Approval and Promulgation of Implementation Plans; New Jersey; 8-Hour Ozone Control Measures

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a request by New Jersey to revise the State Implementation Plan (SIP) for ozone involving the control of volatile organic compounds (VOCs). The SIP revision consists of two new rules, Subchapter 26, “Prevention of Air Pollution From Adhesives, Sealants, Adhesive Primers and Sealant Primers,” and Subchapter 34, “TBAC Emissions Reporting,” (TBAC means tertiary butyl acetate or t-butyl acetate) and revisions to Subchapter 23, “Prevention of Air Pollution From Architectural Coatings,” Subchapter 24, “Prevention of Air Pollution From Consumer Products,” and Subchapter 25, “Control and Prohibition of Air Pollution by Vehicular Fuels,” of the New Jersey Administrative Code. The intended effect of this action is to approve control strategies that will result in VOC emission reductions that will help achieve attainment of the national ambient air quality standard for ozone.

DATES:

Effective Date: This rule is effective on January 21, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2010-0310. All documents in the docket are listed on the http://www.regulations.gov Web site. 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, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through 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. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 212-637-4249.

FOR FURTHER INFORMATION CONTACT:

Paul Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking?

II. What comments did EPA receive in response to its proposal?

III. What are EPA's conclusions?

IV. Statutory and Executive Order Reviews

I. What action is EPA taking?

On April 9, 2009, New Jersey submitted a proposed revision to the State Implementation Plan (SIP) that includes amendments to New Jersey Administrative Code, Title 7: Chapter 27 (NJAC 7:27)

—Subchapter 24, “Prevention of Air Pollution From Consumer Products,”

—Subchapter 26, “Prevention of Air Pollution From Adhesives, Sealants, Adhesive Primers and Sealant Primers,”

—Subchapter 34, “TBAC Emissions Reporting,” and

—Amending the definition of volatile organic compound (VOC) throughout NJAC 7:27.

The revisions to Subchapter 24 expand the number of consumer product categories that are regulated, and revised and improved the portable fuel container requirements. Subchapter 26 is a new rule that regulates adhesives, sealants, adhesive primers and sealant primers that are sold in larger containers and used primarily in commercial/industrial applications, but includes residential applications of these products, such as carpet and flooring installations and roofing installations. Subchapter 34 is a new rule that establishes reporting requirements for tertiary butyl acetate or t-butyl acetate (TBAC) emissions. The definition of VOC was revised throughout the New Jersey rules to exclude TBAC from VOC emissions limitations or VOC content requirements, but requires that TBAC be considered a VOC for purposes of recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements. These rules complete the commitment New Jersey made as part of its RACT analysis and 1997 8-hour national ambient air quality standard (NAAQS) ozone attainment demonstration that EPA conditionally approved.

For additional information, see the proposed rulemaking published on July 22, 2010 (75 FR 42672) or the Technical Support Document which is available on line at http://www.regulations.gov and entering the docket number EPA-R02-OAR-2010-0310.

II. What comments did EPA receive in response to its proposal?

EPA received comments from two individuals on the July 22, 2010 proposal. Comments supported the efforts that New Jersey and the EPA were making in improving the air quality and implementing new control strategies. One comment went further, recommending the need for measures that are necessary for good health and safe living.

The rules that EPA is approving fulfill New Jersey's commitment, made as part of the reasonably available control technology (RACT) analysis, and were used in the 8-hour ozone attainment demonstration to show that the SIP would attain the 8-hour ozone standard. These rule revisions and new rules became operative in the State on December 29, 2008 and have already started to produce VOC emission reductions.

Monitored air quality in New Jersey supports the progress New Jersey has made in reducing emissions and preliminary air quality data shows that the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area is in attainment of the 8-hour ozone standard. For the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area, quality assured air data for 2009 shows attainment, making the area eligible for a one year extension of the ozone attainment date. When EPA completes the reconsideration of the 2008 8-hour ozone standard, New Jersey like other States will need to reevaluate their SIP to determine if additional measures are necessary to meet the new standard.

EPA thanks the commenters for supporting this rulemaking. In this rulemaking EPA is only acting on the April 9, 2009 SIP revision request, which added the above rules to the SIP and was submitted to fulfill the commitments New Jersey made as part of the 1997 8-hour ozone attainment plan. When EPA completes the reconsideration of the 2008 8-hour ozone standard and depending on the monitored ozone air quality at that time, New Jersey may need to reevaluate its SIP to determine whether additional control measures are necessary to attain the reconsidered NAAQS for ozone. At this time New Jersey meets the Clean Air Act requirements for the ozone RACT SIP.

III. What are EPA's conclusions?

EPA has evaluated New Jersey's submittal for consistency with the Act, EPA regulations, and EPA policy. The new control measures will strengthen the SIP by providing additional VOC emission reductions that the State committed to achieve. Accordingly, EPA is approving the following rules as part of the SIP: Subchapter 23, “Prevention of Air Pollution From Architectural Coatings,” Subchapter 24, “Prevention of Air Pollution From Consumer Products,” Subchapter 25, “Control and Prohibition of Air Pollution by Vehicular Fuels,” Subchapter 26, “Prevention of Air Pollution From Adhesives, Sealants, Adhesive Primers and Sealant Primers,” and Subchapter 34, “TBAC Emissions Reporting,” of NJAC 7:27. These rules became operative on December 29, 2008. While the changes made to the VOC definition in the other rules included in this SIP revision are also acceptable, EPA will act on those rules in separate Federal Register actions at a later date. In addition, EPA finds that Subchapter 26 fully addresses the Control Techniques Guideline document for Miscellaneous Industrial Adhesives dated September 2008.

EPA is also fully approving New Jersey's RACT analysis as New Jersey has fulfilled its commitment to adopt the identified RACT rules, the last of which are being approved in this action. EPA will replace the conditionally approved RACT analysis in the SIP with a full approval (40 CFR 52.1582). These revisions meet the requirements of the Act and EPA's regulations, and are consistent with EPA's guidance and policy. EPA is taking this action pursuant to section 110 and part D of the Act and EPA's regulations.

Administrative Correction

On August 3, 2010, 75 FR 45483, EPA took final action approving a New Jersey SIP revision, which incorporated Subchapter 19, “Control and Prohibition of Air Pollution from Oxides of Nitrogen” along with two Administrative Corrections to Subchapter 19. 40 CFR 52.1570 and 52.1605 listed only the dates of the two administrative corrections, June 15, 2009 and July 6, 2009, but did not include the initial State effective date, April 20, 2009. This correction will be made to 40 CFR 52.1570 and 40 CFR 52.1605 by this action.

IV. 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 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 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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 22, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart FF—New Jersey

2. Section 52.1570 is amended by revising (c)(88)(i) and adding paragraph (c)(89) to read as follows:

3. Section 52.1582 is amended by revising paragraph (m)(6) to read as follows:

4. Section 52.1605 is amended by revising the table entries, under Title 7, Chapter 27: for Subchapters 19, 23, 24, 25, and adding new entries for Subchapters 26 and 34, in numerical order to read as follows: