[Federal Register Volume 63, Number 168 (Monday, August 31, 1998)]
[Proposed Rules]
[Pages 46209-46212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23323]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. NJ31-1-182, FRL-6153-9]
Approval and Promulgation of Implementation Plans; Reasonably
Available Control Technology for Oxides of Nitrogen for the State of
New Jersey
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes approval of revisions to the New Jersey State
Implementation Plan (SIP) for ozone. This portion of the implementation
plan was submitted by the State as an amendment to New Jersey's rules
for the application of reasonably available control technology (RACT)
for oxides of nitrogen (NOX) in the entire State. The Clean
Air Act (the Act) requires implementation of NOX RACT at
major stationary sources of NOX emissions in the State of
New Jersey by May 31, 1995.
DATES: Comments must be received on or before September 30, 1998.
ADDRESSES: All comments should be addressed to: Ronald Borsellino,
Chief, Air Programs Branch, Environmental Protection Agency, Region 2
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
Copies of the state submittal and other information are available
at the following addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air Programs Branch,
290 Broadway, 25th floor, New York, New York 10007-1866.
New Jersey Department of Environmental Protection, Office of Air
Quality Management, Bureau of Air Quality Planning, 401 East State
Street, CN418, Trenton, New Jersey 08625.
FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th floor, New York,
New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for the reduction of
NOX emissions through application of RACT are set out in
section 182(f) of the Act. The EPA described Sec. 182(f) requirements
in a notice entitled ``State Implementation Plans; Nitrogen Oxides
Supplement to the General Preamble; Clean Air Act Amendments of 1990
Implementation of Title I; Proposed Rule,'' (NOX Supplement)
which was published on November 25, 1992 (57 FR 55620). For detailed
information on the NOX requirements, refer to the
NOX Supplement and to additional NOX guidance
memoranda released subsequent to the NOX Supplement.
The EPA has defined RACT as the lowest emission limitation that a
particular source is capable of meeting by the application of control
technology that is reasonably available considering
[[Page 46210]]
technological and economic feasibility (44 FR 53762; September 17,
1979).
Section 182 of the Act provides requirements for marginal and above
nonattainment areas. Within ozone nonattainment areas classified
moderate or above and areas within an ozone transport region,
Sec. 182(f) requires that States apply the same requirements to major
stationary sources of NOX (``major'' as defined in Sec. 302
and Sec. 182(c), (d), and (e)) as are applied to major stationary
sources of volatile organic compounds (VOCs). For more information on
what constitutes a major source, see section 2 of the NOX
Supplement to the General Preamble.
Section 182(b)(2) of the Act requires submissions, by November 15,
1992, of SIP revisions which provide for implementation of RACT as
expeditiously as practicable but no later than May 31, 1995, where for
a source category EPA has issued a control technique document (CTG)
before November 15, 1990, or for all major stationary sources that the
Agency has not issued a CTG. For sources covered by a CTG between
November 15, 1990 and the date of attainment, Sec. 182(b)(2) requires
SIP revisions within the period set forth by the Administrator in
issuing the CTG document.
EPA did not issue any CTGs for major stationary sources of
NOX either before or after November 15, 1990. Therefore,
Sec. 182(b)(2) of the Act requires submission, by November 15, 1992, of
all SIP revisions which provide for implementation of RACT on major
stationary sources of NOX for all ozone nonattainment areas
classified moderate or above and for all ozone transport regions. New
Jersey, which is within the Northeast ozone transport region
established by Sec. 184(a) of the Act, should have submitted SIP
revisions, by November 15, 1992, which provided for implementation of
the NOX RACT revisions as expeditiously as practicable but
no later than May 31, 1995. Sections 182(f) and 184(b) of the Act
require the application of NOX RACT requirements Statewide.
II. State Submittal
On November 15, 1993, New Jersey submitted to EPA, as a revision to
the SIP, Subchapter 19 of Chapter 27, Title 7 of the New Jersey
Administrative Code. Subchapter 19 is entitled ``Control and
Prohibition of Air Pollution From Oxides of Nitrogen.'' This Subchapter
provides the NOX RACT requirements for New Jersey and is
effective on December 20, 1993. New Jersey held public hearings on
Subchapter 19 in March 1993 and adopted it on November 15, 1993. On
January 27, 1997, EPA published final approval of Subchapter 19 in the
Federal Register (62 FR 3804) and the rule became effective on February
26, 1997.
New Jersey held public hearings on the amendments to Subchapter 19
in September 1994 and the Commissioner signed and adopted these
amendments on March 24, 1995. On June 21, 1996, New Jersey submitted,
to EPA, as a revision to the SIP, the amendments to Subchapter 19. EPA
reviewed the submittal to determine completeness in accordance with
criteria set out at 40 CFR 51. In a letter to the Commissioner dated
September 26, 1996, EPA indicated it had found the submittal
administratively and technically complete.
The June 1996 submittal includes six new provisions and various
amendments to Subchapter 19. For a more detailed discussion of New
Jersey's submittal and EPA's proposed action on the submittal, refer to
the Technical Support Document developed as part of this proposed
action located at the previously mentioned addresses.
III. Analysis of New Jersey's SIP Submission
A. New Provisions
1. Fuel Switching
Section 19.20 of Subchapter 19 permits any combustion source to
attain compliance through seasonal combustion of natural gas or any
other fuel that is cleaner than the base year fuel. Section 19.20
replaces section 19.4(b) which allowed fuel switching only to certain
utility boilers whereas this new provision applies to all combustion
sources. The new fuel switching provision requires a combustion source
to meet specified emission limits each day during the ozone season, a
30-day rolling average during the non-ozone season, and an annual
NOX emission limit. The fuel switching limits are
enforceable through appropriate averaging times, test methods,
compliance schedules, and reporting and recordkeeping requirements.
2. Phased Compliance--Repowering
Section 19.21 of Subchapter 19 permits any combustion source to
attain compliance through repowering. Repowering is the permanent
ceasing of operations of the steam generator and either the
installation of a new combustion source or the purchase of heat or
power from the owner of a new combustion source that is located in New
Jersey. Section 19.21 requires a combustion source to submit an
analysis that defines RACT for the interim period between May 31, 1995
and the date the source will be repowered which will be no later than
May 1, 1999; and to submit the dates for completion of repowering
milestones. The source also must commit to meeting emission limits,
after the repowering is completed, which rely on advanced control
techniques. The maximum allowable NOX emission rate,
expressed in pounds per million BTUs (lb/MM BTU), for repowered utility
boilers ranges from 0.1 to 0.2 depending upon the type of boiler and
type of fuel.
Section 19.21 replaces Sec. 19.4(c) which allowed repowering only
to utility boilers whereas this new provision applies to all combustion
sources. New Jersey's repowering provision in Sec. 19.21 is consistent
with EPA's repowering guidance issued in March 1994. The phased
compliance repowering requirements are enforceable through appropriate
averaging times, test methods, compliance schedules, and reporting and
recordkeeping requirements.
3. Phased Compliance--Impracticality of Full Compliance by May 31, 1995
Section 19.22 permits a combustion source to implement RACT after
May 31, 1995 if it is impracticable to attain full compliance by that
date despite the best efforts of the owners/operators. Under this
circumstance, New Jersey allows an owner/operator to meet RACT
requirements by complying with a plan for phased compliance. In its
application to New Jersey for approval of a phased compliance plan, the
owner/operator must describe the efforts taken to bring the source into
full compliance by May 31, 1995 and must explain the circumstances that
make full compliance by that date impracticable. The compliance plan
must include a compliance schedule and the proposed NOX
control measure that the source will employ during the interim period
between May 31, 1995 and the date when the source will achieve full
compliance. Section 19.22 requires the interim period be less than
twelve months, i.e., by May 31, 1996.
Section 19.22 is consistent with EPA guidance for phased compliance
as published in the Federal Register (57 FR 55620, November 23, 1992)
and is enforceable through compliance schedules and the applicable
averaging time, test methods, and reporting and recordkeeping
requirements.
4. Phased compliance--Use of Innovative Control Technology
Section 19.23 allows a combustion source to attain compliance
through the use of innovative control technology. Section 19.23 applies
to all combustion
[[Page 46211]]
sources. Innovative control technology is a control measure which has a
substantial likelihood of achieving lower continuous levels of
NOX emissions as required under Subchapter 19, but which has
not been adequately demonstrated and is not available to be implemented
before May 31, 1995. In this situation, the combustion source is not
expected to attain full compliance with Subchapter 19 by May 31, 1995
but instead, New Jersey requires the source to achieve a greater
emission reduction at a later date. In its compliance plan application,
the owner/operator must submit a RACT analysis for determining
``interim RACT,'' a milestone schedule for implementing the innovative
control technology, and a demonstration that the innovative technology
to be implemented is technically sound and sufficiently developed to be
implemented by May 1, 1999.
New Jersey's innovative control technology provision in Sec. 19.23
is consistent with EPA's July 1994 guidance. The phased compliance
requirements through the use of innovative control technology are
enforceable through appropriate averaging times, test methods,
compliance schedules, and reporting and recordkeeping requirements.
5. Maximum Emergency Generation (MEG) Alerts
Section 19.24 provides that during a MEG alert which occurs on or
before November 15, 2005, an emergency generating unit operating at
emergency capacity is exempt from the NOX emission limits
applicable under Chapter 27 including Subchapter 19 and any limit set
forth in the unit's permit. Subchapter 19 defines MEG alert as a period
in which one or more electric generating units are operated at
emergency capacity at the direction of the load dispatcher, in order to
prevent or mitigate voltage reductions or interruptions in electrical
service or both. When an electrical generating unit is operating beyond
its normal maximum capacity during a MEG alert, its rate of
NOX emissions is likely to increase significantly. New
Jersey requires that the generating unit obtain offsetting
NOX emission reductions, at a ratio of 1.3 to 1.0, to
compensate for the excess NOX emissions. The affected source
is required to report the MEG alert to New Jersey along with the
determination of excess NOX emissions and compensation.
MEG alerts most typically occur during the summer ozone season when
high demand for electricity occurs due to high usage of air
conditioners and industrial cooling equipment. MEG alerts could also
occur during bitterly cold weather or as a result of a catastrophic
event or some major failure at a generating unit. New Jersey has
reported (26 New Jersey Register 3304, August 15, 1994) that one of the
major utilities in the State responded to alerts for a total of sixteen
hours during the ozone and non-ozone seasons of the three-year period
of 1990 to 1992.
EPA considers MEG alerts to have minimal impact on air quality
during these emergency situations when the security and safety of the
public could be at risk if an exemption were not granted. In addition,
New Jersey has limited the NOx exemption period for MEG alerts until
November 15, 2005 which is the primary standard attainment date for
ozone established under Sec. 181(a)1 of the Act for most of New Jersey.
Beyond November 15, 2005, the MEG alert exemption no longer applies and
affected sources must comply with the emission limits of Chapter 27
including Subchapter 19.
6. Exemption for Emergency Use of Fuel Oil
Section 19.25 permits an exemption to sources that combust natural
gas or refinery gas as its primary year-round fuel and to sources that
combust natural gas during the ozone season. The exemption allows the
use of fuel oil or other liquid fuels during the periods when natural
gas/refinery gas is unavailable. During this period the source is
exempt from the applicable emission limits of Subchapter 19. Section
19.25 establishes requirements for a source to be eligible for an
exemption including a 500 hour rolling annual limit on the use of fuel
oil/liquid fuel, recordkeeping and reporting requirements, and the
resumption to natural gas as soon as it becomes available in sufficient
supply. Future revisions to Subchapter 19 should include language to
Sec. 19.25(c) that clearly establishes that the exemption eligibility
criteria apply to sources that combust refinery gas as well as to those
combusting natural gas. Currently, Sec. 19.25 directly states that the
exemption eligibility criteria apply to sources that combust natural
gas but only infers that it applies to sources that combust refinery
gas.
Section 19.25 is enforceable through appropriate averaging times,
recordkeeping and reporting requirements. Furthermore, emergency
sources that operate with fuel oil more than 500 hours per consecutive
12 month period are subject to emission controls and/or enforcement
action in accordance with Subchapter 19. Finally, natural gas
curtailments historically occur in the winter months when ozone
formation is minimal and therefore an ozone exceedance is highly
improbable.
B. Amendments
1. Ozone Season
Sections 19.2 (Purpose, scope and applicability), 19.6 (Emissions
averaging), 19.7 (non-utility boilers and other indirect heat
exchangers), 19.15 (Procedures and deadlines for demonstrating
compliance), 19.19 (Recordkeeping and reporting) are amended to revise
the start of the ozone season from May 15 to May 1 whereas the
September 15 end date remains unchanged. This revision to the start of
the ozone season is in agreement with EPA's general requirement for
ozone monitoring (40 CFR Part 58, Appendix D, section 2.5).
2. Non-utility Boilers and Other Indirect Heat Exchangers
Section 19.7 is amended to include the source category ``other
indirect heat exchangers'' requiring the same RACT limitations as non-
utility boilers. New Jersey provides a definition and examples of
indirect heat exchangers to include boilers, duct burners and process
heaters. Section 19.7 requires a new emission limit of 0.20 lb/MM BTU
for tangential and face-fired affected units that combust refinery gas
and which have a maximum gross heat input of at least 50 MM BTU/hr.
New Jersey's emission limits are consistent with EPA's guidance.
The emission limits are enforceable through appropriate averaging
times, test methods, compliance schedules, and reporting and
recordkeeping requirements.
3. Exemption for Thermal Oxidizers
Section 19.13 is amended to include an exemption to owners/
operators of thermal oxidizers from the requirements to submit a
facility-specific NOX Control Plan that would establish RACT
for the source. New Jersey has reviewed NOX Control Plans
for these sources and has determined that there is no existing
NOX control technology that could appropriately be
considered RACT. Although EPA has not provided NOX RACT
guidance for thermal oxidizers, New Jersey has demonstrated that there
are no NOX control measures which represent RACT for these
sources. Therefore, EPA proposes approval of this amendment.
4. Other Amendments
The following include administrative and procedural provisions to
Subchapter 19 which were amended by New Jersey and reviewed by EPA:
definitions; purpose, scope and
[[Page 46212]]
applicability; general provisions; utility boilers; stationary gas
turbines; emissions averaging; non-utility boilers and other indirect
heat exchangers; stationary internal combustion turbines; asphalt
plants; glass manufacturing furnaces; facility-specific NOX
emission limits; procedures for obtaining approvals under this
subchapter; procedures and deadlines for demonstrating compliance;
recordkeeping and reporting; and penalties. EPA has evaluated the
amendments to these provisions in Subchapter 19 for consistency with
EPA policy and has determined that they meet the requirements.
Therefore, EPA proposes approval of these amendments.
IV. Summary
The EPA is proposing full approval of the new provisions and
amendments to Subchapter 19, ``Control and Prohibition of Air Pollution
From Oxides of Nitrogen.'' The new provisions and amendments to
Subchapter 19 were submitted by the State of New Jersey on June 21,
1996 for the marginal, moderate, and severe ozone nonattainment areas.
New Jersey has applied Subchapter 19 to the entire State, regardless of
the nonattainment status.
Administrative Requirements
Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
Executive Order 13045
The proposed rule is not subject to E.O. 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
E.O. 12866.
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to state, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a federal mandate that may result in estimated annual costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This federal action approves
pre-existing requirements under state or local law, and imposes no new
requirements. Accordingly, no additional annual costs to state, local,
or tribal governments, or to the private sector, result from this
action.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. section 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. section 804(2).
Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 30, 1998. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C 7401 et seq.
Dated: August 19, 1998.
Jeanne M. Fox,
Regional Administrator, Region 2.
[FR Doc. 98-23323 Filed 8-28-98; 8:45 am]
BILLING CODE 6560-50-P
