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 Mee ting the Infrastructure Requirements

In the Clean Air Act Dated February 2008 and January 2010

201 32 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 Infrastructu re SIPs

I V

. What did New Jersey Submit?
V. What are the required elements under Section 110(a)(1) and (2)?

V I

. How do the New Jersey Infrastructure Submittal s Meet the Requirements under Section 110(a)(1) and (2) for the 1997 8

- hour ozone NAAQs, the 1 997 a nd 2006 PM2.5 NAAQS ?

A. Emission limits and o ther c ontrol measures
– Section 110(a)(2)(A) B. Ambient air quality monitoring, c ompilation, data analysis, and r eporting

– Section 110(a)(2)(B) C. Enforcement and s tationary s ource p ermitting

– Section 110(a)(2)(C) D. Interst ate t ransport

– Section 110(a)(2)(D) E. Adequate resources

- Section 110(a)(2)(E): F. Stationary s ource emissions monitoring and r eporting

– Section 110(a)(2)(F) G. Emergency p owers and c ontingency p lans

– Section 110(a)(2)(G) H. Future SIP revisions

- Section 110(a)(2)(H): I. State Implementation Plan r evisions for n ew n onattainment
a reas
– Section 110(a)(2)(I) J. Consultation and public n otification

– S ection 110(a)(2)(J) K. Air quality modeling and r eporting

– Section 110(a)(2)(K) L. Major s tationary source p ermitting f ees
– Section 110(a)(2)(L) M. Consultation with local e ntities

– 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 NAAQS s 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 part s 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/m 3 ) based on a 3

- year average of annual mean PM2.5 concentrations and a 24

- hour standard of 65 μg/m 3 bas ed on a 3

- year average of the 98 th percentile of 24

- hour concentrations.
The Clean Air Act (CAA) requires S tate Implementation Plans (SIPs) meeting the requirements of sections 110(a)(1) and (2) be submitted by states within 3 years after promulgation o f 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 state s did not provide the required "infrastructure" SIP submission for this newly promulgated standard.
Section 110(a) imposes the obligation upon state s 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, state s 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 61 144), effective December 18 , 2006 , EPA revised the 24

- hour average PM2.5 primary and secondary NAAQS from 65 μg/m 3 to 35 μg/m 3 . As required by section 110(a)(1) of the CAA, the 110(a)(2) submittals were due within three years after promulgation of the r evised 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 st ate s 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 Ho ur 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 sectio n 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 Secti on 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 submi ssions 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 transport5

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 C onsent D ecree with Earth Justice which requ ired EPA, among other things, to make a determination whether states have made the SIP submissions necessary for EPA to determin e whether each state has made complete submissions , pursuant to 110(k)(1)(A) to meet the requirements of section 110(a)(2) for t he 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 ozo ne NAAQS. (See 73 FR 16205.) On October 2 2 , 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 ha d 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 state s that did receive findings, the findings of failure to submit for all or a portion of a6

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 state s 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 es tablish 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 r equirements 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 Standar ds 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 E PA 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).

**I I**  **I. Scope of Infrastructure SIPs** 
EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for7

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 subs tantive 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 exces s 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 requ irements 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 r espect 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 ozon e 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 o f 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 a nd 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 infrastruc ture 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 deficien cies 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 issue s 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 infrastru cture 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 pr oposals, 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 submi ssions 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 qualit y 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 hi storically 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 spec ific 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 the se 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 t o 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 o thers 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 u nder 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 require10

Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the lis t 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 submi ssions 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 plan s. 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
re quirements 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 measure11

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 demons trates 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 requireme nts 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 inhere nt 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 a nd 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 mainten ance 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

am bient 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 “b rief 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 assis tance 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 infra structure 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
re ferred 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 20 09 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 estab lish 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 addresse d 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 t rue 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, mai ntenance, 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 t he requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for14

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 tailore d 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 mitiga te 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 co urse of addressing the issue in a subsequent action. 14

**I V** 

**. 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 t he 2006 PM 2.5 NAAQS s .

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 S ection 110 infrastructure submittal was submitted by the New Jersey Department of Environmental Protection (NJDEP) on February 2 5 , 200 8 and addressed the 1997 8

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

. On March 2 7 , 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 c ontingency plans portion of the section 110(a)(2)(G) concerning emergency powers and adequate contingency plans

.
The New Jersey February 200 8 section 110 submittal demonstrates how the S tate has a plan in place that meets the requirements of Section 110 for the 1997 8

- hour ozone and annual PM2.5 NAAQS s . This plan references the current New Jersey Air Quality SIP, the New Jersey Statu t es 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 S tate has the necessary infrastructure, resources , and general authority to implement the 1997 ozone and annual PM2.5 NAAQS s , except where specifically noted. It should be noted that the NJDEP has made numerous SIP revisions to meet requirements for th e previous 1

- hour ozone standard , the revised 1997 o zone 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 c a n 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 Amb ient 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**  **, 20 1**  **0 SIP**  **submission**

The New Jersey’s S ection 110 infrastructure submittal for the 2006 PM2.5 24

- hour standard was dated January 15, 2010 and received by EPA on January 20 , 2010 . T he submittal wa s de emed 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 addition al material o n 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 D ecember 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
r equirements 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 in clude 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 th e 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) : Sta tionary source monitoring and reporting

. 110(a)(2)(G) : Emergency power. 110(a)(2)(H) : Future SIP revisions. 110(a)(2)( I ) : N onatta inment 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) : C onsultatio n/participation by affected local entities.

**V I** 

**. How do the New Jersey Infrastructure Submittal**  **s Meet the**  **Requirements under Section 110(a)(1) and (2) for the 1997 8**

**- hour**  **ozone NAAQ S**  **, the 1997 and 2006 PM2.5 NAAQS?**

The NJDEP, Feb ruary 200 8 submittal, fo r 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 find ings 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 NAAQS s . The specific sections of 110 are listed below, followed by a summary of how the NJDEP submission s 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 cont rol 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 requiremen t 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 respe ctive 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 N ew 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 pollutant19

specific SIP re visions

. 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
o zone standa rd 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 enfor ceable 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. Howeve r, 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 sectio n 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 Poll ution 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 repo rt 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 2 8 , 201 3 and EPA approved New Jersey’s monitoring plan for all pollutants incl uding ozone and PM2.5 on March 2 9 , 201 1 and found no deficiencies. The State is monitoring ozone and PM2.5 at appropriate locations throughout the Stat e using EPA approved federal reference methods or equivalent monitors. The Monitoring Plan included pla nned 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. E** **nforcement and s**  **tationary s**  **ource p** **ermitting**
**- 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 P revention of S ignificant D eterioration (PSD) and nonattainment New So urce 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
a dditional enforcement related authorit ies , specifically at 2C

9.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 complianc e 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 pr evention 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 provi sions of the federal Clean Air Act to obtain an operating permit and to certify compliance therewith for all air pollution
sources .
NJSA 2C

- 1 9

. 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 i n 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 Jers ey SIP contains provisions that require NOx to be treated as a precursor f or 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 Off set 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

**N ew**  **S ource**  **R eview** 
The statutory and regulatory programs that regulate the
c onstruc tion 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 51.16 5 , 51.16 6 , and 52.21

. Part C of the Act requires tha t 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 thres hold 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 S ection 169(l) )

. For greenhouse gases, there i s 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 appl ies to stationary sources that are not require d 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 contr ol 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 s tates 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 NS R programs (71 FR 48696, 48700). The regulations for minor NSR are provided in 40 CFR 51.160 through 51.164.23

**P revention of**  **S ignificant**  **D eterioration** 
New Jersey has not promulgated regulations a s part of the SIP for Part C Prevention of Significant D eterioration (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 S ection 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 NAAQS s . New Jersey is implementing the PSD program t hrough 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

.

**No nattainment 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 approve d 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 determination24

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 Permi tting** 
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 S tate 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 sta te 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 interfer e with measures required to (3) prevent significant deterioration of air quality or to (4) protect visibility in another state (referred to as pro ngs 3 and 4)

. **Prongs 1 and 2** This action does not act on the requirements of 1 10(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 i t s Section 110 infrastructure submittal , submitted on January 20, 2010 for the 2006 PM2.5 NAAQS, New Jer sey 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 provi de protection for new or modified sources to prevent further degradation of attainme nt 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 H aze 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 unti l 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. E PA 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 P SD program as a SIP revision. In the meantime, EPA is disapproving the Infrastruc ture 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 i t s Regional Haze SIP submittal s , which were approved by EPA on January 3, 2012 , Federal Register (77 FR 19). The regional haze ru le specifically requires that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission26

reduction obligations agreed upon through that process. Thus, New Jersey’s approved regional haze SIP wi ll ensure that emissions from sources within the S tate 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 SI Ps to include provisions insuring compliance with the applicable requirements of sections 126 and 115 (relating to interst ate 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 communic ations 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 fi nding 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 t he pollution endangering public health or welfare in a foreign country. New Jersey has the au thority 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 obligati ons under Section 115 or 126(b) of the Act. However, New Jersey has chosen to rel y 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, theref ore, New Jersey’s program is considered technically deficient and not approvable. Although thi s program is considered deficient27

because the S tate 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 p roposing to disapprove New Jersey’s submissions for infrastructure element 1 10(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.”

S tate 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 Dep artment 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 authorit y under NJSA 26:2C

- 9.b.(6) to receive funds from federal, state and interst ate bodies for the study and control of air pollution. New Jersey receives sections 103 and 105 grant funds through28

their Performance Partnership Grants along with required state

matching funds to provide funding necessary to carry out its SIP requiremen ts. 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 12 8 which addre sses 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

. T he 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 wi th implementation of the SIP. New Jersey may delegate authority to a ny 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 delega te responsibilities to county or local governments to implement certain SIP responsibilities, the information provided in both infrastructure SIP submittals do es not identify organizations, by official title, which will participate in developing, implement ing, and enforcing the plan and the responsibilities of such organizations. The plan sh ould include any related agreements or memoranda of understanding (MOU) among the
o rganizations. EPA proposes to conditional approve the infrastructure SIP in fulfilli ng the requirements of section29

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**  **emis sions**  **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 Submit tal: 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 emissio ns 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 specifical ly 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 confide ntiality 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 th at30

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 t reatment (a dopted by the New Jerse y 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/ 20 04 and EPA’s latest approval occurred on 8/3/2 010, 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 52.157 5 and the federal requirements contained in 40 CFR 52.1574

.

Further , EPA maintains a central repository for air emissions data, t he National Emissions Inventory (NEI)

. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modi fied 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 t o 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 lat est 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/ei information.html

. EPA proposes to find that New Jersey has satisfied section 110(a)(2)(F) for ozone and PM2.5.31

**G. Emergency power** **s and contingency p lans** 
**- 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 Contr ol 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 pollu tion 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 cont ingency plans. The guidance recommends that states set priority levels and emergency action levels for PM2.5 necessary to develop emergency episode plans. State s would develop emergency episode plans for any area that has at least one monitored 24

- hour PM2.5 value exceeding 140.4 μ g/m 3 since 2006. A s tate 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 spe cific 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 i s sued a finding f or failure to submit in October 2008, may also be resolved (73 FR 62902)

.
The 2006

- 200 8 ambient air quality monitoring data for New Jersey do not exceed 140.4 μ g/m 3

. The 24

- hour PM2.5 levels have typically ranged from 40

- 59 μ g/m 3 with a maximum value 91. 0 μ g/m 3 . The most extreme recent event occurred during the 2002 Canadian forest fires and resulted in maximum 24

- hour PM2.5 concentration 106.7 μ g/m 3 ; well below the 140 cut point. Furthermore, New Jersey has appropriate general emergency powers to addre ss 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 standard s for as long as the monitored readings stay 140 μ g/m 3

.

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
emer gency 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 mak ing alerts, warnings or emergenc ies. 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 th at 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 in33

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 S I P 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 pollut ion 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 pl ans 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 n** **ew n** **onattainment**
**a reas**  **– Section 110(a)(2)(I)** 
Section 110(a)(2)(I) requires that each nonattainment area mee t the applicable requirements of Part D.

State Submittal : The N JDEP has in the past submitted S IP 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, N ov. 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 i t s two ozone nonattainment areas RACT Plan s , RFP Plan s and Attainment Demonstration s for the 199734

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 take n action on 8

- hr
ozone re quirements for Part D nonattainment plans through separate rulemaking s .

**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) requi res 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 con sultation

. State Submittal: The NJDEP provides the opportunity to ever yone in New Jersey to participate in the public comment period and public hearing for any rulemaking and S IP revision proposal, as described below in §110(a)(2)(M). Another avenue of consultation with the public and the regulated community is through work shops. In preparation for S IP revisions for 8

- hour ozone and fine particulate matter, the N JDEP consulted with representatives of civic, environmental, and industrial groups, as well as other interested parties through the ongoing Reducing Air Pollution T ogether 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 organiz ations, and affected states for the purpose of the Regional Haze State Implementation Plan. Also, the N JDEP consults with the Metropolitan Planning Organizations regularly to discuss transportation

- related air quality issues as required by the Transportat ion 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 26:2C

3.2 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 proc edures for consulting with government officials.

**J 2.**  **Public notification:**
Section 110(a)(2)(J) further requires s t ates 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.

Sta te Submittal: The N JDEP 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 N JDEP ’s website ( www.nj.gov/dep ). When an exceedance or unhea lthy air is forecasted, the information is sent out to participants of the N JDEP ’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 deteri o r ate and exceed the NAAQS. It maintains a web site which provides information on current air quality status, air quality forecasts, monitoring information, reports and pert i n e nt information related to air quality readings

. NJDEP participates with surroun ding 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 e xposure when necessary.

**J 3.**  **PSD and visibility protection:**36

Section 110(a)(2)(J) also require s s tates to meet applicable requirements of Part C related to preventi on of significant deterioration (PSD) and visibility protection.

State Submittal: The N JDEP 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 O zone National Ambient Air Quality Standard. The prevention of significant deterioration regulations only apply to attainment areas for a given pollutant. For visibility improvement, the N JDEP will include all the necessary requirements in the Regional Ha ze State Implementation Pla n .

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 requirement s through delegation of 40 CFR 52.21.
New Jersey is implementing the PSD program through the delegated federal PSD regulation s 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 fail ur e 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) (applicable37

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 impleme nt 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 indepen dently 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 s ection 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, 7 7 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 do cuments 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 Particu late Matter Attainment Demonstration/State Implementation Plan revision s .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 Certificat es 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 th e 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 2 6:2C

- 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 fo rmulate 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 submit ted 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 Data39

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 s**  **tationary s**  **ource p** **ermitting fees**
**– Section 110(a)(2)(L)** 
Section 110(a)(2)(L) requires SIPs to require each major stationary sou rce 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
cove r the cost of reviewing, approving, implementing and enforcing a permit.

EPA Evaluation: EPA originally g ranted 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 provide d 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 auth ority 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

S ection 110(a)(2)(M) requires s t ates 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 Environment al 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 publ ic 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 mail ing 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 finalizi ng the State Implementation Plan.

The NJDEP is in con stant communication with other st ate 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 a ir 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 regulations41

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.