E9-944. Approval and Promulgation of Implementation Plans; New Jersey Reasonable Further Progress Plans, Reasonably Available Control Technology, Reasonably Available Control Measures and Conformity Budgets

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing action on portions of two State Implementation Plan revisions submitted by New Jersey that are intended to meet several Clean Air Act (Act) requirements for attaining the 0.08 part per million (ppm) 8-hour ozone national ambient air quality standards. EPA is proposing approval of: The 2008 reasonable further progress plan and associated 2008 ozone projection year emission inventories, contingency measures for the 2008 reasonable further progress plan, 2008 conformity budgets used for planning purposes, and the reasonably available control measure analysis. In addition, EPA is proposing a conditional approval of New Jersey's efforts to meet the reasonably available control technology requirement. The intended effect of this action is to approve those programs that meet Act requirements and to further achieve emission reductions that will be critical to attainment of the national ambient air quality standard for ozone in New Jersey's two nonattainment areas.

DATES:

Comments must be received on or before February 17, 2009.

ADDRESSES:

Submit your comments, identified by Docket Number EPA-R02-OAR-2008-0497, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone]
• Mail: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
• Hand Delivery: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Instructions: Direct your comments to Docket No. EPA-R02-OAR-2008-0497. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. EPA requests, if at all possible, that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Raymond Forde ([e-mail]) concerning emission inventories and reasonable further progress and Paul Truchan ([e-mail]) concerning other portions of the SIP revision, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Proposing?

II. Background Information

A. What Are the Act Requirements for a Moderate 8-Hr Ozone Nonattainment Area?

1. History and Time Frame for the State's Attainment Demonstration SIP

2. Moderate Area Requirements

III. What Was Included in New Jersey's SIP Submittals?

IV. EPA's Review and Technical Information

A. Emission Inventories

1. What Are the Act Requirements?

2. What Emission Inventories Were Included in the SIP?

3. What Is EPA's Evaluation?

B. Reasonable Further Progress Plans

1. What are the Act Requirements?

2. What Reasonable Further Progress Plans Were Included in the SIP?

3. What Is EPA's Evaluation?

C. Contingency Measures

1. What Are the Act Requirements?

2. What Contingency Measures Were Included in the SIP?

3. What Is EPA's Evaluation?

D. RACT for Stationary Sources

1. What Are the Act Requirements?

2. How Did New Jersey Perform Its RACT Analysis?

3. What Were the Results of New Jersey's Analysis of RACT for Stationary Sources?

4. What Is EPA's Evaluation?

E. RACM Analysis

1. What Are the Act Requirements?

2. How Did the State Perform the RACM Analysis?

3. What Were the Results of the RACM Analysis?

4. What Is EPA's Evaluation?

F. Conformity Budgets

1. What Are the Act Requirements?

2. What Conformity Budgets Were Included in the SIP?

3. What Is EPA's Evaluation?

V. What Are EPA's Conclusions?

VI. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing?

The Environmental Protection Agency (EPA) has reviewed elements of New Jersey's comprehensive State Implementation Plan (SIP) revision for the 0.08 ppm 8-hour ozone national ambient air quality standards (NAAQS or standard) ^[1] along with other related Clean Air Act (Act) requirements necessary to ensure attainment of the standard. The EPA is proposing approval of: the 2008 reasonable further progress plan and associated 2008 ozone projection emission inventories, contingency measures for the 2008 reasonable further progress plan, 2008 conformity budgets used for planning purposes, and the reasonably available control measure analysis, because the State of New Jersey's Department of Environmental Protection (NJDEP) has fully addressed the Act's requirements. In addition, while EPA commends New Jersey for its excellent effort to meet the reasonably available control technology (RACT) requirement, EPA is unable to fully approve the State's RACT SIP revision because portions of the submission are deficient. Because the State has committed to correct the deficiencies by April 1, 2009, which is no more than one year from our anticipated final action on the SIP, we are proposing to conditionally approve this component of the SIP submittal. At this time, EPA is continuing to review the other components of the New Jersey submission and plans to address those other components of the SIP submittal in one or more separate proposed actions in the near future.

EPA's analysis and findings are discussed in this proposed rulemaking and a more detailed discussion is contained in the Technical Support Document for this Proposal which is available on line at http://www.regulations.gov, Docket number EPA-R02-OAR-2008-0497.

II. Background Information

A. What Are the Act Requirements for a Moderate 8-Hr Ozone Nonattainment Area?

1. History and Time Frame for the State's Attainment Demonstration SIP

In 1997, EPA revised the health-based NAAQS for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially with regard to children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.

On April 30, 2004 (69 FR 23951), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 8-hour ozone standard. These actions became effective on June 15, 2004. The entire state of New Jersey is located in two multi-state 8-hour ozone moderate nonattainment areas, the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area, and the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area. The New Jersey portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area consists of the following New Jersey counties: Bergen, Essex, Hudson, Hunterdon, Middlesex, Morris, Monmouth, Passaic, Somerset, Sussex, Union and Warren and will be referred to as the Northern New Jersey Counties. The New Jersey portion of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area consists of the following New Jersey counties: Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Ocean, Mercer and Salem and will be referred to as the Southern New Jersey Counties.

These designations triggered the Act's requirements under section 182(b) for moderate nonattainment areas, including a requirement to submit an attainment demonstration. EPA's Phase 1 8-hour ozone implementation rule, published on April 30, 2004 (69 FR 23951) (Phase 1 Rule) specifies that states must submit attainment demonstrations for their nonattainment areas to the EPA by no later than three years from the effective date of designation, that is, by June 15, 2007.

2. Moderate Area Requirements

On November 9, 2005, EPA published Phase 2 of the 8-hour ozone implementation rule (70 FR 71612) (Phase 2 Rule) in which it addresses the control obligations that apply to areas designated nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and Phase 2 Rules outline the SIP requirements and deadlines for various requirements in areas designated as moderate nonattainment. For such areas, reasonably available control technology plans were due by September 2006 (40 CFR 51.912(a)(2)). The rules further require that modeling and attainment demonstrations, reasonable further progress plans, reasonably available control measures, projection year emission inventories, motor vehicle emissions budgets and contingency measures were all due by June 15, 2007 (40 CFR 51.908(a), and (c)).

III. What Was Included in New Jersey's SIP Submittals?

After completing the appropriate public notice and comment procedures, New Jersey made a series of submittals in order to address the Act's 8-hour ozone attainment requirements described in Section II.A.2. On August 1, 2007, New Jersey submitted its RACT rules, which included a determination that many of the RACT rules currently contained in its SIP meet the RACT obligation for the 8-hour standard, and also included commitments to adopt revisions to several regulations where the State identified more stringent emission limitations that it believed should now be considered RACT. On October 29, 2007, New Jersey submitted a comprehensive 8-hour ozone SIP for the New Jersey portions of the New York-Northern New Jersey-Long Island, NY-NJ-CT and the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment areas. It included attainment demonstrations, reasonable further progress (RFP) plans for 2008 and 2009, reasonably available control measures analyses for both areas, contingency measures, on-road motor vehicle emission budgets, and general conformity emission budgets for McGuire Air Force Base and Lakehurst Naval Air Station. These SIP revisions were subject to notice and comment by the public and the State addressed the comments received on the proposed SIPs before adopting the plans and submitting them for EPA review and approval into the SIP. Finally, as part of the RACT evaluation, on December 14, 2007, New Jersey submitted to EPA an assessment of how it planned to address EPA's recently revised Control Technique Guidelines (CTGs).

IV. EPA's Review and Technical Information

A. Emission Inventories

1. What Are the Act Requirements?

An emissions inventory is a comprehensive, accurate, current inventory of actual emissions from all sources and is required by section 172(c)(3) of the Act. For ozone nonattainment areas, the emissions inventory must contain volatile organic compounds (VOC) and nitrogen oxides (NO_X) emissions because these pollutants are precursors to ozone formation.

2. What Emission Inventories Were Included in the SIP?

a. 2002 Base Year

New Jersey submitted its proposed 2002 Base Year emission inventories on February 21, 2006 and final 2002 Base Year emission inventories on May 18, 2006. EPA proposed to approve New Jersey's 2002 Base Year inventories on May 9, 2006 (71 FR 26895) and approved the emission inventories on July 10, 2006 (71 FR 38770). The reader is referred to these rulemakings for additional information concerning the emission inventories and EPA's approval. A summary of the 2002 base year emission inventory is included in Tables 1 and 2 of this action.

b. Projection Years

The 2002 VOC and NO_X anthropogenic emissions are projected to 2008 and 2009 in order to determine the VOC and NO_X reductions needed for the rate of progress plans and for the attainment demonstrations. The 2008 and 2009 projection year emission inventories are calculated by adjusting the 2002 base year inventory using factors that estimate growth from 2002 to 2008 and 2009. EPA requires specific growth factors be considered for each source type in the inventory since sources typically change at different rates. The 2008 and 2009 inventories were also adjusted by the State to reflect the benefits of control measures that were adopted since the 2002 emission inventory and those that are expected to be adopted. Tables 1 and 2 show 2008 and 2009 VOC and NO_X projection emission inventories after applying the appropriate growth indicators/methodologies to the 2002 base year emission inventory for New Jersey's portion of each ozone nonattainment area and to the expected controls.

Table 1—Northern New Jersey Counties 2002 Base Year, 2008 and 2009 Projection Year Emission Inventories

	Ozone season VOC and NOX emissions (in tons/day)
	2002 Base year actual inventory		2008 Projection year inventory controlled		2009 Projection year inventory controlled
	VOC	NOX	VOC	NOX	VOC	NOX
Point	68.2	152.7	50.5	51.3	48.9	53.8
Area	243.5	24.4	218.7	21.8	210.8	22
Non-Road Mobile	121.6	161	87.9	120.9	82.2	117.2
On-Road Mobile	183	378.9	85.3	143.6	79	133.5
Total	616.3	717	442.4	337.6	420.9	326.5

Table 2—Southern New Jersey Counties 2002 Base Year, 2008 and 2009 Projection Year Emission Inventories

	Ozone season VOC and NOX emissions (in tons/day)
	2002 Base year actual inventory		2008 Projection year inventory controlled		2009 Projection year inventory controlled
	VOC	NOX	VOC	NOX	VOC	NOX
Point	45.4	127.7	28	17.5	26	25.9
Area	126.4	11.5	114.8	10.5	110.3	10.6
Non-Road Mobile	99	70.6	80.1	63.18	76.2	62.13
On-Road Mobile	91.8	179.8	48.8	111.3	45.4	105.9
Total	362.6	389.6	271.7	202.48	257.9	204.53

3. What Is EPA's Evaluation?

Based on EPA review, the 2008 and 2009 inventories are determined to be complete and consistent with EPA guidance. A more detailed discussion of how the emission inventories were reviewed and the results of these reviews is provided in the Technical Support Document for this action. Since the 2009 emission inventory is an integral part of the attainment demonstration which EPA is not acting on at this time, EPA is deferring action on the 2009 emission inventory. EPA will act on the 2009 projection year emission inventory when it acts on the attainment demonstration. EPA is proposing to approve the 2008 projection year emission inventories as the State used them in developing the RFP Plans.

B. Reasonable Further Progress Plans

1. What Are the Act Requirements?

Section 182(b)(1) of the Act and EPA's 8-hour ozone implementation rule (40 CFR 51.910) require each 8-hour ozone nonattainment area designated moderate and above to submit an emissions inventory and RFP Plan, for review and approval into its SIP, that describes how the area will achieve actual emissions reductions of VOC and NO_X from a baseline emissions inventory.

The process for determining the emissions baseline from which the RFP reductions are calculated is described in section 182(b)(1) of the Act and 40 CFR 51.910. This baseline value has been determined to be the 2002 adjusted base year inventory. Sections 182(b)(1)(B) and (D) require the exclusion from the base year inventory of emissions benefits resulting from the Federal Motor Vehicle Control Program (FMVCP) regulations promulgated by January 1, 1990, and the Reid Vapor Pressure (RVP) regulations promulgated June 11, 1990 (55 FR 23666). The FMVCP and RVP emissions reductions are determined by the State using EPA's on-road mobile source emissions modeling software, MOBILE6. The FMVCP and RVP emission reductions are then removed from the base year inventory by the State, resulting in an adjusted base year inventory. The emission reductions needed to satisfy the RFP requirement are then calculated from the adjusted base year inventory. These reductions are then subtracted from the adjusted base year inventory to establish the emissions target for the RFP milestone year (2008).

For moderate areas like New Jersey's, the Act specifies a 15 percent reduction in ozone precursor emissions over an initial six year period. In the Phase 2 Rule, EPA interpreted this requirement for areas that were also designated nonattainment and classified as moderate or higher for the 1-hour ozone standard. In the Phase 2 Rule, EPA provided that an area classified as moderate or higher that has the same boundaries as an area, or is entirely composed of several areas or portions of areas, for which EPA fully approved a 15 percent plan for the 1-hour NAAQS, is considered to have met the requirements of section 182(b)(1) of the Act for the 8-hour NAAQS. In this situation, a moderate nonattainment area is subject to RFP under section 172(c)(2) of the Act and shall submit, no later than 3 years after designation for the 8-hour NAAQS, a SIP revision that meets the requirements of 40 CFR 51.910(b)(2). The RFP SIP must provide for a 15 percent emission reduction (either NO_X and/or VOC) accounting for any growth that occurs during the six year period following the baseline emissions inventory year, that is, 2002-2008. The section 182 and 172 requirements differ in that section 182(b)(1) specifies that it must be a 15 percent VOC reduction where section 172(c)(2) provides that the 15 percent reduction can be either a VOC and/or NO_X reduction.

2. What Reasonable Further Progress Plans Were Included in the SIP?

New Jersey followed EPA's requirements and guidance in calculating the “adjusted baseline inventory,” 2008 target level emissions and the RFP emission reductions. The total emission reductions required to meet the 2008 target level in the Northern and Southern New Jersey Counties are 96.65 tons per day (tpd) and 59.96 tpd, respectively. New Jersey's RFP Plans for the Northern and Southern New Jersey Counties are summarized in Table 3. Based on Table 3, New Jersey's VOC control plan for the Northern and Southern New Jersey Counties meets the 15 percent reduction requirements and, in addition, results in a 70.15 tpd reduction surplus in the Northern New Jersey Counties and a 30.64 tpd reduction surplus in the Southern New Jersey Counties.

Table 3—VOC Measures Included in the New Jersey 2008 RFP Plan

VOC control measures	Northern NJ counties (tons per day)	Southern NJ counties (tons per day)
Required Reduction In VOC To Meet 2008 Milestone	96.65	59.96
Non-Road Mobile Source:
Portable Fuel Containers 2005	1	.4
Non-road Mobile Federal Control Measures	45	24.3
On-Road Mobile Source:
Stage II (Gasoline Transfer Operations)	1.3	.8
Onboard Diagnostic (OBD) I/M	2.9	1.6
Total Federal Control Measures Benefits In Mobile Model	82.5	48.0
Stationary Area Source:
Autobody (Mobile Equipment Repair and Refinishing)	1.5	.5
Solvent Cleaning (Degreasing)	2.4	.8
Consumer Products 2005	3.6	0
Portable Fuel Containers (2005 and 2009)	2.6	0.6
Stage I (Gasoline Transfer Operations-Balanced Submerged Filling)	5.9	2.9
Total VOC Benefits From All Sources	148.7	79.9
Reduction Surplus	52.05	19.94

3. What Is EPA's Evaluation?

New Jersey determined the required emission reductions for its RFP plan consistent with the Act, as interpreted in EPA's regulations, guidance and policies. All the measures included in the New Jersey RFP Plans have been adopted. New Jersey also generated a significant amount of NO_X reductions that could be used for RFP. The emission reduction benefits from certain measures have been divided between the RFP and the contingency measure requirements, but are not being double counted. Even without these measures, the RFP plans contain sufficient emission reductions to satisfy the RFP requirement, therefore EPA is proposing to approve the RFP Plans.

C. Contingency Measures

1. What Are the Act Requirements?

For ozone nonattainment areas classified as moderate or above, states must include in their submittal contingency measures to be implemented if the area fails to make RFP or to attain the NAAQS by the applicable attainment date (sections 172(c)(9) and 182(c)(9)). Contingency measures are additional controls to be implemented in the event the area fails to meet an RFP or attainment milestone. They are intended to achieve reductions over and beyond those relied on in the RFP and attainment demonstrations. The Act does not preclude a state from implementing such measures before they are triggered. EPA interprets the Act to require sufficient contingency measures in the submittal, so that upon implementation of such measures, additional emissions reductions of up to three percent of the adjusted base year inventory (or a lesser percentage that will make up for the identified shortfall) would be achieved in the year after the failure has been identified. For more information on contingency measures please see the April 16, 1992 General Preamble (57 FR 13512) and the November 29, 2005 Phase 2 8-hour ozone implementation rule (70 FR 71612).

2. What Contingency Measures Were Included in the SIP?

The New Jersey SIP includes the control measures that will provide additional emission reductions should the State not achieve the 15 percent RFP target in 2008 and/or attainment in 2010. The 2010 contingency measures are not included in the attainment demonstration, but since EPA is not acting on the attainment demonstration in this action, EPA is deferring action on the contingency measures for attainment. EPA will act on these measures when it acts on the attainment demonstration.

Based on the 3 percent reduction needed for RFP contingency, and using only VOC emission reductions in 2008, New Jersey calculated it would need 18.1 tpd of VOC emission reduction in the Northern New Jersey Counties and 10.7 tpd of VOC emission reduction in the Southern New Jersey Counties should New Jersey fail to meet RFP. The measures and associated emission reductions are identified in Table 4 and the emission reductions are not relied on in the RFP or in the attainment demonstration.

Table 4—VOC Reductions for Reasonable Further Progress Contingency Measures for 2008

[Ozone season tons per day]

	VOC (TPD)
Northern New Jersey Counties
Contingency Requirement: 3 percent VOC	18.1
Control Measures:
Architectural Coatings 2005	15
Consumer Products 2005	3.1
Reductions allocated to RFP contingency	18.1
Southern New Jersey Counties
Contingency Requirement: 3 percent VOC	10.7
Control Measures:
Architectural Coatings 2005	7
Consumer Products 2005	3
Portable Fuel Containers 2005 and 2009	0.7
Reductions allocated to RFP contingency	10.7

3. What Is EPA's Evaluation?

New Jersey determined the required emission reductions for its RFP contingency plans consistent with the Act, as interpreted in EPA's regulations, guidance and policies and identified the specific measures needed to achieve them. All the emission reductions included in the RFP contingency plans are from adopted measures. EPA is proposing to approve the State's RFP contingency plans.

D. RACT for Stationary Sources

1. What Are the Act Requirements?

Sections 172(c)(1), 182(b)(2) and 182(f) of the Act require nonattainment areas that are designated as moderate or above for ozone to adopt RACT. All of New Jersey is subject to this requirement since all counties in the State are located in either of two nonattainment areas that are classified as moderate ozone nonattainment areas for the 8-hour NAAQS for ozone (40 CFR 81.331). In accordance with section 182(b), New Jersey must, at a minimum, adopt RACT level controls for sources covered by a Control Techniques Guidelines (CTG) document and for any major non-CTG sources.

Section IV.G of EPA's Phase 2 Rule discusses the RACT requirements. It states, in part, that where a RACT SIP is required, SIPs implementing the 8-hour standard generally must assure that RACT is met, either through a certification that previously required RACT controls represent RACT for 8-hour implementation purposes or, where necessary, through a new RACT determination. The majority of counties in New Jersey were previously classified under the 1-hour ozone NAAQS as severe, while the remaining counties were subject to RACT as part of the Ozone Transport Region. New Jersey chose a uniform applicability level for RACT based on the severe classification which resulted in a statewide requirement for major sources to be defined as those having emissions of 25 tons per year or more for both VOC and NO_X. In areas classified as moderate, the definition for major sources in New Jersey would have been 50 tons per year for VOC and 100 tons per year for NO_X. However, New Jersey chose to retain the original 1-hour ozone limits statewide in New Jersey for purposes of the RACT analysis resulting in a more stringent evaluation of RACT. New Jersey's use of 25 tons per year for RACT is consistent with court decision concerning anti-backsliding. See South Coast Air Quality Management Dist. (SCAQMD) v. EPA, 472 F.3d 882 (D.C. Cir. 2006).

2. How Did New Jersey Perform Its RACT Analysis?

New Jersey combined the results of three separate information gathering efforts from industry, environmental groups and the general public in order to get the greatest input on the stringency of the existing requirements and the possibility of new RACT controls. The first effort was the exchange of information and experience through a public forum entitled, “Reducing Air Pollution Together” (a multi-pollutant effort), the second was through state participation in regional control development efforts, and the third was an internal NJDEP assessment of RACT controls. The internal assessment also included a review of EPA's 56 CTGs and Alternative Control Techniques (ACTs) where the CTG's and ACT's level of control and applicability were compared to New Jersey's regulations. The results of these three efforts were consolidated and presented to the NJDEP Air Quality Management team for its consideration. The Air Quality Management team then discussed and prioritized the recommendations resulting in a list of approximately 60 potential control measures for further evaluation. The NJDEP's engineers and scientists were assigned the task of further investigating and writing white papers for each potential control measure. Each control measure was evaluated based on information collected regarding emission benefits, implementation issues, cost-effectiveness, and existing controls.

The white papers were then made available to the public for its review and comment and the evaluated control measures were added to the other recommended control measures for further evaluation. New Jersey's RACT evaluation, “Reasonably Available Control Technology (RACT) for the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) and other Associated State Implementation Plan (SIP) Revisions for the Fine Particulate Matter National Ambient Air Quality Standard (NAAQS), Regional Haze, and the Clean Air Act Requirements on Transport of Air Pollution” dated August 1, 2007, addressed approximately 115 source categories covering multiple pollutants, as well as New Jersey's commitments to adopt more stringent controls for the 8-hour ozone, PM2.5 and Regional Haze SIPs and was the subject of a public hearing.

3. What Were the Results of New Jersey's Analysis of RACT for Stationary Sources?

a. CTGs and ACTs

New Jersey has implemented RACT controls statewide for the 56 CTGs and ACTs that EPA has issued to meet the requirements of the Act. These RACT controls were promulgated in the New Jersey Administrative Code, Title 7: Chapter 27, Air Pollution Control in:

—Subchapter 16, “Control and Prohibition of Air Pollution by Volatile Organic Compounds,”

—Subchapter 19, “Control and Prohibition of Air Pollution from Oxides of Nitrogen,” and

—Subchapter 23, “Prevention of Air Pollution From Architectural Coatings.”

The New Jersey RACT SIP contains a table (see Table 4—RACT Determinations Based on Existing USEPA Guidance) listing all the CTG and ACT categories (56 categories in total) and the corresponding Subchapter and section which address the requirements. These have all been approved by EPA and made part of the SIP.

For many source categories, the existing New Jersey rules go beyond the recommendations contained in the CTG/ACT documents in terms of more stringent emission rates and lower thresholds of applicability. New Jersey identified several categories where controls may be more stringent and these are included in Section D.3.d. below. Based on the August 1, 2007 RACT evaluation, New Jersey's existing RACT rules for the remaining CTG and ACT categories met the RACT requirement for the 8-hour ozone NAAQS implementation purposes.

b. Negative Declaration

By comparing the sources covered in the existing CTGs and ACTs with New Jersey's adopted rules, and searching the New Jersey Environmental Management System permitting and emission inventory databases, and emission statements for source categories by Standard Industrial Code (SIC), New Jersey determined that for the following CTGs and ACTs, either no sources exist in New Jersey, or the sources fall below the CTG/ACT applicability thresholds:

(1) Surface Coating of Automobiles and Light-Duty Trucks;

(2) Manufacture of Vegetable Oils;

(3) Manufacture of Pneumatic Rubber Tires;

(4) Aerospace Coatings;

(5) Iron and Steel Mills;

(6) Cement Manufacturing;

(7) Nitric and Adipic Manufacturing Plants;

(8) Flat Wood Paneling Coatings; and

(9) Shipbuilding and Ship Repair Operations.

New Jersey will review all new CTGs issued by EPA since the preparation of this SIP revision and adopt provisions to address any new requirements for those categories for which sources exist in the State. This includes those covered by the present negative declaration.

c. Facility-Specific Emission Limits and Alternative Emission Limits

The requirement to review and update 1-hour ozone RACT SIP limits also applies to any uniquely determined RACT limits for major stationary sources that are located in nonattainment areas. In New Jersey, uniquely determined RACT limits may result from two situations: Where major sources are not regulated by a CTG but are still required to have controls based on its size and on a requirement to perform a case-by-case determination (facility specific emission limit (FSEL)), or where the facility could not reasonably meet the RACT limit because of site specific factors and applied for an alternative emission limit (AEL). In both cases the limits are adopted by the State and approved into the SIP.

As part of the 8-hr ozone RACT determination, New Jersey is including new source categories required to have RACT and tightening emission limits for some source categories that would be applicable to all sources, including some which had a FSEL or AEL. At the same time, New Jersey is requiring all facilities that were previously granted FSELs or AELs to now comply with the new emission requirements were applicable, or obtain a new FSEL if the source category still has no specific RACT limits in the rule. Should any facility not be able to meet the new rule requirements, it could apply for a new AEL that would be based on the facilities abilities to comply with current technology and the present cost of those controls.

d. Source Categories Identified for Further Control

The results of NJDEP's assessment of RACT for the CTG and ACT categories, non-CTG major sources regulated by the State, as well as categories identified by the regional and local workgroups are identified in Table 5. Table 5 lists the RACT source categories for which the State will propose new or revised emission standards along with the targeted pollutants and affected rules and categories which will be the subject of future rule revisions.

Table 5—Summary of New Jersey Candidate Source Categories and Future Rule Revisions

Candidate source categories	Targeted pollutants				Affected rules
	NOX	VOC	SO2	PM2.5
Ozone Transport Commission (OTC)
Asphalt Paving		X			N.J.A.C.1 7:27-16.19.
Asphalt Production	X				N.J.A.C. 7:27-19.9.
Glass Furnaces	X				N.J.A.C. 7:27-19.2, 19.10.
Industrial Adhesives & Sealants		X			N.J.A.C. 7:27-26 (New Rule).
Industrial, Commercial & Institutional Boilers	X				N.J.A.C. 7:27-19.2, 19.7.
Coal-fired EGU 2 Boilers	X		X	X	N.J.A.C. 7:27-4, 10 & 19.4.
EGUs	X				N.J.A.C. 7:27-19.4.
High Electrical Demand Day EGUs	X				N.J.A.C. 7:27-19.4, 19.5, & 19.29.
Mid-Atlantic Regional Air Management Association (MARAMA)
Petroleum Refineries 4	X	X	X		N.J.A.C. 7:27-33 (New Rule).
State of New Jersey
Petroleum and VOC Storage Tanks		X			N.J.A.C. 7:27-16.2.
Facility-Specific Emission Limit & Alternative Emission Limit	X	X			N.J.A.C. 7:27-16.17 & 19.13.
BART 3-affected Equipment	X		X	X	N.J.A.C. 7:27-33 (New rule).
Municipal Waste Combustors	X				N.J.A.C. 7:27-19.12.
Publicly-owned Treatment Works (sewage sludge incinerators)	X				N.J.A.C. 7:27-19.28.
CTGs issued after 2006 4		X			N.J.A.C. 7:27-16.7.
Process Heaters & Boilers at Petroleum Refineries 4	X				N.J.A.C. 7:27-33 (New Rule).
1 N.J.A.C.—New Jersey Administrative Code.
2 EGU—Electric Generating Unit.
3 BART—Best Available Retrofit Technology.
4 Future Rule Revisions.

4. What Is EPA's Evaluation?

New Jersey submitted a RACT assessment in a SIP revision dated August 1, 2007 and supplemented the submittal on December 14, 2007. New Jersey's RACT analysis included 56 CTG and ACT source categories and over 59 non-CTG source categories.

Of those 115 categories New Jersey has concluded that the RACT rules currently approved into the SIP meet the RACT requirement for 102 categories under the 8-hour ozone standard. New Jersey has identified 13 categories for which it has preliminarily determined that new limits should be proposed. New Jersey has since proposed provisions for all 13 of these categories.

The RACT submission from the State of New Jersey consists of: (1) A certification that previously adopted RACT controls in New Jersey's SIP for 101 source categories that were approved by EPA under the 1-hour ozone NAAQS are based on the currently available technically and economically feasible controls, and that they continue to represent RACT for the 8-hour ozone implementation purposes; (2) a commitment to adopt new or more stringent regulations that represent RACT control levels for both specific source categories and specific sources; and (3) a negative declaration that for certain of CTGs and/or ACTs there are no sources within New Jersey or that there are no sources above the applicability thresholds.

EPA has reviewed the State's RACT analysis and agrees with the State's conclusions. EPA is proposing to conditionally approve the RACT SIP for the 8-hour ozone NAAQS based on New Jersey's commitment to submit adopted RACT rules for 13 source categories by April 1, 2009. We believe that New Jersey will be able to meet this commitment because the State has already proposed RACT provisions for all 13 source categories and has recently adopted a rule for one of the source categories and the comment period for the remaining categories has closed.

E. RACM Analysis

1. What Are the Act Requirements?

Pursuant to section 172(c)(1) of the Act, states are required to implement all Reasonably Available Control Measures (RACM) as expeditiously as practicable. Specifically, section 172(c)(1) states the following: “In general—Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.”

Furthermore, in EPA's Phase 2 Rule, EPA describes how states must include with their attainment demonstration a RACM analysis (70 FR 71659). The purpose of the RACM analysis is to determine whether or not reasonably available control measures exist that would advance the attainment date for nonattainment areas. Control measures that would advance the attainment date are considered RACM and must be included in the SIP. RACM are necessary to ensure that the attainment date is achieved “as expeditious as practicable.”

RACM is defined by the EPA as any potential control measure for application to point, area, on-road and non-road emission source categories that meets the following criteria:

• The control measure is technologically feasible
• The control measure is economically feasible
• The control measure does not cause “substantial widespread and long-term adverse impacts”
• The control measure is not “absurd, unenforceable, or impracticable”
• The control measure can advance the attainment date by at least one year.

2. How Did the State Perform the RACM Analysis?

New Jersey used four separate efforts to identify measures that might be considered as potential RACM: The transportation control measures (TCMs) for on-road mobile sources effort, the non-TCM measures (point, area and off-road sources) effort, the New Jersey workgroup measures effort, and the OTC measures effort.

a. Transportation Control Measures

The New Jersey Department of Transportation (NJDOT), in consultation with the NJDEP, identified 26 measures to be evaluated as prospective mobile source measures that could be considered reasonably available control measures. After identifying these measures, NJDOT analyzed each measure for its potential emissions reduction benefit, economic impact, practicability and potential adverse impact. NJDOT analyzed each prospective emission control measure for each nonattainment area. Eleven measures advanced to the final stage of the RACM analysis.

b. Non-TCM Measures (Point, Area and Off-Road Sources)

NJDEP reviewed a variety of sources of information, such as, those from regional planning organizations, other state organizations, existing NJDEP documents, EPA regional efforts, and “Early Action Compact” plans (plans developed and implemented by some states to avoid being designated nonattainment), to develop a list of 457 potential non-transportation control measures (non-TCMs). After focusing on those measures with significant VOC and NO_X emissions and eliminating those that were already in place in New Jersey and those that are more stringently addressed at the Federal level, a list of 81 potential non-TCMs was advanced to the next phase of the analysis and added to the compiled list.

c. New Jersey Workgroup Measures

New Jersey organized the “Reducing Air Pollution Together Initiative,” which brought together over 200 people representing various industries, environmental and civic groups. Six workgroups were formed to develop potential control measures for NJDEP consideration. A list of 250 potential measures was developed and ranked and the workgroups prepared “White Papers” for 60 measures that passed the next round of evaluations. A more extensive review followed with 21 measures being added to the compiled list of potential RACM measures.

d. OTC Measures

New Jersey worked with the other states that are part of the Ozone Transport Commission to identify regional control measures that would be of greater benefit if implemented by all the states in the OTC region. Several of these control measures were identified for adoption and the remaining measures were added to the compiled list.

e. Compiled Measures

NJDEP compiled a list of 103 non-TCM measures [81 from the Non-TCM (point, area and off-road sources), 21 from NJDEP workgroup (white papers), and 1 OTC measure] and analyzed these measures using the RACM criterion for technological feasibility. A total of 85 measures passed the technological feasibility criterion. Table F2.1 in Appendix F2 of the State's SIP includes a list of all measures considered and the reasons that they passed or failed each RACM criterion. If sufficient information was not available for a technological feasibility determination to be made for a measure, the measure was evaluated for the remaining criteria, and a “N/A” determination was made for technological feasibility. The remaining 85 measures were analyzed for economic feasibility and other local factors, such as whether the measure could be implemented by June 2008.^[2] A total of 17 non-TCM measures advanced to the final stage of analysis. A total of 28 measures, 11 TCMs and 17 non-TCMs, passed the technological feasibility, economic feasibility and “other local considerations” RACM criteria.

3. What Were the Results of the RACM Analysis?

In order for any measure to advance the attainment date of June 2010 to June 2009, the measures would have to be implemented and achieve the emission reductions by June 2008. The combined emission benefits from VOC and NO_X measures were 15.5 tons/day in the Northern New Jersey Counties and 7.4 tons/day in the Southern New Jersey Counties. The State's analysis demonstrated that none of the RACM's, singularly or in combination, will yield emissions benefits sufficient to advance the 2010 attainment date for the two nonattainment areas in which the New Jersey counties are located. Regardless, the State committed to develop and implement five of these measures as part of its RACT control program and New Jersey has proposed all five of these measures for rulemaking.

4. What Is EPA's Evaluation?

New Jersey evaluated all source categories that could contribute meaningful emission reductions and identified and evaluated an extensive list of potential control measures. The State considered the time needed to develop and adopt regulations and the time it would take to see the benefit from these measures as a further screen of their reasonableness and availability. The State has proceeded with developing several of the measures as part of its RACT control program. EPA has reviewed the RACM analysis and finds that there are no RACM that would advance the moderate area attainment date of 2010 for the two nonattainment areas in which the New Jersey counties are located.

Therefore, EPA is proposing to approve New Jersey's moderate area RACM SIP for the two moderate nonattainment areas in which New Jersey is located.

F. Conformity Budgets

1. What Are the Act Requirements?

The Act requires Federal actions in nonattainment and maintenance areas to “conform to” the goals of SIPs. This means that such actions will not: (a) Cause or contribute to violations of a NAAQS; (b) worsen the severity of an existing violation; or (c) delay timely attainment of any NAAQS. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the transportation conformity rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, EPA, and the FHWA and FTA to demonstrate that their long range transportation plans (“plans”) and transportation improvement programs (TIP) conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit projects are less than or equal to the motor vehicle emissions budgets (“budgets”) contained in a SIP. The General Conformity regulation (40 CFR part 93, subpart B) requires actions initiated by other Federal agencies in nonattainment and maintenance areas to also conform to the SIP. One option for Federal agencies to demonstrate conformity is to meet facility-wide emissions budgets that are specified in the SIP. New Jersey has two major Federal facilities for which it has chosen to establish facility-wide emissions budgets.

2. What Conformity Budgets Were Included in the SIP?

Three MPOs cover New Jersey's two ozone nonattainment areas. New Jersey sets budgets per MPO (called “sub-area budgets”), allowing each MPO to make a conformity determination independent of the other two on the condition that the other MPOs in the same nonattainment area have conforming plans and TIPs in place when the new determination is made. Both the Delaware Valley Regional Planning Commission (DVRPC) and the South Jersey Transportation Planning Organization (SJTPO) reside within the Southern New Jersey Counties. Twelve of the thirteen counties covered by the North Jersey Transportation Planning Authority (NJTPA) are within the Northern New Jersey Counties, while one county (Ocean County) is within the Southern New Jersey Counties. Since conformity is determined on a nonattainment area basis, New Jersey is designating separate budgets for Ocean County and the remaining 12-county NJTPA area. As these budgets cover separate nonattainment areas, NJTPA may not combine the Ocean County budget with the 12-county budget to make an overall conformity determination in the event that one area is unable to meet its individual budget; however, this does not preclude NJTPA from making a positive conformity finding in the other area. Table 6 lists New Jersey's submitted budgets.

Table 6—Motor Vehicle Emissions Budgets Submitted by New Jersey

[Tons per day]

MPO	2008		2009
	VOC	NOX	VOC	NOX
NJTPA (except Ocean County)	85.38	143.60	79.00	133.39
NJTPA (Ocean County only)	6.93	8.69	6.45	12.65
DVRPC	27.75	69.67	25.98	63.66
SJTPO	14.14	32.93	13.04	29.64

Table 7 contains emission budgets for McGuire Air Force Base (AFB) and Lakehurst Naval Air Station (NAS). These budgets were established in consultation with the United States Air Force and the Navy and will provide McGuire AFB and Lakehurst NAS the operational flexibility necessary to meet their missions and future missions of the Department of Defense and allow them to meet the requirements of the General Conformity regulation.

Table 7—Emission Budgets for McGuire AFB and Lakehurst NAS

Base	Year	VOC (tons/year)	NOX (tons/year)
McGuire AFB	2008	730	1,534
	2009	730	1,534
	2010	730	1,534
	2011	730	1,534
Lakehurst NAS	2008	109	563
	2009	115	639
	2010	122	716
	2011	129	793

3. What Is EPA's Evaluation?

For budgets to be approvable, they must meet, at a minimum, EPA's adequacy criteria (40 CFR 93.118(e)(4)). EPA made an adequacy determination on New Jersey's 2008 and 2009 budgets on July 17, 2008 (73 FR 41068). In our Notice of Adequacy we found that the budgets were “clearly identified and precisely quantified” and were “consistent with applicable requirements.* * *” We also found that the budgets were “consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy implementation plan revision.” The budgets are identical to the projected 2008 and 2009 on-road mobile source emission inventories.

When EPA determines that budgets are adequate for transportation conformity, we note that an adequacy finding does not imply that budgets will ultimately be approved. In our adequacy determination EPA found that the 2009 budgets demonstrate additional progress toward attainment, however, since EPA will be taking action on the attainment demonstration at a later date, EPA will at that time take action on the 2009 budgets. Consistent with our adequacy review of New Jersey's submittal, EPA is proposing to approve New Jersey's 2008 budgets associated with the 2008 RFP budgets. EPA is also proposing to approve the general conformity budgets for McGuire AFB and Lakehurst NAS.

V. What Are EPA's Conclusions?

EPA is proposing to approve the following SIP elements required by the Act: 2008 RFP and associated 2008 ozone projection year emission inventories, contingency measures for failure to meet the 2008 RFP milestone, 2008 conformity budgets used for planning purposes, moderate area RACM analysis, and general conformity budgets.

EPA has reviewed the State's RACT analysis and agrees with the State's conclusions. EPA is proposing to conditionally approve the RACT analysis for the 8-hour ozone NAAQS based on New Jersey's commitment to submit adopted RACT rules for 13 source categories by April 1, 2009. We believe that New Jersey will be able to meet this commitment because the State has proposed RACT rules for all 13 source categories and has recently adopted a rule for one of these source categories.

EPA is proposing to conditionally approve the RACT analysis based on a commitment submitted by New Jersey. Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to adopt the identified regulations. If the State fails to do so, this action will become a disapproval upon the State's failure to meet its commitment. EPA will notify the State by letter that this action has occurred. If the conditional approval converts to a disapproval, the commitment will no longer be a part of the approved New Jersey SIP. Upon notification of the State that the conditional approval has converted to a disapproval, EPA will publish a notice in the Federal Register notifying the public that the conditional approval automatically converted to a disapproval. If the State meets its commitment, within the applicable time frame, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revision. If EPA disapproves the RACT SIP submittal, such action will start a sanctions and FIP clock. If EPA approves the submittal, the RACT analysis will be fully approved in its entirety and will replace the RACT conditionally approved into the SIP.

EPA is not taking action at this time on New Jersey's attainment demonstrations for the New York-Northern New Jersey-Long Island, NY-NJ-CT and the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour ozone moderate nonattainment areas, but will do so in a future rulemaking.

VI. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Oxides of nitrogen
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: December 29, 2008.

Alan J. Steinberg,

Regional Administrator, Region 2.

Footnotes

1.  Unless otherwise specifically noted in the action, references to the 8-hour ozone standard are to the 0.08 ppm ozone standard promulgated in 1997.

2.  June 2008 was selected as measures would need to be implemented by that time in order to advance the attainment date. Measures relied on for attainment need to be implemented by the beginning of the final full ozone season preceding the attainment date. Thus, to advance attainment to 2009, measures would need to be implemented by the beginning of the 2008 ozone season.