justice in the
State.
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. No. 96), an EJ E.O. issued by Governor Jon Corzine in
2009 (E.O. No. 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. No. 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?'' \13\ 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.
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\13\ Access the mapping application for locating facilities with
an air permit registered with NJDEP's Division of Air Quality from
their website at https://njdep.maps.arcgis.com/app4s/webappviewer/index.html?id=76194937cbbe46b1ab9a9ec37c7d709b.
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The EPA has reviewed this material but has determined that
conducting a comprehensive EJ analysis is not necessary in the context
of this SIP submission for the removal from the SIP of New Jersey's
CAIR NOX Trading Program and the State's NOX
Budget Program, as the CAA and its applicable implementing regulations
neither prohibit nor require such an evaluation of EJ in relation to
the relevant requirements. 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.
However, the EPA expects that this action, which assesses whether
New Jersey's SIP adequately addresses requirements under the
NOX SIP Call for affected non-EGUs, will generally have a
neutral impact on all populations, including communities of color and
low-income groups. At the very least, it will not worsen existing air
quality.
In summary, the EPA concludes, for informational purposes only,
that this proposed rule will not disproportionately harm communities
with environmental justice concerns. New Jersey did evaluate EJ
considerations voluntarily 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
independently of the State's EJ assessment.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed 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 14094 (88 FR 21879, April 11,
2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
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.
In addition, this proposed rulemaking action pertaining to New
Jersey's submissions, 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. 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).
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
[[Page 58312]]
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 NJDEP evaluated environmental justice as part of its SIP
submittal even though the CAA and applicable implementing regulations
neither prohibit nor require an evaluation. The EPA's evaluation of the
NJDEP's environmental justice 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, 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, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024-15705 Filed 7-17-24; 8:45 am]
BILLING CODE 6560-50-P