1

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION II AIR PROGRAMS BRANCH

Technical Support Document 

for 

EPA’s Proposed Rulemaking

for the

New Jersey State Implementation Plan Revision:

State Implementation Plan Revision 

For Meeting the Infrastructure Requirements

In the Clean Air Act

Dated February 2008 and January 2010

2013
2

Table of Contents

I. What is the Background for this Action?

II. What is a Section 110(a)(1) and (2) SIP?

III. Scope of Infrastructure SIPs

IV. What did New Jersey Submit?

V. What are the required elements under Section 110(a)(1) and 

(2)?

VI. How do the New Jersey Infrastructure Submittals Meet the 

Requirements under Section 110(a)(1) and (2) for the 1997 

8-hour ozone NAAQs, the 1997 and 2006 PM2.5 NAAQS?

A. Emission limits and other control measures –Section 

110(a)(2)(A)

B. Ambient air quality monitoring, compilation, data analysis, 

and reporting – Section 110(a)(2)(B)

C. Enforcement and stationary source permitting – Section 

110(a)(2)(C)

D. Interstate transport – Section 110(a)(2)(D)

E. Adequate resources - Section 110(a)(2)(E): 

F. Stationary source emissions monitoring and reporting –

Section 110(a)(2)(F)

G. Emergency powers and contingency plans –Section 

110(a)(2)(G)

H. Future SIP revisions - Section 110(a)(2)(H): 

I. State Implementation Plan revisions for new nonattainment 

areas – Section 110(a)(2)(I)

J. Consultation and public notification – Section 110(a)(2)(J)

K. Air quality modeling and reporting – Section 110(a)(2)(K)

L. Major stationary source permitting fees –Section 

110(a)(2)(L)

M. Consultation with local entities – Section 110(a)(2)(M)
3

I. What is the Background for this Action?

On July 18, 1997, EPA promulgated a revised national ambient air 

quality standard (NAAQS) for ozone (62 FR 38856) and new NAAQSs

for fine particle matter (PM2.5)(62 FR 38652). The revised ozone 

NAAQS was based on 8-hour average concentrations. The 8-hour 

averaging period replaced the previous 1-hour averaging period, 

and the level of the NAAQS was changed from 0.12 parts per 

million (ppm) to 0.08 ppm. The new PM2.5 NAAQS was established on 

health-based annual standards for PM2.5 of 15.0 micrograms per 

cubic meter (μg/m3) based on a 3-year average of annual mean PM2.5 

concentrations and a 24-hour standard of 65 μg/m3 based on a 3-

year average of the 98th percentile of 24-hour concentrations. 

The Clean Air Act (CAA) requires State Implementation Plans 

(SIPs) meeting the requirements of sections 110(a)(1) and (2) be 

submitted by states within 3 years after promulgation of a new 

or revised standard. Sections 110(a)(1) and (2) require states 

to address basic SIP requirements, including emissions 

inventories, monitoring, and modeling to assure attainment and 

maintenance of the standards. States were required to submit 

such SIPs for the 1997 standards to EPA no later than June 2000.

However, intervening litigation over the 1997 8-hour ozone 

standards created uncertainty about how to proceed and certain 

states did not provide the required "infrastructure" SIP 

submission for this newly promulgated standard.

Section 110(a) imposes the obligation upon states to make a SIP

submission to EPA for a new or revised NAAQS, but the contents

of that submission may vary depending upon the facts and

circumstances. In particular, the data and analytical tools

available at the time the state develops and submits the SIP for

a new or revised NAAQS affects the content of the submission. 

The contents of such SIP submissions may also vary depending

upon what provisions the state's existing SIP already contains. 

In the case of the 1997 8-hour ozone NAAQS, states typically

have met the basic program elements required in section

110(a)(2) through earlier SIP submissions in connection with

previous ozone standards. 

On October 17, 2006 (71 FR 61144), effective December 18, 2006,

EPA revised the 24-hour average PM2.5 primary and secondary NAAQS 

from 65 μg/m3 to 35 μg/m3. As required by section 110(a)(1) of 

the CAA, the 110(a)(2) submittals were due within three years 

after promulgation of the revised standard.
4

II. What is a Section 110(a)(1) and (2) SIP?

Sections 110(a)(1) and (2) of the CAA require, in part, that 

states submit to EPA plans to implement, maintain and enforce 

each of the NAAQS promulgated by EPA. Sections 110(a)(1) and 

(2) require states to address basic SIP requirements including 

emission inventories, monitoring, and modeling to assure 

attainment and maintenance of the standards. By statute, SIPs 

meeting the requirements of Sections 110(a)(1) and (2) are to be 

submitted by states within three years after promulgation of a 

new or revised standard. These SIPs are commonly called

infrastructure SIPs. 

EPA issued a guidance document regarding infrastructure SIPs on 

October 2, 2007, entitled, "Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 

PM2.5 National Ambient Air Quality Standards." EPA also issued 

a September 25, 2009 guidance memo entitled "Guidance on SIP 

Elements Required Under Sections 110(a)(1) and (2) for the 2006 

24 Hour Fine Particle NAAQS", which clarified in further detail, 

certain elements to meet the requirements of sections 110(a)(1) 

and (2) of the CAA for both the 1997 and 2006 PM2.5 NAAQS. 

Specifically, EPA provided additional guidance for satisfying 

the section 110(a)(2)(D) requirements for the 2006 PM2.5 NAAQS, 

as well as guidance for satisfying the section 110(a)(2)(G) 

requirements for both the 1997 and 2006 PM2.5 NAAQS 

Both guidance documents noted that to the extent an existing SIP 

already meets the Section 110(a)(1) and (2) requirements, states 

need only to certify that fact to EPA. 

On March 4, 2004, Earth Justice submitted a notice of intent to 

sue related to EPA's failure to take action, i.e., issue finding 

of failure to submit, against states that had failed to make SIP 

submissions related to CAA Sections 110(a)(1) and (2), the 

"infrastructure" requirements.

On March 10, 2005, the EPA entered into a Consent Decree with 

Earth Justice that obligated the EPA to make official findings 

whether states had made required implementation plan submissions 

by dates certain. The Consent Decree obligated the EPA to 

determine whether states have made SIP submissions required to 

meet Section 110(a)(1) and (2) related to interstate transport 
5

by no later than March 15, 2005. The Consent Decree also 

obligates the EPA to make a determination whether states have 

made submissions necessary to meet the remaining requirements 

under Section 110(a)(1) and (2) by December 15, 2007, for the 8-

Hour Ozone National Ambient Air Quality Standard, and by October 

5, 2008, for the Fine Particulate Matter National Ambient Air 

Quality Standard. It should be noted that the latter 

determinations pertain only to whether the submissions are 

complete, pursuant to Section 110(k)(1)(A), and do not 

constitute EPA approval or disapproval of such submissions. In 

addition, the determinations required by the Consent Decree 

explicitly exclude any determinations regarding: (i) submissions

required by Section 110(a)(2)(C) to the extent that subsection

pertains to a nonattainment area new source review permit 

program in Part D Title I of the CAA; and (ii) submissions 

required by Section 110(a)(2)(I) for Part D Title I 

nonattainment plans. 

EPA entered into a Consent Decree with Earth Justice which 

required EPA, among other things, to make a determination 

whether states have made the SIP submissions necessary for EPA 

to determine whether each state has made complete submissions, 

pursuant to 110(k)(1)(A) to meet the requirements of section 

110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007.

Subsequently, EPA received an extension of the date to complete 

this Federal Register notice until March 17, 2008, based upon an 

agreement to make the findings with respect to submissions made 

by January 7, 2008. In accordance with the consent decree, EPA 

made completeness findings for each state based upon what the 

Agency received from each state as of January 7, 2008. 

On March 27, 2008, EPA published a final rulemaking entitled, 

"Completeness Findings for Section 110(a) State Implementation 

Plans; 8-hour Ozone NAAQS," making a finding that each state had 

submitted, or failed to submit, a complete SIP that provided the 

basic program elements of section 110(a)(2) necessary to 

implement the 1997 8-hour ozone NAAQS. (See 73 FR 16205.) On 

October 22, 2008, EPA published a final rulemaking entitled, 

"Completeness Findings for Section 110(a) State Implementation 

Plans Pertaining to the Fine Particulate Matter (PM2.5) NAAQS," 

making a finding that each state had submitted, or failed to 

submit, a complete SIP that provided the basic program elements 

of section 110(a)(2) necessary to implement the 1997 PM2.5 NAAQS. 

(See 73 FR 62902.) For those states that did receive findings, 

the findings of failure to submit for all or a portion of a 
6

state's SIP established a 24-month deadline for EPA to 

promulgate a Federal Implementation Plan (FIP) to address the

outstanding SIP elements unless, prior to that time, the

affected states submit, and EPA approves, the required SIPs. 

However, the findings of failure to submit did not impose

sanctions or set deadlines for imposing sanctions as described 

in section 179 of the CAA, because these findings do not pertain

to the elements contained in the Title I part D plan for 

nonattainment areas as required under section 110(a)(2)(I).

Additionally, the findings of failure to submit for the 

infrastructure submittals is not a SIP call pursuant to section 

110(k)(5). The findings that all or portions of a state's 

submission are complete establish a 12-month deadline for EPA to 

take action upon the complete SIP elements in accordance with 

section 110(k). 

This action does not address the requirements of 110(a) 

(2)(D)(i)(I)requirements for the 1997 ozone, 1997 PM2.5 NAAQS 

and 2006 PM2.5 NAAQS. Those requirements have been addressed by 

separate actions issued by EPA: See April 25, 2005 Federal 

Register (70 FR 21147) for EPA’s Finding of Failure to Submit 

Section 110 State Implementation Plans for Interstate Transport 

for the National Ambient Air Quality Standards for 8-Hour ozone 

and PM2.5. See October 1, 2007 Federal Register (72 FR 55666) 

for EPA’s approval of New Jersey’s Clean Air Interstate Rule. 

See July 20, 2011 Federal Register (76 FR 43153) for EPA’s 

disapproval of the New Jersey and New York Interstate Transport 

Plan Revision for the 2006 24-Hour PM2.5 NAAQS. On July 6, 

2011, the EPA Administrator signed the Cross-State Air Pollution 

Rule (CSAPR) to address 110(a)(2)(D)(i)(I) for these NAAQS. See 

CSAPR website at

http://www.epa.gov/airquality/transport/index.html. 

On August 21, 2012, the U.S. Circuit Court of Appeals for the 

District of Columbia issued a decision to vacate CSAPR. In that 

decision, it also ordered EPA to continue administering CAIR 

“pending the promulgation of a valid replacement.” EME Homer 

City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir., August 21, 

2012).

III. Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that address the 

infrastructure requirements of CAA section 110(a)(1) and (2) for 
7

ozone and PM2.5 NAAQS for various states across the country. 

Commenters on EPA’s recent proposals for some states raised 

concerns about EPA statements that it was not addressing certain 

substantive issues in the context of acting on those 

infrastructure SIP submissions.1 Those Commenters specifically 

raised concerns involving provisions in existing SIPs and with 

EPA’s statements in other proposals that it would address two 

issues separately and not as part of actions on the 

infrastructure SIP submissions: (i) existing provisions related 

to excess emissions during periods of start-up, shutdown, or 

malfunction at sources, that may be contrary to the CAA and 

EPA’s policies addressing such excess emissions (“SSM”); and 

(ii) existing provisions related to “director’s variance” or 

“director’s discretion” that purport to permit revisions to SIP 

approved emissions limits with limited public process or without 

requiring further approval by EPA, that may be contrary to the 

CAA (“director’s discretion”). EPA notes that there are two 

other substantive issues for which EPA likewise stated in other 

proposals that it would address the issues separately: (i) 

existing provisions for minor source new source review programs 

that may be inconsistent with the requirements of the CAA and 

EPA’s regulations that pertain to such programs (“minor source 

NSR[New Source Review]”); and (ii) existing provisions for PSD 

programs that may be inconsistent with current requirements of 

EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 

2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). 

In light of the comments, EPA believes that its statements in 

various proposed actions on infrastructure SIPs with respect to 

these four individual issues should be explained in greater 

depth. It is important to emphasize that EPA is taking the same 

position with respect to these four substantive issues in this 

action on the infrastructure SIPs for the 1997 8-hour ozone 

NAAQS from New Jersey.

EPA intended the statements in the other proposals concerning 

these four issues merely to be informational, and to provide 

general notice of the potential existence of provisions within 

the existing SIPs of some states that might require future 

corrective action. EPA did not want states, regulated entities, 

or members of the public to be under the misconception that the 

Agency’s approval of the infrastructure SIP submission of a 

 

1

See Comments of Midwest Environmental Defense Center, dated May 31, 2011. Docket # EPA-R05-OAR-2007-1179 

(adverse comments on proposals for three states in Region 5). EPA notes that these public comments on another proposal are not 

relevant to this rulemaking and do not have to be directly addressed in this rulemaking. EPA will respond to these comments in 

the appropriate rulemaking action to which they apply. 
8

given state should be interpreted as a re-approval of certain 

types of provisions that might exist buried in the larger 

existing SIP for such state. Thus, for example, EPA explicitly 

noted that the Agency believes that some states may have 

existing SIP approved SSM provisions that are contrary to the 

CAA and EPA policy, but that “in this rulemaking, EPA is not 

proposing to approve or disapprove any existing state provisions 

with regard to excess emissions during SSM of operations at 

facilities.” EPA further explained, for informational purposes, 

that “EPA plans to address such State regulations in the 

future.” EPA made similar statements, for similar reasons, with 

respect to the director’s discretion, minor source NSR, and NSR 

Reform issues. EPA’s objective was to make clear that approval 

of an infrastructure SIP for these ozone and PM2.5 NAAQS should 

not be construed as explicit or implicit re-approval of any 

existing provisions that relate to these four substantive 

issues. EPA is reiterating that position in this action on the 

infrastructure SIP for New Jersey.

Unfortunately, the Commenters and others evidently interpreted 

these statements to mean that EPA considered action upon the SSM 

provisions and the other three substantive issues to be integral 

parts of acting on an infrastructure SIP submission, and 

therefore that EPA was merely postponing taking final action on 

the issues in the context of the infrastructure SIPs. This was 

not EPA’s intention. To the contrary, EPA only meant to convey 

its awareness of the potential for certain types of deficiencies 

in existing SIPs, and to prevent any misunderstanding that it 

was reapproving any such existing provisions. EPA’s intention 

was to convey its position that the statute does not require 

that infrastructure SIPs address these specific substantive 

issues in existing SIPs and that these issues may be dealt with 

separately, outside the context of acting on the infrastructure 

SIP submission of a state. To be clear, EPA did not mean to 

imply that it was not taking a full final agency action on the 

infrastructure SIP submission with respect to any substantive 

issue that EPA considers to be a required part of acting on such 

submissions under section 110(k) or under section 110(c). Given 

the confusion evidently resulting from EPA’s statements in those 

other proposals, however, we want to explain more fully the 

Agency’s reasons for concluding that these four potential 

substantive issues in existing SIPs may be addressed separately 

from actions on infrastructure SIP submissions.
9

The requirement for the SIP submissions at issue arises out of 

CAA section 110(a)(1). That provision requires that states must 

make a SIP submission “within 3 years (or such shorter period as 

the Administrator may prescribe) after the promulgation of a 

national primary ambient air quality standard (or any revision 

thereof)” and that these SIPs are to provide for the 

“implementation, maintenance, and enforcement” of such NAAQS. 

Section 110(a)(2) includes a list of specific elements that 

“[e]ach such plan” submission must meet. EPA has historically 

referred to these particular submissions that states must make 

after the promulgation of a new or revised NAAQS as 

“infrastructure SIPs.” This specific term does not appear in 

the statute, but EPA uses the term to distinguish this 

particular type of SIP submission designed to address basic 

structural requirements of a SIP from other types of SIP 

submissions designed to address other different requirements, 

such as “nonattainment SIP” submissions required to address the 

nonattainment planning requirements of part D, “regional haze 

SIP” submissions required to address the visibility protection 

requirements of CAA section 169A, new source review permitting 

program submissions required to address the requirements of 

part D, and a host of other specific types of SIP submissions 

that address other specific matters.

Although section 110(a)(1) addresses the timing and general 

requirements for these infrastructure SIPs, and section 

110(a)(2) provides more details concerning the required 

contents of these infrastructure SIPs, EPA believes that many of 

the specific statutory provisions are facially ambiguous. In 

particular, the list of required elements provided in section 

110(a)(2) contains a wide variety of disparate provisions, some 

of which pertain to required legal authority, some of which 

pertain to required substantive provisions, and some of which 

pertain to requirements for both authority and substantive 

provisions.2 Some of the elements of section 110(a)(2) are 

relatively straightforward, but others clearly require 

interpretation by EPA through rulemaking, or recommendations 

through guidance, in order to give specific meaning for a 

particular NAAQS.3

 

2

 For example, section 110(a)(2)(E) provides that states must provide assurances that they have adequate legal authority under 

state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a substantive program to address 

certain sources as required by part C of the CAA; section 110(a)(2)(G) provides that states must have both legal authority to 

address emergencies and substantive contingency plans in the event of such an emergency.

3 For example, section 110(a)(2)(D)(i) requires EPA to be sure that each state’s SIP contains adequate provisions to prevent 

significant contribution to nonattainment of the NAAQS in other states. This provision contains numerous terms that require 
10

Notwithstanding that section 110(a)(2) provides that “each” SIP 

submission must meet the list of requirements therein, EPA has 

long noted that this literal reading of the statute is 

internally inconsistent, insofar as section 110(a)(2)(I) 

pertains to nonattainment SIP requirements that could not be met 

on the schedule provided for these SIP submissions in section 

110(a)(1).4 This illustrates that EPA must determine which 

provisions of section 110(a)(2) may be applicable for a given 

infrastructure SIP submission. Similarly, EPA has previously 

decided that it could take action on different parts of the 

larger, general “infrastructure SIP” for a given NAAQS without 

concurrent action on all subsections, such as section 

110(a)(2)(D)(i), because the Agency bifurcated the action on 

these latter “interstate transport” provisions within section 

110(a)(2) and worked with states to address each of the four 

prongs of section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on different tracks with 

different schedules.5 This illustrates that EPA may conclude 

that subdividing the applicable requirements of section 

110(a)(2) into separate SIP actions may sometimes be appropriate 

for a given NAAQS where a specific substantive action is 

necessitated, beyond a mere submission addressing basic 

structural aspects of the state’s implementation plans. 

Finally, EPA notes that not every element of section 110(a)(2) 

would be relevant, or as relevant, or relevant in the same way, 

for each new or revised NAAQS and the attendant infrastructure 

SIP submission for that NAAQS. For example, the monitoring 

requirements that might be necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be very different than what 

might be necessary for a different pollutant. Thus, the content 

of an infrastructure SIP submission to meet this element from a 

state might be very different for an entirely new NAAQS, versus 

a minor revision to an existing NAAQS.6

 

substantial rulemaking by EPA in order to determine such basic points as what constitutes significant contribution. See “Rule To 

Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162 (May 12, 2005) ( defining, among other things, the phrase “contribute 

significantly to nonattainment”).

 

4

 See Id., 70 FR 25162, at 63 – 65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) 

versus section 110(a)(2)(I)).

5

 EPA issued separate guidance to states with respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 

1997 PM2.5 NAAQS. See “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations 

Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,” from William T. 

Harnett, Director Air Quality Policy Division OAQPS, to Regional Air Division Director, Regions I-X, dated August 15, 2006.

6 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure 
11

Similarly, EPA notes that other types of SIP submissions 

required under the statute also must meet the requirements of 

section 110(a)(2), and this also demonstrates the need to 

identify the applicable elements for other SIP submissions. For 

example, nonattainment SIPs required by part D likewise have to 

meet the relevant subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, it is clear that 

nonattainment SIPs would not need to meet the portion of section 

110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 

applicable in attainment areas. Nonattainment SIPs required by 

part D also would not need to address the requirements of 

section 110(a)(2)(G) with respect to emergency episodes, as such 

requirements would not be limited to nonattainment areas. As 

this example illustrates, each type of SIP submission may 

implicate some subsections of section 110(a)(2) and not others. 

Given the potential for ambiguity of the statutory language of 

section 110(a)(1) and (2), EPA believes that it is appropriate 

for EPA to interpret that language in the context of acting on 

the infrastructure SIPs for a given NAAQS. Because of the 

inherent ambiguity of the list of requirements in section 

110(a)(2), EPA has adopted an approach in which it reviews 

infrastructure SIPs against this list of elements “as 

applicable.” In other words, EPA assumes that Congress could 

not have intended that each and every SIP submission, regardless 

of the purpose of the submission or the NAAQS in question, would 

meet each of the requirements, or meet each of them in the same 

way. EPA elected to use guidance to make recommendations for 

infrastructure SIPs for these ozone and PM2.5 NAAQS.

On October 2, 2007, EPA issued guidance making recommendations 

for the infrastructure SIP submissions for both the 1997 8-hour 

ozone NAAQS and the 1997 PM2.5 NAAQS.7 Within this guidance 

document, EPA described the duty of states to make these 

submissions to meet what the Agency characterized as the 

“infrastructure” elements for SIPs, which it further described 

as the “basic SIP requirements, including emissions inventories, 

monitoring, and modeling to assure attainment and maintenance of 

the standards.”8 As further identification of these basic 

structural SIP requirements, “attachment A” to the guidance 

document included a short description of the various elements of 

 

ambient levels of that new indicator species for the new NAAQS.

7 See “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National 

Ambient Air Quality Standards,” from William T. Harnett, Director Air Quality Policy Division, to Air Division Directors, 

Regions I – X, dated October 2, 2007 (the “2007 Guidance”). 

8

Id., at page 2.
12

section 110(a)(2) and additional information about the types of 

issues that EPA considered germane in the context of such 

infrastructure SIPs. EPA emphasized that the description of the 

basic requirements listed on attachment A was not intended “to 

constitute an interpretation of” the requirements, and was 

merely a “brief description of the required elements.”9 EPA also 

stated its belief that with one exception, these requirements 

were “relatively self explanatory, and past experience with SIPs 

for other NAAQS should enable States to meet these requirements 

with assistance from EPA Regions.”10 However, for the one 

exception to that general assumption (i.e., how states should 

proceed with respect to the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS), EPA gave much more specific 

recommendations. But for other infrastructure SIP submittals, 

and for certain elements of the submittals for the 1997 PM2.5 

NAAQS, EPA assumed that each State would work with its 

corresponding EPA regional office to refine the scope of a 

State’s submittal based on an assessment of how the requirements 

of section 110(a)(2) should reasonably apply to the basic 

structure of the State’s implementation plans for the NAAQS in 

question.

On September 25, 2009, EPA issued guidance to make 

recommendations to states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.11 In the 2009 Guidance, EPA 

addressed a number of additional issues that were not germane to 

the infrastructure SIPs for the 1997 8-hour ozone and 1997 PM2.5 

NAAQS, but were germane to these SIP submissions for the 2006 

PM2.5 NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) 

that EPA had bifurcated from the other infrastructure elements 

for those specific 1997 ozone and PM2.5 NAAQS). Significantly, 

neither the 2007 Guidance nor the 2009 Guidance explicitly 

referred to the SSM, director’s discretion, minor source NSR, or 

NSR Reform issues as among specific substantive issues EPA 

expected states to address in the context of the infrastructure 

SIPs, nor did EPA give any more specific recommendations with 

respect to how states might address such issues even if they 

 

9

 Id., at attachment A, page 1.

10 Id., at page 4. In retrospect, the concerns raised by commenters with respect to EPA’s approach to some substantive issues 

indicates that the statute is not so “self explanatory,” and indeed is sufficiently ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need to be addressed in the context of infrastructure SIPs and may be addressed at 

other times and by other means. 

11

 See “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 

National Ambient Air Quality Standards (NAAQS),” from William T, Harnett, Director Air Quality Policy Division, to Regional 

Air Division Directors, Regions I - X, dated September 25, 2009 (the “2009 Guidance”).
13

elected to do so. The SSM and director’s discretion issues 

implicate section 110(a)(2)(A), and the minor source NSR and NSR 

Reform issues implicate section 110(a)(2)(C). In the 2007 

Guidance and the 2009 Guidance, however, EPA did not indicate to 

states that it intended to interpret these provisions as 

requiring a substantive submission to address these specific 

issues in existing SIP provisions in the context of the 

infrastructure SIPs for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief that the states should make 

submissions in which they established that they have the basic 

SIP structure necessary to implement, maintain, and enforce the 

NAAQS. EPA believes that states can establish that they have 

the basic SIP structure, notwithstanding that there may be 

potential deficiencies within the existing SIP. Thus, EPA’s 

proposals for other states mentioned these issues not because 

the Agency considers them issues that must be addressed in the 

context of an infrastructure SIP as required by section 

110(a)(1) and (2), but rather because EPA wanted to be clear 

that it considers these potential existing SIP problems as 

separate from the pending infrastructure SIP actions. The same 

holds true for this action on the infrastructure SIPs for New 

Jersey.

EPA believes that this approach to the infrastructure SIP 

requirement is reasonable because it would not be feasible to 

read section 110(a)(1) and (2) to require a top to bottom, stem 

to stern, review of each and every provision of an existing SIP 

merely for purposes of assuring that the state in question has 

the basic structural elements for a functioning SIP for a new or 

revised NAAQS. Because SIPs have grown by accretion over the 

decades as statutory and regulatory requirements under the CAA 

have evolved, they may include some outmoded provisions and 

historical artifacts that, while not fully up to date, 

nevertheless may not pose a significant problem for the purposes 

of “implementation, maintenance, and enforcement” of a new or 

revised NAAQS when EPA considers the overall effectiveness of 

the SIP. To the contrary, EPA believes that a better approach 

is for EPA to determine which specific SIP elements from section 

110(a)(2) are applicable to an infrastructure SIP for a given 

NAAQS, and to focus attention on those elements that are most 

likely to need a specific SIP revision in light of the new or 

revised NAAQS. Thus, for example, EPA’s 2007 Guidance 

specifically directed states to focus on the requirements of 

section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the 

absence of underlying EPA regulations for emergency episodes for 
14

this NAAQS and an anticipated absence of relevant provisions in 

existing SIPs.

Finally, EPA believes that its approach is a reasonable reading 

of section 110(a)(1) and (2) because the statute provides other 

avenues and mechanisms to address specific substantive 

deficiencies in existing SIPs. These other statutory tools 

allow the Agency to take appropriate tailored action, depending 

upon the nature and severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever 

the Agency determines that a state’s SIP is substantially 

inadequate to attain or maintain the NAAQS, to mitigate 

interstate transport, or otherwise to comply with the CAA.12 

Section 110(k)(6) authorizes EPA to correct errors in past 

actions, such as past approvals of SIP submissions.13 

Significantly, EPA’s determination that an action on the 

infrastructure SIP is not the appropriate time and place to 

address all potential existing SIP problems does not preclude 

the Agency’s subsequent reliance on provisions in section 

110(a)(2) as part of the basis for action at a later time. For 

example, although it may not be appropriate to require a state 

to eliminate all existing inappropriate director’s discretion 

provisions in the course of acting on the infrastructure SIP, 

EPA believes that section 110(a)(2)(A) may be among the 

statutory bases that the Agency cites in the course of 

addressing the issue in a subsequent action.14 

IV. What did New Jersey Submit?

EPA is acting on two SIP submittals which address the Section 

110 infrastructure requirements for three NAAQSs: the 1997 8-

hour ozone NAAQS, the 1997 and the 2006 PM 2.5 NAAQSs. 

 

12

 EPA has recently issued a SIP call to rectify a specific SIP deficiency related to the SSM issue. See, “Finding of Substantial 

Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision,” 74 FR 21639 (April 18, 2011).

13 EPA has recently utilized this authority to correct errors in past actions on SIP submissions related to PSD programs. See

“Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA

110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See 61 FR 38664 (July 

25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona 

and Nevada SIPs).

14 EPA has recently disapproved a SIP submission from Colorado on the grounds that it would have included a director’s 

discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 

2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such 

provisions). 
15

EPA is also acting on the infrastructure elements that were 

satisfied with the approval of the New Jersey Regional Haze SIP.

February 25, 2008 SIP submission 

The New Jersey’s Section 110 infrastructure submittal was 

submitted by the New Jersey Department of Environmental 

Protection (NJDEP) on February 25, 2008 and addressed the 1997 

8-hour ozone and annual fine particulate matter (PM2.5) NAAQSs.

On March 27, 2008, 73 FR 16205, EPA made a finding of failure to 

submit as part of the 1997 8-hour ozone, the Part C PSD permit 

program required by 110(a)(2)(C). On October 22, 2008, 73 FR

62902, EPA made a finding of failure to submit as part of the 

1997 PM2.5 NAAQS, the Part C PSD permit program required by 

110(a)(2)(C) and (J) and the contingency plans portion of the 

section 110(a)(2)(G) concerning emergency powers and adequate 

contingency plans.

The New Jersey February 2008 section 110 submittal demonstrates 

how the State has a plan in place that meets the requirements of 

Section 110 for the 1997 8-hour ozone and annual PM2.5 NAAQSs. 

This plan references the current New Jersey Air Quality SIP, the 

New Jersey Statutes Annotated (NJSA) and/or the New Jersey 

Administrative Code (NJAC). A public hearing was held on 

January 28, 2008 for New Jersey's 110 infrastructure submittal

and written comments were accepted until January 31, 2008. All 

of the New Jersey General Statutes (NJSA) and New Jersey

Administrative Code (NJAC)(air pollution control regulations)

provisions referenced in the submittal are publicly available.

All the NJDEP regulations included in the New Jersey SIP that 

are referenced in the submittal were subject to public notice 

and hearing when adopted. As explained below, the State has the 

necessary infrastructure, resources, and general authority to

implement the 1997 ozone and annual PM2.5 NAAQSs, except where 

specifically noted. It should be noted that the NJDEP has made 

numerous SIP revisions to meet requirements for the previous 1-

hour ozone standard, the revised 1997 ozone NAAQS and the PM2.5 

NAAQS. Those New Jersey air pollution control regulations that 

are approved by EPA and incorporated into the New Jersey SIP can 

be found at 40 CFR 52.1605 and are posted on the Internet at:

http://www.epa.gov/region02/air/sip/nj_reg.htm.

Detailed information was included in the Attachments:
16

Attachment A - Guidance on SIP Elements Required Under Sections 

110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National 

Ambient Air Quality Standards;

Attachment B – New Jersey Department of Environmental Protection 

Transport SIP Letter;

Attachment C – Public Participation;

Attachment D – Notice of Availability; and

Attachment E – Documentation of the Notices That Appeared in the 

Newspapers and the New Jersey Register.

 

January 15, 2010 SIP submission

The New Jersey’s Section 110 infrastructure submittal for the

2006 PM2.5 24-hour standard was dated January 15, 2010 and 

received by EPA on January 20, 2010. The submittal was deemed

complete on July 15, 2010. It was based on a certification that 

New Jersey satisfies the infrastructure requirements of section 

110(a)(1) and(a)(2) through its existing infrastructure SIP 

submitted on February 25, 2008. It also provided additional 

material on its emergency action plan, PSD program and 

significant contribution by New Jersey. 

Detailed information was included in the Appendices:

Appendix A – Infrastructure Elements Not Including Sections 

110(a)(2)(C), (D), (G), or (J);

Appendix B – New Jersey Department of Environmental Protection 

Transport SIP Letter dated December 22, 2006;

Appendix C – USEPA Guidance on SIP Elements Required Under 

Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 

(PM2.5) National Ambient Air Quality Standards (NAAQS) dated 

September 25, 2009;

Appendix D – State Collaborative Documentation; and

Appendix E – New Jersey’s Significant Contribution Analysis to 

Meet Section 110(a)(2)(D)(i).

IV. What are the required elements under Section 110(a)(1) and 

(2)?

Section 110(a)(1) provides the procedural and timing

requirements for SIPs. Section 110(a)(2) lists specific

elements that states must meet for "infrastructure" SIP

requirements related to a newly established or revised NAAQS. 
17

These requirements include SIP infrastructure elements such as

modeling, monitoring, and emissions inventories that are

designed to assure attainment and maintenance of the NAAQS. The

requirements that are the subject of this action are listed

below, with their corresponding CAA subsection, and in EPA's

October 2, 2007, memorandum entitled "Guidance on SIP Elements

Required Under Section 110(a)(1) and (2) for the 1997 8-Hour

Ozone and PM2.5 National Ambient Air Quality Standards." Some 

of these requirements are not part of the infrastructure SIP, 

but due as part of the states nonattainment SIP, but are listed 

below for completeness.

110(a)(2)(A) : Emission limits and other control measures.

110(a)(2)(B) : Ambient air quality monitoring/data system.

110(a)(2)(C) : Program for enforcement of control measures.

110(a)(2)(D) : Interstate transport.

110(a)(2)(E) : Adequate resources.

110(a)(2)(F) : Stationary source monitoring and reporting.

110(a)(2)(G) : Emergency power.

110(a)(2)(H) : Future SIP revisions. 

110(a)(2)(I) : Nonattainment area plan and plan revisions under

part D

110(a)(2)(J) : Consultation with Government officials, public 

notification, PSD and visibility protection.

110(a)(2)(K) : Air quality modeling/data.

110(a)(2)(l) : Permitting Fees.

110(a)(2)(M) : Consultation/participation by affected local 

entities.

VI. How do the New Jersey Infrastructure Submittals Meet the 

Requirements under Section 110(a)(1) and (2) for the 1997 8-hour 

ozone NAAQS, the 1997 and 2006 PM2.5 NAAQS?

The NJDEP, February 2008 submittal, for the section 110(a)(2) 

infrastructure elements lists specific provisions of the NJSA, 

the NJAC and the New Jersey Air Pollution SIP and shows how the 

provisions of these laws and regulations meet the appropriate 

section 110 requirements as outlined in EPA's October 2, 2007 

guidance. The NJDEP, January 15, 2010 submittal, is a 

certification document which certifies compliance with section 

110(a)(1) and (2) through its February 2008 infrastructure SIP 

submittal and focuses on the sections that EPA made findings for 

in October 2008.
18

Unless specifically identified in a particular section, EPA’s 

evaluation will apply to ozone and both the annual and 24 hour 

PM2.5 NAAQSs.

The specific sections of 110 are listed below, followed by a 

summary of how the NJDEP submissions meet these requirements and 

EPA’s evaluation of the New Jersey submittals. The reader is 

referred to the NJDEP submissions, along with their attachments 

and appendices, and the New Jersey Statutes Annotated and New 

Jersey Administrative Code, for New Jersey’s complete 

explanation of how New Jersey satisfies the section 110 

requirements.

A. Emission limits and other control measures – Section 

110(a)(2)(A) 

Section 110(a)(2)(A) requires SIPs to include enforceable 

emission limits and other control measures, means or techniques, 

schedules for compliance and other related matters. EPA notes 

that the specific nonattainment area plan requirements of 

section 110(a)(2)(I) are subject to the timing requirement of 

section 172, not the timing requirement of section 110(a)(1), 

and also that SIPs to meet this section are not covered by the 

Consent Decree.

State Submittal:

New Jersey Department of Environmental Protection (NJDEP) is 

authorized by the State’s Air Pollution Control Act (New Jersey 

Statutes Annotated (NJSA)) Title 26:2C-8, 9, and 19 to establish 

emission limits. New Jersey indicates the actual emission 

limits required as part of the 8-hour ozone SIP are not required 

to be part of the 110(a) Infrastructure SIP, but are to be found 

in the respective pollutant specific SIP revisions.

EPA Evaluation:

EPA has reviewed the authority provided by NJSA 26:2C-8, 9, and 

19 and is satisfied that these provisions provide NJDEP with the 

ability to adopt and enforce regulations, control measures 

including emission limits and compliance schedules. While New 

Jersey has not provided the actual control measures and emission 

limits as part of the Infrastructure SIP, it has provided the 

control measures and emission limits as part of its pollutant 
19

specific SIP revisions.

EPA conditionally approved NJ’s 8-hour ozone RACT Plan on May 

15, 2009 (74 FR 22837). EPA proposed to approve the last 

control measures NJ committed to adopt as part of its RACT SIP 

on July 22, 2010 (75 FR 42672) and on December 22, 2010 (75 FR 

80340) EPA approved the individual rules and replaced the 

conditional approval of the RACT SIP with a full approval. All 

the control measures along with the emission limitations that 

New Jersey identified as necessary for attaining the 8-hour 

ozone standard have been adopted by the State, submitted as SIP 

revisions and approved as SIP revisions by EPA. The complete 

list of EPA approved New Jersey rules can be found at 40 CFR 

52.1605.

As part of the PM2.5 Infrastructure SIP, New Jersey identified 

its enforceable emission limits and control measures as 

contained in New Jersey Administrative Code (NJAC) 7:27. New 

Jersey submitted its 1997 PM2.5 SIP and EPA proposed approval on 

December 12, 2012 (77 FR 74421). The 2006 PM2.5 SIP is due 

December 2012. However, New Jersey is currently attaining both 

the annual and 24-hour PM2.5 standards and has proposed a 

maintenance and redesignation SIP revision. Based on a Clean 

Data Determination a 24-hour PM2.5 attainment plan is not 

required as long as the standard is attained. EPA proposes to 

find that New Jersey has satisfied the section 110(a)(2)(A) 

requirements for ozone and PM2.5.

B. Ambient air quality monitoring, compilation, data analysis

– Section 110 (a)(2)(B)

Section 110(a)(2)(B) requires SIPs to include provisions to 

provide for establishment and operation of ambient air quality 

monitors, collecting and analyzing ambient air quality data, and 

making these data available to EPA upon request. 

State Submittal:

NJDEP is authorized by the State’s Air Pollution Control Act, 

NJSA Title 26:2C-1, specifically 26:2C-9.a., to conduct ambient 

air quality monitoring and to report the results. New Jersey 

operates an extensive air quality monitoring network that 

collects air quality data that are compiled, analyzed, and 

reported on. This information is also made available on the 

NJDEP’s website.
20

EPA Evaluation:

EPA has reviewed the authority provided by NJSA 26:2C-9.a. and 

is satisfied that New Jersey has adequate authority to conduct a 

monitoring program and report the results that fulfills the 

requirements of section 110(a)(2)(B) for both the 8-hr ozone and 

the PM2.5 NAAQSs. New Jersey’s latest Monitoring Plan was 

submitted on January 28, 2013 and EPA approved New Jersey’s 

monitoring plan for all pollutants including ozone and PM2.5 on 

March 29, 2011 and found no deficiencies. The State is 

monitoring ozone and PM2.5 at appropriate locations throughout 

the State using EPA approved federal reference methods or 

equivalent monitors. The Monitoring Plan included planned 

changes to the monitoring sites. New Jersey has been submitting 

the air quality data to EPA’s Air Quality System (AQS) data base 

on a quarterly basis and makes this data, as well as various 

reports, available on its website http://www.njaqinow.net on a 

real time basis. EPA proposes to find that New Jersey has 

satisfied the section 110(a)(2)(B) requirements for both ozone 

and PM2.5 NAAQSs.

C. Enforcement and stationary source permitting - Section 

110(a)(2)(C)

Section 110(a)(2)(C) requires states to include a program 

providing for enforcement of all SIP measures and the regulation 

of construction of new or modified stationary sources to meet 

Prevention of Significant Deterioration (PSD) and nonattainment 

New Source Review requirements.

State Submittal:

The NJDEP’s enforcement of control measures and the air 

permitting program for stationary sources are governed by NJSA

26:2C-19 and the enforcement and permitting programs operate 

under regulations designated in New Jersey Administrative Code 

(NJAC) 7:27 and NJAC 7:27A.

EPA Evaluation:

EPA has reviewed the authority provided by NJSA 26:2C-19. EPA 

notes that, besides NJSA 26:2C-19, NJSA 2C-9.b. provides 

additional enforcement related authorities, specifically at 2C9.b(4), (5), and (8). 
21

NJSA 2C-9.b. (4) provides the NJDEP with authority to enter and 

inspect any building or place, except private residences, for 

the purpose of investigating an actual or suspected source of 

air pollution and ascertaining compliance or noncompliance with 

any codes, rules, or regulations.

NJSA 2C-9.b. (5) provides the NJDEP with the authority to 

receive or initiate complaints of air pollution, hold hearings 

in connection with air pollution, and institute legal 

proceedings for the prevention of air pollution and for the 

recovery of penalties.

NJSA 2C-9.b. (8) provides the NJDEP with the authority to issue, 

renew, reopen, and revise operating permits, and require any 

person who is required to obtain an operating permit under the 

provisions of the federal Clean Air Act to obtain an operating 

permit and to certify compliance therewith for all air pollution 

sources.

NJSA 2C-19. provides the NJDEP with the authority to 

- institute a civil action in a court for injunctive or 

any other appropriate relief to prohibit and prevent such 

violation or violations and the court may proceed in the action 

in a summary manner;

- collect civil administrative penalties;

- compromise and settle any claim for a penalty under this 

section in such amount in the discretion of the department as 

may appear appropriate and equitable under all of the 

circumstances;

- collect additional civil penalties for failure pay 

administrative penalties in full; and

- further defines violations and penalties.

The New Jersey SIP contains provisions that require NOx to be 

treated as a precursor for ozone such as, Subchapter 21 Emission 

Statements and Subchapter 18 Control and Prohibition of Air 

Pollution from New or Altered Sources Affecting Ambient Air 

Quality (Emission Offset Rules).

EPA is satisfied that New Jersey has adequate authority to 

conduct enforcement programs for both 8-hr ozone and PM2.5 as 

required by section 110 (a)(2)(C).
22

New Source Review

The statutory and regulatory programs that regulate the 

construction and modification of major stationary sources in

nonattainment and attainment/unclassifiable areas are termed New

Source Review (NSR) and are provided under parts C and D of the

Act, and 40 CFR 51.165, 51.166, and 52.21. Part C of the Act 

requires that each applicable implementation plan prevent 

significant deterioration of air quality (PSD). The PSD program 

regulates the construction of any new major stationary source or 

major modification at existing stationary sources located in 

areas meeting the NAAQS. Such areas are designated as

attainment/unclassifiable. In a nonattainment area, any

stationary pollutant source with the potential to emit above a 

threshold amount of any regulated NSR pollutant is considered a

major stationary source. This threshold is generally 100 tons 

per year (tpy) but can be less in some nonattainment areas for 

particular pollutants. In PSD areas the cutoff level may be

either 100 tpy or 250 tpy, depending upon the source (see 

Section 169(l)). For greenhouse gases, there is an additional 

requirement that a higher threshold of CO2e be exceeded. 75 FR 

31514, 31523 (June 3, 2010). New major sources or major 

modifications are required by the Act to obtain an air pollution 

permit before beginning construction. 

Minor NSR applies to stationary sources that are not required to 

have PSD or nonattainment NSR (NNSR) permits. The purpose of

minor NSR permits is to prevent the construction of sources that

would interfere with attainment or maintenance of a NAAQS or

violate the control strategy in nonattainment areas. Also, 

minor NSR permits sometimes contain permit conditions to limit 

the sources emissions to levels below applicability thresholds 

for PSD and NNSR. Section 110(a)(2)(C) creates “a general duty 

on states to include a program in their SIP that regulates the 

modification and construction of any stationary source as 

necessary to assure that the NAAQS are achieved” (70 FR 71612, 

71677). EPA provides states with a “broad degree of discretion” 

in implementing their minor NSR programs (71 FR 48696, 48700).

The regulations for minor NSR are provided in 40 CFR 51.160 

through 51.164.
23

Prevention of Significant Deterioration

New Jersey has not promulgated regulations as part of the SIP 

for Part C Prevention of Significant Deterioration (PSD) permit 

program and, as a result, federal regulations at 40 CFR 52.21 

are incorporated into the applicable implementation plan for New 

Jersey. New Jersey has been delegated authority to implement 40 

CFR 52.21. See 40 CFR 52.1603(b).

On March 27, 2008 (73 FR 16207), EPA made a finding that New 

Jersey had failed to submit a SIP addressing section 

110(a)(2)(C) (the Part C PSD permit program) for the 1997 8-hour 

ozone standard for section 110 (a)(2)(C). On 10/22/2008 (73 FR 

62902) EPA made a similar finding for the 1997 PM2.5 standard 

for Section 110 (a)(2)(C) and (J). New Jersey views that they 

have satisfied the requirement to have a PSD program by the fact 

that they implement the Federal rules which have been delegated 

to them. And that new NAAQSs are included in the referenced 

federal PSD rules that continue in place. EPA acknowledges that 

New Jersey is implementing a PSD program by using the Federal 

rules at 40 CFR 52.21. 

EPA interprets Section 110(a)(2)(C) and(J) as requiring each

state to promulgate its own PSD regulations. That is why EPA 

made a new finding of failure to submit to New Jersey for 

failing to submit its own rules addressing PSD for the new 8-

hour ozone and PM2.5 NAAQSs. New Jersey is implementing the PSD 

program through the delegated federal PSD regulations at 40 CFR 

52.21 until New Jersey submits, and EPA approves, a SIP 

revision. A new FIP is not necessary for this deficiency, since 

the existing FIP continues in place and it will not trigger any 

sanctions.

Nonattainment new source review program

New Jersey has a nonattainment area new source review program 

Subchapter 18, “Control and Prohibition of Air Pollution from 

New or Altered Sources Affecting Ambient Air Quality (Emission 

Offset Rules)” that is approved as part of the SIP (see 7/25/96,

61 FR 38591) and which New Jersey is implementing. New Jersey’s 

NSR program differs in some respects from EPA rules and 

guidance. New Jersey has submitted an equivalency determination 
24

and SIP revision, and EPA is in the process of reviewing the 

submittals. EPA is not taking any action to approve or 

disapprove any existing state rules with regard to NSR reform 

requirements. EPA will act on NNSR reform submittals through a 

separate rulemaking process.

Minor Source Permitting

New Jersey’s minor source permitting requirements are contained 

at NJAC 7:27 Subchapter 8, “Permits and Certificates for Minor 

Facilities (and Major Facilities without an Operating Permit)” 

and the latest action was approved at 62 FR 42414. The SIP

continues to require preconstruction permits for minor sources 

and minor modifications. EPA is not taking any action to approve 

or disapprove the existing State rule with regard to minor 

source permitting. 

D. Interstate transport –Section 110(a)(2)(D)

- Section 110(a)(2)(D)(i)

Section 110(a)(2)(D)(i) requires SIPs to address four separate 

elements. Section 110(a)(2)(D)(i)(I) provides that each state’s 

SIP must include provisions prohibiting any source or other type 

of emissions activity in one state from contributing 

significantly to (1) nonattainment, or (2) interfering with 

maintenance of the NAAQS in another state (referred to as prongs 

1 and 2). Section 110(a)(2)(D)(i)(II) provides that each 

state’s SIP must include provisions prohibiting any source or 

other type of emissions activity in one state emitting any 

pollutants in amounts which will interfere with measures 

required to (3) prevent significant deterioration of air quality 

or to (4) protect visibility in another state (referred to as 

prongs 3 and 4). 

Prongs 1 and 2

This action does not act on the requirements of 

110(a)(2)(D)(i)(I), prongs 1 and 2, for the 1997 8-hour ozone 

NAAQS and the 1997 PM2.5 NAAQS, because they were addressed by 

previous EPA actions. See 72 FR 55666, October 1, 2007. For 

2006 24-hour PM2.5, EPA disapproved New Jersey’s SIP for prongs 

1 and 2 on July 20, 2011, 76 FR 43153. 
25

Prong 3

 

State submittal:

In its Section 110 infrastructure submittal, submitted on 

January 20, 2010 for the 2006 PM2.5 NAAQS, New Jersey has 

certified that it has a PSD program in place, and has indicated

that their existing PSD and NSR programs and subsequent 

revisions provide and will continue to provide protection for 

new or modified sources to prevent further degradation of 

attainment and maintenance areas. New Jersey is addressing the 

requirement regarding interference with measures required to 

meet the implementation plan for any other state related to 

regional haze and visibility through its Regional Haze SIP, 

which was submitted to EPA on July 28, 2009.

EPA Evaluation:

New Jersey is implementing the PSD program through the delegated 

federal PSD regulations at 40 CFR 52.21. A state's

infrastructure SIP submittal cannot be considered for

approvability with respect to prong 3 until EPA has issued final

approval of that state's PSD SIP or, alternatively, has issued

final approval of a SIP that EPA has otherwise found adequate to

prohibit interference with other states' measures to prevent

significant deterioration of air quality. EPA will be able to 

propose to determine that the state has met its obligations for 

PSD pursuant to Section 110(a)(2)(D)(i)(II) after New Jersey 

submits, and EPA approves, a PSD program as a SIP revision. In 

the meantime, EPA is disapproving the Infrastructure SIP submit

for lack of a State adopted PSD rule to satisfy Section 

110(a)(2)(D)(i)(II) prong 3 for the 8-hr ozone and PM2.5 NAAQSs, 

it will not start a FIP because a PSD FIP is currently in place

and it will not trigger any sanctions. 

Prong 4

New Jersey has met its obligations pursuant to Section 

110(a)(2)(D)(i)(II) for visibility (prong 4) for all three 

NAAQSs through its Regional Haze SIP submittals, which were

approved by EPA on January 3, 2012, Federal Register (77 FR 19).

The regional haze rule specifically requires that a state 

participating in a regional planning process include all 

measures needed to achieve its apportionment of emission 
26

reduction obligations agreed upon through that process. Thus, 

New Jersey’s approved regional haze SIP will ensure that 

emissions from sources within the State are not interfering with 

measures to protect visibility in other states. Therefore, 

EPA proposes to find for 8-hr ozone and PM2.5 NAAQSs that NJDEP 

satisfies the Section 110(a)(2)(D)(i)II requirement for 

visibility.

- Section 110(a)(2)(D)(ii) Interstate and International 

transport provisions: 

Section 110(a)(2)(D)(ii) requires SIPs to include provisions 

insuring compliance with the applicable requirements of sections 

126 and 115 (relating to interstate and international pollution 

abatement). Specifically, section 126(a) requires new or 

modified major sources to notify neighboring states of potential 

impacts from the source.

State Submittal:

Section 126 of the Clean Air Act

New Jersey sends communications to all the surrounding states

regarding all Title V operating permit actions: Maryland, 

Pennsylvania, Delaware, New York, and Connecticut, in accordance

with NJAC 7:27-22.11(k).

Section 115 of the Clean Air Act

In the case that the USEPA makes a finding that a state’s plan 

is inadequate under Section 110(a)(2)(H)(ii) of the Clean Air 

Act in response to an international agency’s reports, surveys, 

or studies, Section 115(b) of the Clean Air Act requires the 

applicable state plan be revised to reduce the pollution

endangering public health or welfare in a foreign country. New

Jersey has the authority to revise its SIP under NJSA 26:2C-8.11 

and conduct any further research as needed under NJSA 26:2C-9.

EPA Evaluation:

New Jersey has no pending obligations under Section 115 or 

126(b) of the Act. However, New Jersey has chosen to rely on 

the federal PSD program requirements of 40 CFR 52.21(q), which 

provide for notification of affected state and local air 

agencies, to satisfy this requirement and, therefore, New 

Jersey’s program is considered technically deficient and not 

approvable. Although this program is considered deficient 
27

because the State has not "submitted" anything to EPA, EPA is 

not required to take further action with respect to notification 

under this element, for the reason that the federal rules 

represent a FIP that fully addresses the notification issue. In 

addition, mandatory sanctions do not apply because the 

deficiencies are neither with respect to a submittal that is 

required under CAA title V, part D, nor in response to a SIP 

call under section 110(k)(5) of the CAA. Thus, New Jersey

remains obligated to adopt and submit a PSD program for EPA 

approval that applies to all regulated NSR pollutants. Until the 

state provides such a program, its infrastructure SIP is not 

approvable with respect to section 110(a)(2)(D)(ii). Therefore, 

we are proposing to disapprove New Jersey’s submissions for 

infrastructure element 110(a)(2)(D)(ii).

E. Adequate resources - Section 110(a)(2)(E): 

Section 110(a)(2)(E) requires: (i) states to provide for 

adequate personnel, funding, and legal authority under state law 

to carry out its SIP. (ii) that the state comply with the 

requirements section 128 respecting state boards and conflict of 

interest, and (iii) necessary assurances that, where the state 

has relied on a local or regional government, agency, or

instrumentality for the implementation of any plan provision, 

the state has responsibility for ensuring adequate 

implementation of such plan provision.”

State Submittal:

New Jersey’s statute under NJSA 13:1D-9 provides guidance on 

dedicating personnel and funds for the New Jersey Department of 

Environmental Protection to carry out the responsibilities under 

the State Implementation Plan. The New Jersey Department of 

Environmental Protection relies on the federal grant allocated 

under Section 103 and 105 of the Clean Air Act for carrying out 

the State Implementation Plan responsibilities, as well as an 

annual State appropriation. New Jersey does not rely on any 

boards to carry out its duties. New Jersey also references NJSA

26:2C-8, 26:2C-22, and 52:13D-12 et seq.

EPA Evaluation:

Besides the authority cited above, NJDEP has authority under 

NJSA 26:2C-9.b.(6) to receive funds from federal, state and 

interstate bodies for the study and control of air pollution. 

New Jersey receives sections 103 and 105 grant funds through 
28

their Performance Partnership Grants along with required statematching funds to provide funding necessary to carry out its SIP 

requirements. New Jersey and EPA develop an annual performance 

partnership agreement that identifies the programs and efforts 

that will be devoted in the forthcoming year to air pollution 

control. As discussed in section V.L. below, New Jersey has the 

authority to collect permit fees from stationary sources. EPA 

proposes to find that the State has adequate authority to 

fulfill the requirements of section 110(a)(2)(E)(i) for 8-hr 

ozone and PM2.5 NAAQSs.

Section 110(a)(2(e)(ii), requires compliance with section 128 

which addresses requirements to insure that boards or persons 

approving permits or enforcement orders do not have any 

conflicts of interest. New Jersey does not use state boards.

The State addresses the conflict of interest requirement with 

NJSA 52:13D-12 et seq. which restricts any State officer or 

employee from accepting anything of value to influence him or 

her in his performance of duty. EPA proposes to find that the 

State has adequate authority to fulfill the requirements of 

section 110(a)(2)(E)(ii) for 8-hr ozone and PM2.5 NAAQSs, but 

must submit NJSA 52:13D-12 et seq. as part of the SIP.

 

Section 110(a)(2(e)(iii) requires states to have the necessary 

assurances in place with local or regional governments that may 

be delegated tasks associated with implementation of the SIP. 

New Jersey may delegate authority to any of the 21 counties to 

enforce regulations associated with minor area sources under the 

County Environmental Health Act (NJSA 26:3A23-21 et seq.). If a 

county wishes to participate, a memorandum of agreement is 

prepared which identifies the efforts the county will perform.

EPA in the past identified a deficiency in meeting this 

requirement. See 40 CFR 52.1579 Intergovernmental cooperation.

While New Jersey has the authority to delegate responsibilities 

to county or local governments to implement certain SIP 

responsibilities, the information provided in both 

infrastructure SIP submittals does not identify organizations, 

by official title, which will participate in developing, 

implementing, and enforcing the plan and the responsibilities of 

such organizations. The plan should include any related

agreements or memoranda of understanding (MOU) among the

organizations. EPA proposes to conditional approve the 

infrastructure SIP in fulfilling the requirements of section 
29

110(a)(2)(E)(iii). The State must identify the county or local 

governments that participate in the SIP planning efforts, 

example MPOs, and identify the county or local governments that 

have been delegated responsibilities to implement or enforce 

portions of the SIP and provide examples of the agreements or 

MOUs.

Since the deficiency only involves providing information that 

exists but was not included, and based on EPA experience with 

working with NJDEP that there have been no issues associated 

with implementing or enforcing the SIP, should New Jersey 

provide this information before we take final rulemaking, EPA is 

also proposing to fully approve section 110(a)(2)(E)(iii) and 

remove 40 CFR 52.1579.

F. Stationary source emissions monitoring and reporting: 

Section 110(a)(2)(F)

Section 110(a)(2)(F) requires states to establish a system to: 

i) monitor emissions from stationary sources, ii) have sources 

prepare periodic emission reports, and iii) report emissions.

State Submittal:

The NJDEP has the authority pursuant to NJSA 26:2C-9.2 to 

require emissions monitoring of stationary sources before an 

operating permit is issued or renewed. NJDEP adopted regulations 

to implement the Federal requirements for stationary source 

emissions monitoring and reporting in NJAC 7:27-8 and 22.

EPA Evaluation:

The NJDEP has the authority pursuant to NJSA 26:2C-9.2 to 

require emissions testing from stationary sources. 

 

The NJDEP has the authority pursuant to NJSA 26:2C-9 and 

specifically NJSA 26:2C-9.b.(3) to require emission statement

reports from stationary sources. Further, NJSA 26:2C-9.b.(4) 

specifically requires emission information to be made available 

to the public. 

EPA previously made a finding concerning New Jersey’s 

confidentiality provisions, that in some circumstances, the New 

Jersey Air Pollution Control Act (NJAPCA) could prohibit the 

disclosure of emission data to the public and, therefore, EPA 

disapproved NJSA 26:2C-9. See 40 CFR 52.1575. Since that
30

disapproval, New Jersey revised NJAC 26:2C-9 to limit what 

information could be considered confidential and specifically 

added the phrase “other than actual or allowable air contaminant 

emissions” to exclude actual or allowable air contaminant 

emissions from confidential treatment(adopted by the New Jersey 

Legislature on August 2, 1995). NJAC 13:1D-9 12d. also limits 

confidentiality protections to those afforded by federal law. 

In the same legislation, NJDEP was given the authority to 

require individuals responsible for operations that emit air 

pollution to file emission statements. The NJDEP has adopted 

and EPA has approved NJAC 7:27, Subchapter 21 - “Emission 

Statements” as part of the applicable SIP. See 69 FR 46104, 

8/2/2004 and EPA’s latest approval occurred on 8/3/2010, 75 FR

45483.

Based on the revisions to the NJSA 26:2C-9 and the adoption of 

the Subchapter 21 – “Emission Statements,” EPA is proposing to 

find that New Jersey has met the requirements of section 110 

(a)(2)(F) and is proposing to revoke 40 CFR 52.1575 and the 

federal requirements contained in 40 CFR 52.1574.

Further, EPA maintains a central repository for air emissions 

data, the National Emissions Inventory (NEI). EPA published the 

Air Emissions Reporting Rule (AERR) on December 5, 2008, which

modified the requirements for collecting and reporting air 

emissions data (73 FR 76539). The AERR shortened the time 

states had to report emissions data from 17 to 12 months, giving 

states one calendar year to submit emissions data. All states 

are required to submit a comprehensive emissions inventory every 

three years and report emissions for certain larger sources 

annually through EPA’s online Emissions Inventory System (EIS). 

States report emissions data for the six criteria pollutants and 

the precursors that form them – nitrogen oxides, sulfur dioxide, 

ammonia, lead, carbon monoxide, particulate matter, and volatile 

organic compounds. Many states also voluntarily report

emissions of hazardous air pollutants, including New Jersey. 

New Jersey made its latest update to the NEI in June 2010. EPA 

compiles the emissions data, supplementing it where necessary, 

and releases it to the general public through the website 

http://www.epa.gov/ttn/chief/eiinformation.html. EPA proposes 

to find that New Jersey has satisfied section 110(a)(2)(F) for 

ozone and PM2.5.
31

G. Emergency powers and contingency plans - Section 110 

(a)(2)(G)

Section 110(a)(2)(G) requires states to provide for authority to 

address activities causing imminent and substantial endangerment 

to public health, including contingency plans to implement the 

emergency episode provisions in their SIPs. 

State Submittal:

This authority is provided in New Jersey’s Air Pollution 

Emergency Control Act (NJSA 26:2C-26 et seq.), which is 

implemented through NJAC 7:27-12.

EPA Evaluation:

The NJDEP has the authority pursuant to NJSA 26:2C-26 et seq. 

and implements the provisions through NJAC 7:27-12 Prevention 

and Control of Air Pollution Emergencies.

NJSA 26:2C-26 provides the authority to determine an air 

pollution emergency; provides the power to prohibit, restrict or 

condition the use of motor vehicles, incinerators, fuel burning 

equipment, and other activities that may contribute to the air 

pollution emergency; and provides for enforcement and 

penalties. New Jersey has emergency criteria levels for 

determining air pollution alert, air pollution warning, and air 

pollution emergency. The 2007 guidance stated that the SHL for 

the 1997 8-hour ozone NAAQS would remain unchanged as 0.60 ppm 

over a 2-hour average, as indicated in 40 CFR 51.151, and that 

the existing ozone related provisions of 40 CFR part 51, part H 

remained appropriate for purposes of implementing the 1997 8-

hour ozone standard.

EPA’s September 25, 2009 Infrastructure SIP Guidance for 2006 

PM2.5 NAAQS provides clarification that states that have air 

quality control regions identified as either priority I, 

Priority IA, or Priority II at 40 CFR 51.150 must develop 

emergency episode contingency plans. The guidance recommends 

that states set priority levels and emergency action levels for 

PM2.5 necessary to develop emergency episode plans. States 

would develop emergency episode plans for any area that has at

least one monitored 24-hour PM2.5 value exceeding 140.4 μg/m3

since 2006. A state that has never exceeded this level since 

2006 is considered to be priority III and in accordance with the 

guidance, may certify that it has appropriate general powers, 
32

and is not required to address specific emergency episode plans 

at this time, given the existing monitored levels. 

EPA also clarified that this guidance, under these conditions, 

the contingency plan portion of section 110(a)(2)(G) for the 

1997 PM2.5 NAAQS, for which we issued a finding for failure to 

submit in October 2008, may also be resolved (73 FR 62902).

The 2006-2008 ambient air quality monitoring data for New Jersey

do not exceed 140.4 μg/m3. The 24-hour PM2.5 levels have 

typically ranged from 40-59 μg/m3 with a maximum value 91.0 

μg/m3. The most extreme recent event occurred during the 2002 

Canadian forest fires and resulted in maximum 24-hour PM2.5 

concentration 106.7 μg/m3; well below the 140 cut point. 

Furthermore, New Jersey has appropriate general emergency powers 

to address PM2.5 related episodes to protect the environment and 

public health. Given the State's low monitored PM2.5 levels, EPA 

is proposing the State is not required to submit an emergency 

episode plan and contingency measures for the 1997 PM2.5 and 

2006 PM2.5 standards for as long as the monitored readings stay 

140μg/m3. 

Subchapter 12 is consistent with the requirements of 40 CFR 51 

Subpart H and Appendix L for contingency plans/standby plans. 

It also provides the Commissioner with the authority to set 

emergency criteria levels. 

While the New Jersey SIP contains Subchapter 12, it is not the 

current version of the State rule. In addition, Subchapter 12 

requires the NJDEP to publish in the New Jersey Register the 

emergency criteria that will be used in making alerts, warnings 

or emergencies. NJDEP has not provided this criteria. 

Therefore, EPA is proposing to condition its approval based on 

NJDEP submitting the current version of Subchapter 12 for 

approval into the SIP and the emergency criteria levels that 

will be used.

H. Future SIP revisions - Section 110(a)(2)(H) 

Section 110(a)(2)(H) requires states to have the authority to 

revise their SIPs in response to changes in the NAAQS, 

availability of improved methods for attaining NAAQS, or in 
33

response to an EPA finding that the SIP is substantially 

inadequate. 

State Submittal:

New Jersey’s statute under NJSA 13:1D-9 gives the NJDEP the 

authority to revise the SIP in response to changes in the 

NAAQSs, availability of improved methods for attaining the

NAAQSs, or in response to an EPA finding that the SIP is 

substantially inadequate.

EPA Evaluation:

The NJDEP has the authority pursuant to NJSA 13:1D-9 et seq. to

formulate comprehensive policies and programs to protect the 

environment and prevent pollution in New Jersey. In addition, 

7:27-13.2(c) specifically requires the State to adopt 

implementation plan or plan revisions as necessary to meet air 

quality standards. EPA proposes to find that the State has 

adequate authority to develop and implement plans and programs 

that fulfill the requirements of section 110(a)(2)(H) for 8-hr 

ozone and PM2.5 NAAQSs.

I. State Implementation Plan revisions for new nonattainment 

areas – Section 110(a)(2)(I)

Section 110(a)(2)(I) requires that each nonattainment area meet 

the applicable requirements of Part D.

State Submittal:

The NJDEP has in the past submitted SIP revisions for any change 

in the NAAQS, including the recommendations for nonattainment 

area designation. 

EPA Evaluation:

EPA has not addressed Section 110(a)(2)(I) in its recent 

infrastructure SIP guidance because Part D SIPs are due on a 

different schedule than the infrastructure SIP submittal 

schedule. (See, e.g., the infrastructure SIP guidance for the 

revised lead standard, 73 FR 66964, 67034, n. 113, Nov. 12, 

2008, and the infrastructure SIP guidance for the revised NO2 

standards, 75 FR 6474, 6523, n. 27, Feb. 9, 2010.) Therefore, 

this proposal does not address Section 110(a)(2)(I). 

New Jersey has submitted for its two ozone nonattainment areas 

RACT Plans, RFP Plans and Attainment Demonstrations for the 1997 
34

8-hour ozone standard. New Jersey has also submitted a PM2.5 

SIP revision which EPA is currently reviewing and will be taking 

rulemaking action on. EPA has already taken action on 8-hr 

ozone requirements for Part D nonattainment plans through 

separate rulemakings.

J. Consultation with government officials, public notification, 

PSD, and Visibility - Section 110(a)(2)(J):

J.1. Consultation with government officials:

Section 110(a)(2)(J) requires states to provide a process for 

consultation with local governments and Federal Land Managers 

carrying out NAAQS implementation requirements pursuant to 

section 121 relating to consultation. 

State Submittal:

The NJDEP provides the opportunity to everyone in New Jersey to 

participate in the public comment period and public hearing for 

any rulemaking and SIP revision proposal, as described below in 

§110(a)(2)(M). Another avenue of consultation with the public 

and the regulated community is through workshops. In 

preparation for SIP revisions for 8-hour ozone and fine 

particulate matter, the NJDEP consulted with representatives of 

civic, environmental, and industrial groups, as well as other 

interested parties through the ongoing Reducing Air Pollution 

Together Initiative that began with a workshop on June 29, 2005 

and the formation of the six air quality workgroups. The public 

has had an opportunity to provide feedback on the workshop and 

the white papers developed through this initiative which 

included various control options. The New Jersey Department of 

Environmental Protection has made these available on the website 

http://www.state.nj.us/dep/baqp/rapt/rapt.html

In addition, the NJDEP has already met with the federal land 

manager, regional organizations, and affected states for the 

purpose of the Regional Haze State Implementation Plan. Also, 

the NJDEP consults with the Metropolitan Planning Organizations 

regularly to discuss transportation-related air quality issues 

as required by the Transportation Conformity Rule. 

EPA evaluation:
35

N.J.A.S. 26:2C-8 provides the NJDEP with the power to formulate 

and promulgate codes, rules and regulations preventing, 

controlling and prohibiting air pollution provided that the 

public has an opportunity to comment during a public hearing. 

Further, New Jersey has created a Clean Air Council (NJSA 26:2C3.2 thru 26:2C-3.3) which includes members from various 

associations including the New Jersey State League of 

Municipalities and New Jersey Freeholder’s Association. The 

role of the Clean Air Council is to consider matters relating to 

air pollution and air pollution control programs, rules, 

regulations and studies and to advise the Commissioner. EPA 

proposes that New Jersey has adequate authority and procedures 

for consulting with government officials.

J2. Public notification: 

Section 110(a)(2)(J) further requires states to notify the 

public if NAAQS are exceeded in an area and to enhance public 

awareness of measures that can be taken to prevent exceedances.

State Submittal:

The NJDEP has a standard operating procedure by which 

notification of NAAQSs exceedance is sent to the press. 

Additionally, the notification of NAAQSs exceedance is posted on 

the NJDEP’s website (www.nj.gov/dep). When an exceedance or 

unhealthy air is forecasted, the information is sent out to 

participants of the NJDEP’s listserv, an e-mail service that is 

used to broadcast information.

EPA Evaluation:

The NJDEP has procedures in place to notify the public when air 

quality standards deteriorate and exceed the NAAQS. It 

maintains a web site which provides information on current air 

quality status, air quality forecasts, monitoring information, 

reports and pertinent information related to air quality

readings. NJDEP participates with surrounding states in 

submitting and compiling air quality data and making this 

information available to press, news outlets, state websites and

through the use of a listserv. EPA proposes that New Jersey has 

adequate procedures for notifying the public of air quality 

concerns and disseminating information on ways to avoid health 

problems and reduce exposure when necessary.

J3. PSD and visibility protection:
36

Section 110(a)(2)(J) also requires states to meet applicable 

requirements of Part C related to prevention of significant 

deterioration (PSD) and visibility protection. 

State Submittal:

The NJDEP was delegated the prevention of significant 

deterioration regulation at 40 CFR 52.21 by the EPA. 

Alternatively, such authority for establishing the requirements

for the prevention of significant deterioration can be found in 

NJSA 26:2C-8, 9, and 19. The prevention of significant 

deterioration does not currently apply to New Jersey for ozone 

because the entire State is designated as nonattainment for the 

8-Hour Ozone National Ambient Air Quality Standard. The 

prevention of significant deterioration regulations only apply 

to attainment areas for a given pollutant. For visibility 

improvement, the NJDEP will include all the necessary 

requirements in the Regional Haze State Implementation Plan.

EPA Evaluation:

With respect to the applicable requirements of Part C, relating

to prevention of significant deterioration (PSD) of air quality 

and visibility protection, we previously noted in the discussion 

of section 110(a)(2)(C) (relating to enforcement of control

measures) how the New Jersey applicable implementation plan

meets the PSD requirements through delegation of 40 CFR 52.21.

New Jersey is implementing the PSD program through the delegated 

federal PSD regulations at 40 CFR 52.21. A state's

infrastructure SIP submittal cannot be considered for

approvability with respect to section 110(a)(2)(J) until EPA has 

issued final approval of that state's PSD SIP. EPA is

disapproving the infrastructure SIP because of failure to 

contain a PSD rule to satisfy Section 110(a)(2)(J) for the 8-hr 

ozone and PM2.5 NAAQSs, it will not start a FIP because a PSD 

FIP is currently in place and it will not trigger any sanctions. 

With respect to the visibility component of section

110(a)(2)(J), we reiterate the statutory requirement providing, 

in relevant part, that each plan must meet the “applicable 

requirements” of part C (of Title I of the Act) relating to 

visibility protection. We note that the other part C 

requirements specified in section 110(a)(2)(J) (applicable 
37

requirements relating to prevention of significant deterioration 

of air quality) specifically relate to the 1997 and 2006 NAAQS, 

as well as to other pollutants regulated under the CAA, and a 

state must be able to implement those requirements with respect 

to a new or revised NAAQS when promulgated. In contrast to the 

PSD program, the visibility protection requirements are not 

directly related to the promulgation of, or revision to, these 

NAAQS. While the SIP must independently meet the visibility 

protection requirements of part C by virtue of the specific SIP 

requirements in sections 169A and 169B of the Act, EPA believes 

that the visibility protection requirements are not “applicable 

requirements” within the meaning of section 110(a)(2)(J) and 

that the SIP is not required to be revised with respect to 

visibility protection merely due to promulgation of, or revision 

to, these NAAQS. Regardless, NJDEP submitted and EPA has 

approved its Regional Haze SIP (January 3, 2012, 77 FR 19) as 

part of the SIP.

K. Air quality modeling and reporting - Section 110(a)(2)(K)

Section 110(a)(2)(K) requires that SIPs provide for performing 

air quality modeling for predicting effects on air quality of 

emissions from any NAAQS pollutant and submission of such data 

to EPA upon request.

State Submittal:

The NJDEP’s air quality modeling work complied with United 

States Environmental Protection Agency’s final guidance (April 

2007) on the use of models in attainment demonstrations for the 

8-hour ozone standard and the NJDEP will use the United States 

Environmental Protection Agency final guidance for modeling fine 

particulate matter. This is a rapidly evolving field in which 

the NJDEP endeavors to use the latest methodology and 

techniques, and documents information that its staff uses when 

conducting modeling or when evaluating the performance of air 

quality models used for this purpose. The NJDEP consults and 

works with regional organizations that conduct the regional air 

quality modeling. The regional modeling for New Jersey was 

included in the October 2007 8-Hour Ozone Attainment 

Demonstration/State Implementation Plan revision. A similar 

regional modeling effort was included in the Regional Haze State 

Implementation Plan and the Fine Particulate Matter Attainment 

Demonstration/State Implementation Plan revisions.
38

NJAC 7:27-8.5 and 22.8 contain air quality modeling requirements 

for stationary sources for the NJDEP’s Air Permitting Program. 

EPA Evaluation:

NJAC 7:27-8 Permits and Certificates for Minor Facilities (and 

Major Facilities without an Operating Permit), specifically 8.5 

and 7:27-22 Operating Permits, specifically 22.8 provide NJDEP 

with authority to require sources to perform air quality 

simulation modeling to determine whether the potential to emit 

will cause:

A violation of any New Jersey Ambient Air Quality Standard 

(NJAAQS) or National Ambient Air Quality Standard (NAAQS); 

An exceedance of a Prevention of Significant Deterioration 

(PSD) increment as defined in 40 CFR 52; 

An increase in the ambient air concentration that equals or 

exceeds the significant air quality effect level, as set forth 

in Table 1 of NJAC 7:27-18.4(a), in a nonattainment area for any 

air contaminant; or 

Air pollution as defined in P.L.1954 c.212 (NJSA 26:2C-1 et 

seq.). EPA finds that NJAC 7:27-8.5 and 22.8 provides adequate 

authority to require modeling for purposes of determining NAAQS 

compliance by stationary sources.

New Jersey has broad authority pursuant to NJSA 13:1D-9 

“The department shall formulate comprehensive policies for 

the conservation of the natural resources of the State, the 

promotion of environmental protection and the prevention of 

pollution of the environment of the State. The department 

shall in addition to the powers and duties vested in it by

this act or by any other law have the power to:

a. Conduct and supervise research programs for the 

purpose of determining the causes, effects and hazards to 

the environment and its ecology;” ...

NJDEP has submitted the 1997 8-hour ozone attainment 

demonstration supported by photochemical modeling. This 

regional modeling effort was performed by the Ozone Transport 

Commission (OTC) on behalf of the member states including New 

Jersey. NJDEP participated, as a member of the OTC, in the 

various workgroups and the oversight committee responsible for 

the regional modeling effort. NJDEP also submitted modeling for 

the PM2.5 annual standard which EPA is in the process of 

preparing a proposed rulemaking. New Jersey is attaining the 

PM2.5 24-hour standard and EPA has proposed a Clean Data 
39

Determination on August 30, 2012 (77 FR 52626). When this 

action is finalized, the requirement for an attainment 

demonstration for the 24-hour standard will be suspended for as 

long as the standard is being attained. EPA proposes to find 

that the State has adequate authority to develop and implement 

plans and programs that fulfill the requirements of section 

110(a)(2)(K) for 8-hr ozone and PM2.5 NAAQSs. 

L. Major stationary source permitting fees – Section 110(a)(2)(L)

Section 110(a)(2)(L) requires SIPs to require each major 

stationary source to pay permitting fees to cover the cost of 

reviewing, approving, implementing and enforcing a permit.

State Submittal:

Under NJAC 7:27-22.31 (Operating Permits Fees), major stationary 

sources are required to pay fees to the State to sufficiently 

cover the cost of reviewing, approving, implementing and 

enforcing a permit.

EPA Evaluation:

EPA originally granted interim approval of New Jersey’s 

Operating Permit Program (Subchapter 22) (effective June 17, 

1996), 61 FR 24715 (May 16, 1996). Effective November 30, 2001, 

EPA granted full approval to New Jersey's title V Operating 

Permit Program (66 FR 63168, December 5, 2001). EPA last 

approved revisions to New Jersey’s Subchapter 22 on July 26, 

2007, 72 FR 41025. The Operating Permits Rule fee schedules 

conform to the Omnibus Legislation adopted by the New Jersey 

State legislature in 2002, and ensures that requisite funding 

needs of the New Jersey Operating Permit Program are met.

New Jersey’s Title V Subchapter 22, Operating Permits regulation 

contains specific detailed provisions for assessing permit fees 

(contained in NJAC 7:27-22.31). The authority to require these 

fees in Subchapter 22 is provided by NJSA 26:2C-9.b.(7), NJSA

26:2C-9.5 and NJSA 26:2C-9.6. EPA finds that New Jersey has 

adequate authority to require fees for major sources to cover 

the cost of reviewing, approving, implementing and enforcing a 

permit program for ozone and PM2.5 NAAQSs.

M. Consultation with local entities - Section 110 (a)(2)(M) 
40

Section 110(a)(2)(M) requires states to provide for consultation 

and participation in SIP development by local political 

subdivisions affected by the SIP.

State Submittal:

New Jersey provides the opportunity for consultation and 

participation to local political subdivisions during the public

comment period of a proposed State Implementation Plan. New 

Jersey’s Air Pollution Control Act (NJSA 26:2C-8) and 

Administrative Procedure Act (NJSA 52:14B-1 et seq.) requires a 

public process for any rulemaking. The New Jersey Department of 

Environmental Protection offers the opportunity to everyone in 

the State to participate in the public process for any State 

Implementation Plan or rulemaking. This includes a public 

comment period and a public hearing. Notices for the commenting 

period and the public hearing are circulated in newspapers, 

public libraries, and the New Jersey Department of Environmental 

Protection’s Regional Enforcement Offices. The notices are also 

mailed through the United States Postal Service and through 

Listserv (electronic mailing system) to organizations and 

interested parties that have signed up for the mailing, which 

includes the League of Municipalities. All 566 municipalities 

in New Jersey are members of the League of Municipalities, a 

voluntary association created to help communities do a better 

job of self-government through pooling information resources and 

brain power. The New Jersey Department of Environmental 

Protection assures that all comments and testimonies are 

seriously considered in rulemaking and when finalizing the State 

Implementation Plan.

The NJDEP is in constant communication with other state agencies 

and planning boards, such as the New Jersey Department of 

Transportation, Department of Health and Senior Services, 

Department of Agriculture, the Delaware Valley Regional Planning 

Commission, the Northern New Jersey Transportation Planning 

Authority, and Southern New Jersey Transportation Planning 

Authority, on issues in the State Implementation Plan. The 

NJDEP also briefs the State’s Clean Air Council on air issues, 

including the State Implementation Plan. 

EPA Evaluation:

NJSA 26:2C-8 and NJSA 52:14B-1 et seq. authorize and require New 

Jersey to formulate and promulgate codes, rules, and regulations 
41

preventing, controlling and prohibiting air pollution provided 

that the interested parties are provided an opportunity to 

review and comment on the proposed codes, rules, and 

regulations. Also, as discussed in section V. J (above), the 

Clean Air Council which includes members from the New Jersey 

State League of Municipalities are to consider, make 

recommendations and advise the Commissioner on air pollution 

control programs. EPA proposes to find that New Jersey has 

satisfied section 110(a)(2)(M) for ozone and PM2.5 NAAQSs.