AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving the source-specific revisions to the New Jersey State Implementation Plan (SIP) for 8-hour ozone for Paulsboro Refining, Buckeye Port Reading Terminal, Buckeye Pennsauken Terminal, and Phillips 66 Company's Linden facility. The current source-specific SIP revision addresses the Reasonably Available Control Technology for volatile organic compounds (VOC) for external floating roof tanks. The intended effect of this revision is to address the Federal and state regulatory obligations for external floating roof tanks that store VOC with vapor pressure three (3) or more pounds per square inch absolute to be equipped with a domed roof.

DATES:

This final rule is effective on November 12, 2019.

ADDRESSES:

The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2018-0621. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Linda Longo, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3565, or by email at longo.linda@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. The EPA's Evaluation of New Jersey's Submittals

III. Comments Received in Response to EPA's Proposed Action

IV. Summary of EPA Final Action

V. Incorporation by Reference

VI. Statutory and Executive Order Reviews

I. Background

The EPA is approving the revision to the New Jersey SIP for attainment and maintenance of the 8-hour ozone National Ambient Air Quality Standards (NAAQS) for the following major VOC facilities: Paulsboro Refining, Buckeye Port Reading Terminal, Buckeye Pennsauken Terminal, and Phillips 66 Company's Linden facility. Specifically, under New Jersey Administrative Code (NJAC), Title 7, Chapter 27, Subchapter 16 (“Control and Prohibition of Air Pollution by Volatile Organic Compounds”), Section 2 (“VOC Stationary Storage Tanks”), all external floating roof tanks (EFRT) in Range III with vapor pressure three (3) or more pounds per square inch absolute (psia) and that were in existence on May 18, 2009 must be equipped with a domed roof the first time the tank is degassed after May 19, 2009, and by no later than May 1, 2020. See NJAC 7:27-16.2(l)(4). However, NJAC 7:27-16.17(a-q) sets forth procedures and standards for establishing alternative and facility-specific VOC control requirements for situations in which, among other things, a facility can demonstrate that the control requirements pursuant to NJAC 7:27-16.2 are not economically or technologically feasible as applied to its operations. The EPA approved NJAC 7:27-16.17(a-q) into the New Jersey SIP in 2010 (See 75 FR 45483 (August 3, 2010)) and is utilizing its functions in this current action.

As was discussed in EPA's October 29, 2018 (83 FR 54300) proposal, the EPA reviewed the four facilities' alternative VOC control plans and Reasonably Available Control Technology (RACT) analyses submitted with New Jersey's SIP revision. The New Jersey Department of Environmental Protection (NJDEP) concluded and the RACT analyses concluded that: (1) Installing domes on 25 out of the 51 EFRT currently lacking them in accordance with the proposed schedule which identifies the doming dates for some tanks beyond the 2020 compliance date as authorized under NJAC 7:27-16.17, is economically and technologically feasible and therefore RACT and (2) doming the remaining 26 EFRT currently without domes is not economically and technologically feasible and therefore not RACT. A full summary, including RACT requirements, is included in the technical support document (TSD) that is contained in the EPA's docket assigned to this Federal Register document.

II. The EPA's Evaluation of New Jersey's Submittals

The four facilities' source-specific SIP revisions found that the doming of the total inventory of EFRT was not RACT, but the doming of 25 out of 51 EFRT on a delayed proposed schedule was technologically and economically feasible pursuant to the New Jersey SIP and found that doming the remaining 26 was not economically feasible. The EPA has determined that the economic analyses regarding doming identified in the source-specific SIP revisions are consistent with the NJDEP's VOC RACT regulation and the EPA's rules and guidance. A detailed discussion of the doming requirements, schedules and EPA's evaluation can be found in the October 29, 2018 proposal and will not be restated here. See 83 FR 54300 (October 29, 2018).

III. Comments Received in Response to EPA's Proposed Action

In response to EPA's October 29, 2018 proposed approval of the source-specific revisions to the New Jersey State Implementation Plan (SIP) for 8-hour ozone for Paulsboro Refining, Buckeye Port Reading Terminal, Buckeye Pennsauken Terminal, and Phillips 66 Company's Linden facility, the EPA received public comments from five Commenters during the 30-day public comment period. After reviewing the comments, the EPA has determined that two Commenters provided feedback that is outside the scope of our proposed action or fails to identify any material issue necessitating a response. The comments do not raise issues relevant to the EPA's proposed action, therefore, the EPA will not provide a specific response to these comments. The EPA did, however, receive comments from three Commenters that are relevant and significant to the EPA's proposed action, warranting a response from the EPA. The relevant comments are summarized below and followed by an EPA response. All comments submitted may be viewed under Docket ID Number EPA-R02-OAR-2018-0621 on the http://www.regulations.gov website.

Comment: According to the Paulsboro RACT analysis the cost estimate to dome all 21 of the facility's ERFTs is in the range of $19,000-149,000 per ton VOC reduced. The lower limit of $19,000 is within the State's definition of what is economically feasible. The EPA should reverse the NJDEP's decision to allow this facility not to dome eleven of its 21 EFRT, furthermore, the EFRT should be domed six months ahead of what is expected under the source-specific SIP revision.

Response: The EPA disagrees that the cost of doming Paulsboro's total inventory of 21 ERFT is economically feasible and that the timeline for completing the doming requirement should be six months sooner than in the source-specific SIP revision. EPA disagrees $19,000 is within New Jersey's range of economically feasible RACT control. The commenter did not provide any documentation to support the statement that the lower limit of $19,000 is within the State's definition of what is economically feasible. On the contrary, New Jersey's SIP revision specifically states the Paulsboro RACT analysis estimates the cost to dome all 21 of the facility's ERFTs is in the range of $19,000-149,000 per ton VOC reduced, and that this is not cost-effective for meeting RACT. Therefore, as authorized in the New Jersey SIP, the facility developed a cost-effective alternative plan to reduce VOC emissions (i.e., the alternative VOC control plan).

As for doming considered to be RACT, the EPA recognizes the doming provision in NJAC 7:27-16.2 is intended to cover situations in which doming an EFRT is RACT (that is, when implementation of the action is both economically and technologically feasible) and that facilities are allowed, under NJAC 7:27-16.17 to submit an alternative VOC control plan where implementation of the prescribed RACT is demonstrated by the facilities to be economically or technologically infeasible as applied to their specific operations. This alternative VOC control plan provision is intended to cover case-by-case circumstances for facilities to explore cost effective options for VOC emission reduction techniques. The EPA also takes notice of the fact that the facilities' calculated lower limit of $19,000 per ton VOC emission reduced, is well above what EPA has historically defined as economically feasible (i.e., $160-1300).^[1] Furthermore, contrary to the statement by the comment, the 2007 New Jersey RACT Plan (i.e., State RACT rules) approved by the EPA and discussed in the EPA's October 29, 2018 (83 FR 54300) proposal, do not include a specific dollar amount. Thus, the four facilities submitted an alternative VOC control plan and NJDEP has approved, pursuant to the New Jersey ozone SIP, which is the subject of this rulemaking.

Paulsboro, and the other facilities under this rulemaking, considered the Federal and state RACT requirements, determining that the cost of doming the total inventory of EFRT by the compliance deadline is beyond the range of what traditionally EPA and the State would consider RACT. The intent of the alternative VOC control plan, as authorized under NJAC 7:27-16.17, is to create an alternative to the requirement to dome the facility's total inventory of EFRT that are subject to the doming requirement under NJAC 7:27-16.2 (“doming requirement”), because the facility has demonstrated that doming the tanks by the compliance date is not economically feasible under the State's RACT Plan. Under the alternative VOC control plan, the facility will follow an alternative implementation schedule (“Alternative Implementation Schedule”) in complying with the doming requirement on the identified tanks, as authorized under NJAC 7:27-16.17(d)(2)(x). Under NJAC 7:27-16.2(p)(2)(ii), the facility can submit a facility-wide VOC control plan with an implementation schedule that, among other requirements, “shall be consistent with the facility's schedule for tank removal from service for normal inspection and maintenance.” The facility's Alternative Implementation Schedule, as set forth in its alternative VOC control plan, is based on the facility's 15-20-year maintenance schedule for removing tanks from service for inspection and maintenance; the Alternative Implementation Schedule will allow the facility to achieve compliance in a cost reasonable manner. See www.regulations.gov EPA-R02-OAR-2018-0621, Final TSD Paulsboro Buckeye Phillips. According to the facility's RACT analysis cost table, (see www.regulations.gov EPA-R02-OAR-2018-0621, Paulsboro SIP revision EFRT domes 12 10 2015, Enclosure 7, Attachment 1), doming the set of tanks that are designated for compliance by the 2020 compliance date is economically feasible for those tanks because the annualized costs of installation and maintenance of the domes are within the State's RACT Plan considering the facility's business model. By contrast, the annualized costs of installation and maintenance of the domes for tanks that are following the Alternative Implementation Schedule to comply after the default 2020 compliance date are beyond RACT because it is not economically feasible to dome them by compliance date. Doming these tanks would be too costly and unreasonable to dome tanks that are not out-of-service. According to the facility's RACT analysis cost table, generally, the group of tanks following the Alternative Implementation Schedule has higher total costs (i.e., maintenance, administrative, and annualized) than the tanks being domed by the default compliance date, a difference of approximately $119,000 more. The facility's costs for doming are based on the EPA Control Cost Manual (see https://www.epa.gov/​economic-and-cost-analysis-air-pollution-regulations/​cost-reports-and-guidance-air-pollution) using a 7% interest over a 20-year useful life for each dome. The proposed Alternative Implementation Schedule in the alternative VOC control plan allows for the facility to spread the cost of installing and maintaining the domes over a more reasonable timeline; this phased approach allows the facility to minimize interference with normal operation while achieving sufficient VOC emission reductions to support the State's Ozone NAAQS attainment goals.

With respect to the comment to require doming on the EFRT to be completed six months ahead of the proposed dates, EPA believes this is unwarranted. Installing the domes on a schedule earlier than what the facilities provided in their analyses is not economically feasible and therefore not RACT. Ideally, domes should be installed after the tank is completely empty and out of service with ideal environmental weather conditions, which makes timing important. The schedules outlined in the facilities' alternative VOC control plans allow them flexibility to schedule installation of the domes during ideal conditions and allow for continuation of normal operating procedures. New Jersey has exercised its authority under NJAC 7:27-16.17(d) and has considered the facilities' proposed schedule for completion as a criterion in determining that the alternative control plans are sufficient.

Comment: The EPA cannot approve the EFRT dome deadline extensions as they exceed the regulatory and statutory mandate that RACT must be implemented “as expeditiously as practicable but no later than 3 years.” Title 40 CFR 51.1112(a)(3) requires “The state shall provide for implementation of RACT as expeditiously as practicable but no later than January 1 of the 5th year after the effective date of designation for the 2008 ozone NAAQS.”

Response: The current action is approval of a source-specific SIP, not the overall State RACT SIP. Given that, the overall State 2008 RACT effective date is March 12, 2008, and the EPA approved the overall State's RACT SIP revision to address the 2008 8-hour ozone NAAQS on May 15, 2009, within the statutory 24-month deadline for implementing RACT 40 CFR 51.1112(a)(3) applies to the overall implementation of the State's RACT SIP. RACT compliance for a source-specific RACT determination submitted as a SIP revision, as we have in this rule making, is largely based on when the State submits and EPA acts on the SIP revision.

As stated in the previous response, installing the domes on a schedule earlier than what the facilities provided in their analyses is not economically feasible and therefore not RACT. Therefore, installation of the domes by 2017 for the 2008 Ozone NAAQS and earlier for the 1997 Ozone NAAQS, as the commenter suggests, would not be RACT because it is not economically feasible.

Comment: The EPA cannot approve this source-specific SIP revision because New Jersey failed to provide an anti-backsliding analysis as required under sections 110 and 172 of the CAA. As the Subchapter 16 is approved into the ozone SIP and requires all EFRT in Range III to be domed by no later than 2020, any exemption to this rule must consider anti-backsliding. Furthermore, New Jersey is part of both the New York non-attainment area and the ozone transport area where VOCs from tanks like these can impede area's ability to attain the ozone standard.

Response: The EPA recognizes the applicability of section 110(l) of the CAA for source-specific SIP revisions, but in this instance, EPA disagrees there is a cause for disapproval. Section 110(l) of the CAA prohibits the EPA from approving revisions to a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other requirement of the CAA. In a circumstance such as that presented here, where approval of the RACT alternative (i.e., the source-specific determination) would impact air quality in a nonattainment area that is required to have an attainment demonstration, any attainment demonstration for the area must account for the source-specific RACT, and may do so: (1) By showing that the attainment demonstration, in fact, accounts for the source-specific RACT alternative; or (2) where the attainment demonstration has not yet been approved, by showing (e.g., by presenting information to be included in a forthcoming attainment demonstration) that the attainment demonstration will be able to properly account for emissions attributable to the proposed RACT alternative. For example, the information could show that the forthcoming attainment demonstration will not rely on emission reductions for the source category as a whole, or that it will reduce the emissions decreases credited to the source category by the estimated amount of increases associated with source-specific RACT determinations.

The EPA has determined that this SIP revision does not interfere with any applicable New Jersey ozone plan concerning attainment and reasonable further progress of the NAAQS, or any applicable requirement of the CAA. The “applicable New Jersey ozone plan concerning attainment and reasonable further progress” for purposes of this SIP revision is New Jersey's attainment demonstration SIP for the 2008 ozone standard. Two of the four facilities addressed in this SIP revision are located in the northern portion of the State as part of the New York-Northern New Jersey-Long Island, NY-NJ-CT (also referred to as the New York Metropolitan Area or NYMA) moderate nonattainment area. The comment is correct that Subchapter 16 (NJAC 7:27-16.2) is approved into the New Jersey ozone SIP and the requirement for all EFRT in Range III to be domed by 2020 is part of the SIP. While projected emission controls in the New Jersey 2008 ozone attainment modeling ^[2] included ozone projections to 2017 for bulk petroleum storage degassing, cleaning, landing, and slotted guide poles, the emission controls for placing domes on EFRT were not part of the modeling and no VOC emission reduction credits (neither for all of the EFRT being domed nor a percentage of them being domed) were relied upon for attainment nor reasonable further progress of the ozone NAAQS. The ozone attainment date for 1997 and 2008 ozone NAAQS for the NYMA are June 15, 2010 and June 20, 2018, respectively, but the doming requirement under NJAC 7:27-16 has a future compliance date that is beyond this current action, and beyond the attainment date for both the 1997 and 2008 ozone NAAQS. New Jersey recognized that (1) requiring doming of EFRT is an aggressive VOC emission reduction requirement, and (2) when promulgating these aggressive VOC emission reduction requirements to require doming of EFRT, individual facilities may demonstrate, consistent with the SIP approved provisions of NJAC 7:27-16.2 and 16.17, that these requirements are not technologically and economically feasible or RACT as applied to their operations, and therefore, New Jersey did not rely on the maximum benefit of all, nor a percentage of the EFRT being domed in the applicable New Jersey ozone attainment plan. There can be no threat of backsliding of the NAAQS for these two source-specific SIP revisions.

The other two facilities addressed in this revision are located in the southern area of the State, Paulsboro and Pennsauken, and part of the Philadelphia-Wilmington-Atlantic City (PA-NJ-MD-DE) ozone nonattainment area that is classified as marginal nonattainment for both the 2008 and 2015 ozone NAAQS so the State has no requirement to conduct attainment modeling nor to submit an attainment or reasonable further progress plan. Therefore, a comparison of the VOC emissions from the combined 12 EFRT (11 EFRT in Paulsboro and 1 EFRT in Pennsauken) not being domed to the EPA approved 2011 VOC emissions (See, 82 FR 44099 (September 21, 2017)) for the New Jersey portion of Philadelphia-Wilmington-Atlantic City ozone nonattainment area to show that the difference in emissions between the presumptive RACT and source-specific RACT is so small that it should not interfere with attainment or maintenance of the NAAQS or any other applicable requirement. The combined VOC emissions by not doming the 12 EFRT is approximately 14.98 tons per year (see the TSD for this action) or 0.041 tons per day compared to the total VOC emissions for the PA-NJ-MD-DE area of 199.09 tons per day which correlates to approximately 0.021 percentage change in VOC emissions. Based on this minimal VOC emissions change, EPA has determined there to be no threat of backsliding of the NAAQS for these two source-specific SIP revisions.

EPA also notes that New Jersey will have to account for the air quality benefits achieved from the doming of any EFRT in any future applicable ozone attainment or reasonable further progress plans where the planning milestones (i.e., attainment date or projection year emissions inventory) are beyond the applicable compliance date for doming the EFRT. Specifically, New Jersey will have to account for the doming of any EFRT in the ozone attainment plan for the 2008 serious nonattainment NYMA area which is due August 3, 2020 and must show attainment by July 20, 2021. See 84 FR 44238, August 23, 2019.

Lastly, section 172(e) of the CAA provides that when the Administrator relaxes a NAAQS, the EPA must ensure that all areas which have not attained that NAAQS maintain “controls which are no less stringent than the controls applicable to areas designated nonattainment before such relaxation.” Although section 172(e) has never applied directly to EPA's ozone standards, because those ozone standards have only increased in stringency over time, the EPA has applied the principles of section 172(e) to develop anti-backsliding regulations following revocation of the 1-hour and 1997 ozone standards. For this action, the procedure for approving alternatives pursuant to NJAC 7:27-16.2 and 16.17 has already been approved by the EPA (See, 75 FR 45483 (August 3, 2010)) and is in the New Jersey SIP, so for the purposes of 172(e) the EPA is not altering the RACT provision and is executing it as approved.

IV. Summary of EPA's Final Action

The NJDEP determined that the four facilities discussed above could avoid doming 26 EFRT, because requiring the four facilities' total inventory of 51 EFRT to be domed by the default compliance date under NJAC 7:27-16 would be economically infeasible and not RACT. Specifically, the EPA is approving the NJDEP SIP revisions for 8-hour ozone to allow the Paulsboro facility not to dome eleven EFRT; the Buckeye facilities not to dome five EFRT; and the Phillips 66 Company facility not to dome ten EFRT. The EPA is also approving the requirement to dome the remaining 25 EFRT in accordance with the schedule set out in the facilities' alternative control plan. This SIP revision would require the facilities to dome eight of the 25 EFRT on a delayed timeline due to the economic infeasibility of doming the tanks by 2020 (and convert one EFRT to an internal floating roof tank).

As stated in EPA's October 29, 2018 proposal, NJAC 7:27-16.17 establishes procedures and standards for alternative, facility-specific VOC control requirements. Under NJAC 7:27-16.17(l)(2), a source seeking approval for facility-specific controls must modify its Title V operating permit to incorporate the approved alternative control plan and comply with the plan's requirements in order to comply with NJAC 7:27-16.

V. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the provisions described above in Section IV. Final Action. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. See 62 FR 27968 (May 22, 1997).

VI. Statutory and Executive Order Reviews

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• 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 (Public Law 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175, because the SIP is not approved to apply in Indian country located in the state, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

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

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

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart FF—New Jersey

2. Section 52.1570(d) is amended by adding entries for “Paulsboro Refinery,” “Buckeye Port Reading Terminal,” “Buckeye Pennsauken Terminal,” and “Phillips 66 Company Linden” to the end of the table to read as follows:

Footnotes