Proposed Rule2022-07529
Approval of Air Quality Implementation Plans; New Jersey; Removal of Excess Emissions Provision
Primary source
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Published
April 22, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of New Jersey, through the New Jersey Department of Environmental Protection, on December 14, 2017. The revision submitted by New Jersey was in response to a finding of substantial inadequacy and a SIP call published on June 12, 2015, for a provision in the New Jersey SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing approval of the SIP revision and proposing to determine that such SIP revision corrects the deficiency identified in the June 12, 2015, SIP call.
Full Text
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<title>Federal Register, Volume 87 Issue 78 (Friday, April 22, 2022)</title>
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[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Proposed Rules]
[Pages 24090-24092]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07529]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R2-OAR-2021-0912; FRL-9613-01-R2]
Approval of Air Quality Implementation Plans; New Jersey; Removal
of Excess Emissions Provision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of New Jersey, through the New Jersey Department of Environmental
Protection, on December 14, 2017. The revision submitted by New Jersey
was in response to a finding of substantial inadequacy and a SIP call
published on June 12, 2015, for a provision in the New Jersey SIP
related to excess emissions during startup, shutdown, and malfunction
(SSM) events. EPA is proposing approval of the SIP revision and
proposing to determine that such SIP revision corrects the deficiency
identified in the June 12, 2015, SIP call.
DATES: Comments must be received on or before May 23, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2021-0912 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://regulations.gov">regulations.gov</a>. EPA may publish any comment received to its public
docket. Do not electronically submit any information you consider to be
Confidential Business Information (CBI) or other information, the
disclosure of which 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. 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Edward J. Linky, EPA Region 2, 290
Broadway, 25th floor, New York, New York 10007-1866, at 212-637-3764;
or email <a href="/cdn-cgi/l/email-protection#480421262331660d2c3f293a2c082d3829662f273e"><span class="__cf_email__" data-cfemail="e8a481868391c6ad8c9f899a8ca88d9889c68f879e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or
``our'' is used, it refers to EPA.
Table of Contents
I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review
I. Background
On February 22, 2013, EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the Clean Air Act (CAA) with regard to excess emission events.\1\ For
each SIP provision that EPA determined to be inconsistent with the CAA,
EPA proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined its
updated policy that affirmative defense SIP provisions are not
consistent with CAA requirements. EPA proposed in the supplemental
proposal document to apply its revised interpretation of the CAA to
specific affirmative defense SIP
[[Page 24091]]
provisions and proposed SIP calls for those provisions where
appropriate (79 FR 55920, September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016. The detailed rationale for issuing the SIP
call to New Jersey can be found in the 2015 SSM SIP Action and
preceding proposed actions.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to New Jersey in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
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\2\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\4\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
agency takes action on SIP submissions, including this SIP submittal
provided in response to the 2015 SIP call.
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\3\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\4\ 80 FR 33840, June 12, 2015.
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With regard to the New Jersey SIP, in the 2015 SSM SIP Action EPA
determined that N.J. Admin. Code 7:27-7.2(k)(2) was substantially
inadequate to meet CAA requirements (80 FR 33960). The provision
provided industrial process units that have the potential to emit
sulfur compounds an exemption from the otherwise applicable sulfur
emission limitations where ``the discharge from any stack or chimney
[has] the sole function of relieving pressure of gas, vapor or liquid
under abnormal emergency conditions'' (N.J. Admin. Code 7:27-
7.2(k)(2)). The rationale underlying EPA's determination that the
provision was substantially inadequate to meet CAA requirements, and
therefore to issue a SIP call to New Jersey to remedy the provision, is
detailed in the 2015 SSM SIP Action and the accompanying proposals.
New Jersey submitted a SIP revision on December 14, 2017, in
response to the SIP call issued in the 2015 SSM SIP Action. In its
submission, New Jersey is requesting that EPA approve a revised N.J.
Admin. Code 7:27-7.2(k), which deletes N.J. Admin. Code 7:27-7.2(k)(2)
in its entirety, thereby removing the provision for which EPA issued a
SIP call in 2015 from the New Jersey SIP. The December 14, 2017, SIP
submittal also includes proposed revisions to other portions of the New
Jersey SIP which will be addressed in a separate rulemaking action.
II. Analysis of SIP Submission
EPA is proposing to approve New Jersey's December 14, 2017, SIP
submission with respect to N.J. Admin. Code 7:27-7.2(k), which would
remove the SIP called provision, N.J. Admin. Code 7:27-7.2(k)(2), from
the New Jersey SIP. EPA proposes to find that New Jersey's December 14,
2017, SIP submittal is consistent with CAA requirements and adequately
addresses the specific deficiencies that EPA identified in the 2015 SSM
SIP Action with respect to the New Jersey SIP.
III. Proposed Action
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). EPA is
proposing to approve New Jersey's December 14, 2017 SIP submission
requesting that EPA approve into the SIP a revised N.J. Admin. Code
7:27-7.2(k), which removes N.J. Admin. Code 7:27-7.2(k)(2) from the New
Jersey SIP. EPA is proposing approval of the SIP revision because we
have determined that it is consistent with the requirements for SIP
provisions under the CAA. EPA is further proposing to determine that
such SIP revision corrects the deficiency identified in the June 12,
2015 SIP call. EPA is not reopening the 2015 SSM SIP Action and is only
taking comment on whether this proposed SIP revision is consistent with
CAA requirements.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final rule,
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference revisions to portions of Title 7, Chapter 27, Subchapter 7 of
the New Jersey Administrative Code as discussed in section II of this
preamble. EPA has made, and will continue to make, these documents
generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at EPA
Region 2 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. 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).
[[Page 24092]]
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. Accordingly,
this proposed action merely approves removal of State law not meeting
Federal requirements and does not impose additional requirements beyond
those already imposed by State law. For that reason, this proposed
action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The New Jersey SIP does not apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, this
rulemaking does not have tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), nor will it impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2022-07529 Filed 4-21-22; 8:45 am]
BILLING CODE 6560-50-P
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