Air Plan Approval; New Jersey; Interstate Transport Requirements for the 2010 1-Hour Sulfur Dioxide Standard

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this action?

II. Environmental Justice Considerations

III. What comments were received in response to the EPA's proposed action?

IV. What action is the EPA taking?

V. Statutory and Executive Order Reviews

I. What is the background for this action?

On October 17, 2014, the New Jersey Department of Environmental Protection (NJDEP) submitted a revision to its SIP to address requirements under section 110(a)(2) of the CAA (the infrastructure requirements) related to the 2008 Lead, 2008 Ozone, 2010 NO₂, 2010 SO₂, 2006 PM₁₀, 2011 CO, and 2012 PM_2.5 NAAQS.

On July 1, 2024, the EPA proposed to approve the portions of New Jersey's SIP submittal addressing interstate transport for the 2010 1-hour SO₂ NAAQS as meeting the requirements in section 110(a)(2)(D)(i)(I) of the CAA, often referred to as the “good neighbor” provision. See89 FR 54396.

The EPA had previously finalized actions on all applicable section 110(a)(2) elements of the October 17, 2014, submittal with the exception of 110(a)(2)(D)(i)(I) for the 2010 1-hour SO₂ NAAQS. Further information regarding those actions can be found in the Technical Support Document (TSD) for this action, which is included in the docket for this rulemaking. This rulemaking action is addressing the portions of New Jersey's infrastructure submittal for the 2010 1-hour SO₂ NAAQS that pertain to the “good neighbor” provision of the CAA.

In their SIP submission to the EPA, NJDEP discussed how they have addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) through their state-adopted rules and enforceable consent decrees, which control sources that impact air quality in neighboring States. NJDEP emphasized that their rules do not hinder other States' air quality standards, and their emissions regulations are stricter than Federal and nearby State rules. New Jersey highlighted its existing SIP-approved regulations and other federally enforceable control measures, including power plant consent decrees and low sulfur fuel requirements for distillate and residual fuels (N.J.A.C. 7:27-9) that have reduced SO₂ emissions that may be transported to other States.

The EPA undertook an independent evaluation of New Jersey's submission in a manner consistent with its evaluation of other States' SO₂ transport SIP submissions. This approach recognizes that SO₂ is a relatively more localized pollutant, and its transport is appropriately analyzed through focusing on impacts from point sources at the “urban scale.” See, e.g.,86 FR 31645, 31546 (June 15, 2021). For the reasons explained in the accompanying TSD in the docket, the EPA determined that New Jersey's SIP is adequate to prevent sources in New Jersey from significantly contributing to nonattainment or interfering with maintenance in another State with respect to the 2010 1-hour SO₂ NAAQS. This determination is based on a weight of evidence analysis that takes into account the following considerations: SO₂ emissions statewide have declined significantly from 2014 to 2022; the absence of nearby SO₂ nonattainment areas in neighboring States or uncharacterized air quality near New Jersey point sources; SO₂ ambient air quality data far below the SO₂ NAAQS and exhibiting downward trends or remaining stable; the EPA's impact assessment that shows that New Jersey sources within 50 kilometers of New Jersey's borders are unlikely to significantly contribute to nonattainment or interfere with maintenance in any nearby States based on emission trends, wind patterns, air monitoring, and modeling data; and New Jersey's existing control measures, which ensure that SO₂ emissions will continue to be effectively controlled for existing and new sources or modifications. A detailed summary of the EPA's review and rationale for the approval of this SIP revision as meeting CAA section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO₂ may be found in the TSD.

II. Environmental Justice Considerations

New Jersey provided a supplement to the SIP submission being approved with this rulemaking on May 16, 2023. The supplemental submission briefed the EPA on Environmental Justice (EJ) considerations within New Jersey by detailing the State's programs and initiatives addressing the needs of communities with EJ concerns that have been ongoing since 1998. For more information on New Jersey's EJ initiatives, the EPA refers the reader to the proposal published on July 1, 2024. See89 FR 54397. Although New Jersey considered EJ as part of its SIP submittal, the EPA has determined that conducting its own comprehensive EJ analysis is not necessary in the context of this SIP submission for interstate transport for the 2010 1-hour SO₂ NAAQS, as the CAA and its applicable implementing regulations neither prohibit nor require such an evaluation of EJ in relation to the relevant requirements. Additionally, there is no evidence suggesting that this action contradicts the goals of E.O. 12898 or that it will disproportionately harm any specific group or have severe health or environmental impacts.

The EPA expects that this action, which assesses whether New Jersey's SIP adequately addresses the interstate transport of air pollution that affects downwind States' ability to attain and maintain the 2010 1-hour SO₂ NAAQS, will generally have a neutral impact on all populations, including communities of color and low-income groups. At the very least, it will not worsen existing air quality standards.

In summary, the EPA concludes, for informational purposes only, that this rule will not disproportionately harm communities with environmental justice concerns. New Jersey did evaluate EJ considerations voluntarily in its SIP submission, but the EPA's assessment of these considerations is provided for context, not as the basis for the action. The EPA is taking action under the CAA independently of the State's EJ assessment.

III. What comments were received in response to the EPA's proposed action?

The EPA provided a 30-day review and comment period for the July 1, 2024, proposed rule. The comment period ended on July 31, 2024. We received no comments on the EPA's action.

IV. What action is the EPA taking?

The EPA is approving the portions of New Jersey's SIP submittal addressing interstate transport for the 2010 1-hour SO₂ NAAQS as meeting the requirements in section 110(a)(2)(D)(i)(I) of the CAA.

V. Statutory and Executive Order Reviews

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and it will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The NJDEP evaluated environmental justice as part of its SIP submittal even though the CAA and applicable implementing regulations neither prohibit nor require an evaluation. The EPA's evaluation of the NJDEP's environmental justice considerations is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. The EPA is taking action under the CAA on bases independent of New Jersey's evaluation of environmental justice. In addition, there is no information in the record upon which this decision is based that is inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 5, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

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

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

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

2. In § 52.1570, the table in paragraph (e) is amended by adding an entry for “NJ Infrastructure SIP for the 2010 Sulfur Dioxide NAAQS; Interstate Transport Provisions” at the end of the table to read as follows:

(e) * * *