[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Rules and Regulations]
[Pages 5299-5303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2581]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. 148, NJ25-1-7282; FRL-5409-4]
Approval and Promulgation of Implementation Plans; Carbon
Monoxide State Implementation Plan Revision State of New Jersey
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is giving a limited approval to part of a request from New
Jersey to revise its State Implementation Plan (SIP) for the control of
carbon monoxide (CO) to incorporate New Jersey's oxygenated gasoline
program. New Jersey submitted these revisions in response to
requirements established under the Clean Air Act, as amended in 1990.
EPA is approving New Jersey's oxygenated gasoline program for the
Northern New Jersey portion of the New York-Northern New Jersey-Long
Island consolidated metropolitan statistical area (CMSA) as the program
applies for the four months from November 1 through the last day of
February. In previous proposals for the States of New York and
Connecticut, EPA has proposed to determine that those four months are
the entire period when the New York-Northern New Jersey-Long Island
CMSA is prone to high ambient concentrations of CO. In a separate
document published in today's Federal Register, EPA is soliciting
comment on this determination for the limited purpose of inviting
comment on additional information concerning emission modeling related
to New Jersey's portion of the multi-state CMSA.
EFFECTIVE DATE: This final rule is effective on March 13, 1996.
ADDRESSES: Copies of the State submittal are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Library, 290
Broadway, 16th Floor, New York, New York 10007-1866
New Jersey Department of Environmental Protection, Office of Energy,
Bureau of Air Quality Planning, 401 East State Street, CN027, Trenton,
New Jersey 08625
FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs
Branch, Environmental Protection Agency, Region II Office, 290
Broadway, 20th Floor, New York, New York 10007-1866 (212) 637-4249.
SUPPLEMENTARY INFORMATION:
Background
Motor vehicles are significant contributors of CO emissions, which
are harmful to human health. An important measure toward reducing these
emissions is the use of cleaner-burning oxygenated gasoline. Extra
oxygen in the fuel enhances fuel combustion and helps to offset fuel-
rich operating conditions, particularly during vehicle starting in cold
weather.
The Clean Air Act (Act) sets forth a number of requirements for
states with areas designated as nonattainment for the National Ambient
Air Quality Standards (NAAQS) set for CO to submit revisions to their
State Implementation Plans (SIPs). Among these is a requirement under
section 211(m) that states with CO nonattainment areas at or above a
9.5 parts per million (ppm) design value implement 2.7 percent
oxygenated gasoline programs by November 1, 1992 and submit these
programs as SIP revisions. This requirement applies to New Jersey
because the State contains a portion of the New York-Northern New
Jersey-Long Island nonattainment area, which has a design value for CO
above 9.5 ppm. The requirement had also originally applied to Southern
New Jersey as well; however, that area, which is part of the
Philadelphia CO nonattainment area, is currently in attainment for CO
and, as such, is no longer required to implement an oxygenated gasoline
program. 60 FR 62741, December 7, 1995. The New York-Northern New
Jersey-Long Island CO nonattainment area is part of the New York-
Northern New Jersey-Long Island Consolidated Metropolitan Statistical
Area (CMSA) and includes the New Jersey Counties of Bergen, Essex,
Hudson, Union, and parts of Passaic. The nonattainment area in Passaic
County includes the Cities of Clifton, Paterson, and Passaic. New
Jersey's portion of the larger CMSA, within which oxygenated fuel sale
is required, consists of the following counties: Bergen, Essex, Hudson,
Hunterdon, Middlesex, Ocean, Passaic, Somerset, Sussex, Union and
Warren.
On November 15, 1992, New Jersey submitted to EPA its oxygenated
fuels program contained in New Jersey Administrative Code Title 7,
Chapter 27, Subchapter 25, ``Control and Prohibition of Air Pollution
by Vehicular Fuels'' (adopted September 1, 1992, and operative November
1, 1992). The program required oxygenated fuel to be supplied during a
CO control period of seven months each year, extending from October 1
through April 30. EPA proposed to approve this submission, along with a
number of other revisions to New Jersey's CO SIP, on November 10, 1994
(59 FR 56019). On February 7, 1995, New Jersey modified its oxygenated
fuels regulations to shorten the length of the control period to four
months each year, from November 1 through the last day of February. 27
N.J.R. 787(a), February 21, 1995. This modification has not been
submitted to EPA as a SIP revision. Subsequently, on September 15,
1995, in the course of actions on the New York and Connecticut CO SIPs,
EPA proposed to find that the appropriate length of the control period
for the entire New York-
[[Page 5300]]
Northern New Jersey-Long Island CMSA is four months. 60 FR 47911 and 60
FR 47907. EPA also proposed to approve New York's oxygenated fuels
program and, in a separate notice, Connecticut's oxygenated fuels
program, both for a four-month control period. 60 FR 47907, September
15, 1995; 60 FR 47911, September 15, 1995. On September 28, 1995, EPA
received a request from New Jersey to waive the oxygenated fuel
requirement for the New Jersey portion of the New York-Northern New
Jersey-Long Island CMSA under section 211(m)(3)(A). This request is
still pending.\1\ Finally, on December 7, 1995, EPA published a direct-
final rule (with an accompanying proposal) to redesignate the Southern
New Jersey Camden County CO nonattainment area to attainment. 60 FR
62741.
\1\ EPA has decided to act on New Jersey's oxygenated gasoline
program at this time, even though the Agency has not completed
review of the waiver request. EPA will revisit this SIP approval if
future action on the waiver request makes that necessary.
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In today's action, EPA is approving New Jersey's oxygenated fuels
program for Northern New Jersey for a four-month control period; this
control period length corresponds to the regulation that is currently
in effect in New Jersey and to the minimum length of control period
specified in section 211(m) of the Act. This approval finalizes the
proposed approval of New Jersey's oxygenated gasoline program for four
of the seven months proposed.
Oxygenated Fuels Requirements
The section 211(m) oxygenated fuels requirement applies to all
states with CO nonattainment areas with design values of 9.5 ppm or
greater based on data for the years 1988 and 1989. Each state's
oxygenated gasoline program must require gasoline sold or dispensed in
the larger of the CMSA or the metropolitan statistical area in which
the nonattainment area is located to contain not less than 2.7 percent
oxygen by weight during the control period. The control period is that
portion of the year in which the area is prone to high ambient
concentrations of CO, as determined by the EPA Administrator. The
length of the control period shall not be less than four months unless
a state can demonstrate that, because of meteorological conditions, a
reduced control period will assure that there will be no carbon
monoxide exceedances outside of such reduced period. (Clean Air Act
section 211(m)(2).) EPA announced guidance on the establishment of
control periods by area in the Federal Register on October 20, 1992.\2\
However, in subsequently proposing to approve the New York CO SIP
revision, EPA proposed to determine that the appropriate length of the
control period for the New York-Northern New Jersey-Long Island CMSA is
four months. 60 FR 47911, September 15, 1995. In a separate related
notice published in today's Federal Register, EPA is soliciting comment
on this determination for the limited purpose of inviting comment on
additional information concerning emission modelling related to New
Jersey's portion of the multi-state CMSA.
\2\ See, ``Guidelines for Oxygenated Gasoline Credit Programs
and Guidelines on Establishment of Control Periods under Section
211(m) of the Clean Air Act as Amended--Notice of Availability,'' 57
FR 47849 (October 20, 1992).
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State Submittal
Section 110, part D of Title I, and section 211(m) of the Act
required New Jersey to submit by November 15, 1992, revisions to the
State's CO SIP, including an oxygenated gasoline program for the New
Jersey portions of the New York-Northern New Jersey-Long Island CMSA.
As part of its November 15, 1992 submittal, the New Jersey Department
of Environmental Protection (NJDEP) submitted a revised rule--
Subchapter 25, ``Control and Prohibition of Air Pollution by Vehicular
Fuels,'' of Chapter 27, Title 7 of the New Jersey Administrative Code.
Subchapter 25 contains the requirements for New Jersey's oxygenated
gasoline program, which was adopted by New Jersey on September 1, 1992.
Summary of EPA Approval
In this action, EPA is approving New Jersey's oxygenated gasoline
program for Northern New Jersey as a revision to the New Jersey CO SIP,
but is confining this action to approval of a program with a four month
control period. For two reasons, it is appropriate at this time for EPA
to take final action to approve New Jersey's oxygenated gasoline
program for four months of the seven proposed.
First, at a minimum, any approved program would have to include a
control period of at least four months to meet the statutory
requirements in section 211(m) of the Act. However, EPA has not yet
made a final determination that the period prone to high ambient
concentrations of CO in the New York-Northern New Jersey-Long Island
CMSA is limited to four months, and EPA did not propose such a
determination in the proposed approval of the New Jersey submission.
EPA will make the final determination of control period length for the
entire CMSA in a final action on the New York and/or Connecticut
proposals, as supplemented by the additional data in today's companion
notice.3 60 FR 47911, September 15, 1995; 60 FR 47907, September
15, 1995. However, EPA is certain now that, given the statutory four-
month minimum, the four-month period covered by today's final action
will be an essential element of any fully approvable New Jersey
oxygenated gasoline SIP submission. Thus, there is no reason for EPA to
await the outcome of the separate notice-and-comment process on the
determination of the appropriate control period before approving New
Jersey's SIP submission for four months.
\3\ The reader is referred to these notices for further
information on EPA's proposed determination.
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Second, New Jersey currently has an oxygenated gasoline program
with a control period consistent with this determination. As explained
further below, EPA cannot approve the New Jersey submission for the
remaining three months so long as the State's laws do not currently
authorize a program for that additional period.
In addition, in this rulemaking EPA is finalizing its approval of
the other elements of New Jersey's oxygenated gasoline program. Since
most of the elements of New Jersey's oxygenated gasoline program remain
unchanged from those proposed for approval, EPA here incorporates by
reference the earlier proposal for all details of the oxygenated
gasoline program apart from the length of the control period and
references to the Camden nonattainment area.4 In a subsequent
final rule EPA will address the other revisions to the New Jersey CO
SIP, not related to the oxygenated gasoline program, that were proposed
to be approved in the November 10, 1994 notice.
\4\ As the Camden nonattainment area is in the process of being
redesignated to attainment without approval and retention of an
oxygenated fuels program, the references to the Camden area and the
``Southern Control Area'' are no longer applicable.
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In this action, EPA is also making the determination that, if and
when EPA takes final action determining that the control period for
this area is the four-month period from November through February, then
New Jersey's oxygenated gasoline SIP submission shall be deemed to meet
fully the requirements of section 211(m) of the Act, and this limited
approval of the four-month part of the New Jersey submission shall be
deemed converted to a full approval of that part.
[[Page 5301]]
Discussion
Approval of the SIP Submission for a Four-Month Control Period
In this action EPA is approving New Jersey's oxygenated gasoline
program only as it applies from November 1 through the last day of
February each year. This limited approval is appropriate given its
consistency with the minimum length of control period required by
statute and New Jersey's current regulatory authority, which is
confined to that four-month period.
Section 211(m)(2) of the Act requires oxygenated gasoline to be
sold during a control period established by the EPA Administrator based
on air quality monitoring data. This period must be no less than four
months, unless the state demonstrates that, because of meteorological
conditions, a reduced period would assure that there would be no
exceedances of the CO NAAQS outside of that period. Barring such a
demonstration, which none of the three affected States has attempted to
make, this provision requires EPA to approve an oxygenated fuels
program with at least a four-month control period. Thus, EPA must
approve at least four months of the seven months of the oxygenated
gasoline program proposed for approval in November 1994. The issue of
whether any additional months should be approved will be automatically
addressed when EPA takes final action on its proposal to modify the
length of the control period, as discussed further below.
EPA's limited approval of the New Jersey oxygenated gasoline
regulation for a four-month control period also ensures that the
approval complies with the Act's requirement that states have authority
to implement SIP provisions. Section 110(a)(2)(E)(i) sets as one
condition for SIP approval that the SIP must provide ``necessary
assurances that the State * * * will have adequate * * * authority
under State * * * law to carry out such [SIP].'' Because New Jersey's
current regulations provide for a four-month control period, EPA's
approval of the SIP revision for the identical control period tailors
the approval to New Jersey's current regulation and ensures that the
revision is approvable under section 110(a)(2)(E).
Finally, while EPA has proposed to determine that the control
period for the area be limited to four months, that determination need
not be finalized in order to approve a four month control period at
this time. EPA believes it is appropriate to approve New Jersey's
oxygenated fuel requirement for four months because this approval would
not increase the stringency of the State submission, a four-month
control period is a necessary element of the statutorily required
program, and the period conforms with the State's current regulation.
In addition, this partial approval ensures that New Jersey's four-month
control period will be consistent with the proposed approval of four-
month control periods in the respective portions of the New York-
Northern New Jersey-Long Island CMSA for Connecticut and New York.
Consequences of Final Determination of Four-Month Control Period
There are several consequences that would flow from a final
determination by EPA that four months is the correct control period for
this area. First, EPA is determining through this final action that, if
and when EPA takes final action determining that the control period for
the area is the four-month period from November through February, then
the corresponding four-month part of the New Jersey SIP submission
shall be deemed to meet fully the requirements of section 2ll(m) of the
Clean Air Act, and this limited approval of the four-month part of the
New Jersey submission shall be deemed converted to a full approval of
that part. There are no sanctions implications from this limited
approval.5
\5\ This action is a limited approval because, until EPA makes a
final determination on the length of the control period for this
area, EPA cannot finally determine whether New Jersey's SIP
submission meets fully the requirements of section 211(m) of the
Act. This action is also a partial approval because EPA is approving
only four months of the seven-month oxygenated gasoline program
submitted by New Jersey.
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Second, if and when EPA takes final action determining that the
control period for the area is the four-month period from November
through February, that action shall be deemed to withdraw EPA's
proposed November 10, 1994 approval of the remaining three months of
the period covered in New Jersey's seven-month SIP submission. Such a
determination would preempt New Jersey from establishing a longer
control period due to the prohibition of certain state fuel controls in
section 211(c)(4)(A) and associated regulation promulgated by EPA on
December 15, 1993. (59 FR 7716, February 16, 1994).
Section 211 of the Clean Air Act authorizes EPA to regulate fuels
and fuel additives. Under section 211(c)(1), the Administrator has the
authority to control or prohibit the manufacture and sale of fuels and
fuel additives for motor vehicles on the grounds of danger to public
health or impairment of emissions control devices. Section 211(c)(4)(A)
provides that where the Administrator has set such a control or
prohibition under section 211(c)(1) applicable to a characteristic or
component of a fuel or fuel additive, no state may set a control or
prohibition respecting that characteristic or component, unless the
state control or prohibition is identical to the federal control or
prohibition. This provision preempts state fuel controls that are
nonidentical to federal section 211(c)(1) controls on the same
characteristic or component.
EPA promulgated the RFG program under the authority of sections
211(k) and 211(c)(1) (59 FR 7716, February 16, 1994). RFG must contain
2.0% oxygen content by weight, and it is required year-round in the New
York-Northern New Jersey-Long Island CMSA. 40 CFR section 80 subpart D.
In the absence of section 211(m), section 211(c)(4)(A) would preempt
New Jersey from establishing its own minimum oxygen content
requirements different from the RFG requirements in RFG areas. Because
section 211(m) is a specific, more stringent requirement, it overrides
the general preemption provision as to the specific control period
applicable in each area, and states are not preempted from complying
with section 211(m) in RFG areas during that control period. However,
states are still preempted from setting nonidentical controls or
prohibitions on oxygen content in RFG areas to the extent that such
controls or prohibitions are not mandated by section 211(m). This
prohibition on state fuel controls may be waived if a state shows that
a nonidentical fuel control is necessary to achieve a NAAQS. (CAA
section 211(c)(4)(C)).
EPA has proposed to determine that the New York-Northern New
Jersey-Long Island CMSA is prone to high ambient concentrations of CO
during the four-month period of November through February. Section
211(m) requires states to adopt 2.7% oxygenated gasoline requirements
only for the period prone to high ambient concentrations of CO, as
determined by the Administrator. Thus, upon finalization of EPA's
proposed determination, section 211(m) would require New Jersey to
adopt a 2.7% minimum oxygen content standard for only the four months
of November through February. The RFG oxygen content requirement
preempts any state from prescribing or enforcing oxygen content
requirements in this RFG area that go beyond what is mandated by
section 211(m). Thus, New Jersey would be preempted from enforcing an
oxygenated gasoline program for the additional months of October, March
and April.
[[Page 5302]]
Section 110(a)(2)(A) requires SIPs to include ``enforceable * * *
control measures.'' EPA only has authority to approve the enforceable
portion of the State submission, which, upon EPA's determination, would
correspond to a four-month control period. Thus, EPA would be
authorized to approve New Jersey's oxygenated fuel requirements only
for the months of November through February. As a consequence, a final
determination of a four-month control period will be deemed to withdraw
EPA's November 10, 1994 proposed approval of the remaining three months
of the period covered in New Jersey's seven-month SIP submission.
Finally, approving New Jersey's oxygenated gasoline program only
for a four-month control period would be consistent with the proposed
approval of four-month control periods in the respective portions of
the New York-Northern New Jersey-Long Island CMSA for Connecticut and
New York.
Final Action
EPA is approving New Jersey's Subchapter 25 oxygenated fuels
program for the Northern New Jersey portion of the New York-Northern
New Jersey-Long Island CMSA as it applies for a control period of
November 1 through the last day of February. In addition, as described
above, EPA is determining through this final action that, if and when
EPA takes final action determining that the control period for the area
is the four-month period from November through February, then the
corresponding four-month part of the New Jersey SIP submission shall be
deemed to meet fully the requirements of section 2ll(m) of the Clean
Air Act, and this limited approval of the four-month part of the New
Jersey submission shall be deemed converted to a full approval of that
part.
Nothing in this rule should be construed as permitting or allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to any SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and Subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v US EPA, 427 US 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a federal mandate that may result in
estimated annual costs of $100 million or more to the private sector,
or to state, local, or tribal governments in the aggregate.
Through submission of this SIP or SIP revision, the state and any
affected local or tribal governments have elected to adopt the program
provided for under sections 110 and 182 of the Clean Air Act. These
rules may bind state, local and tribal governments to perform certain
actions and also require the private sector to perform certain duties.
To the extent that the rules being approved by this action would impose
any mandate upon the state, local or tribal governments either as the
owner or operator of a source or as a regulator, or would impose any
mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these regulations
under state law. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this action.
EPA has also determined that, in any event, this final action does not
include a mandate that may result in estimated annual costs of $100
million or more to state, local, or tribal governments in the aggregate
or to the private sector.
This action has been classified as a Table 2 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Under section 307(b)(l) of the CAA, petitions for judicial review
of this rule must be filed in the United States Court of Appeals for
the appropriate circuit within 60 days from date of publication. Filing
a petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 rule may not be challenged later in proceedings to
enforce its requirements. (See 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: January 18, 1996.
William J. Muszynski,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart FF--New Jersey
2. Section 52.1570 is amended by adding paragraph (c)(58) to read
as follows:
Sec. 52.1570 Identification of plan.
* * * * *
(c) * * *
* * * * *
(58) Revisions to the New Jersey State Implementation Plan (SIP)
for carbon monoxide concerning the oxygen content of motor vehicle
gasoline, dated November 15, 1992 submitted by the New Jersey State
Department of Environmental Protection (NJDEP).
(i) Incorporation by reference.
(A) Amendments to Chapter 27, Title 7 of the New Jersey
Administrative Code Chapter 27, Subchapter 25, ``Control and
Prohibition of Air Pollution by Vehicular Fuels,'' effective October 5,
1992 (as limited in Sec. 52.1605).
3. Section 52.1605 is amended under Title 7, Chapter 27, by
removing the two existing entries for subchapter 25 and adding a new
entry for subchapter 25 in numerical order to read as follows:
Sec. 52.1605 EPA Approved New Jersey regulations.
[[Page 5303]]
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State regulation State effective date EPA approved date Comments
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* * * * * * *
Title 7, Chapter 27
* * * * * * *
Subchapter 25, ``Control and Oct. 5, 1992..................... [Insert date of publication and Approves 1992 revision of Subchapter 25 except
Prohibition of Air, Pollution by FR page citation]. that (1) oxygenated gasoline provisions are
Vehicular Fuels;''. approved only as they apply to the four month
control period from November 1 through the
last day in February, consistent with the
February 21, 1995 NJDEP modification of
N.J.A.C. 7:27-25; and (2) oxygenated gasoline
provisions are approved only as they apply to
the Northern New Jersey portion of the New
York-Northern New Jersey-Long Island
consolidated metropolitan statistical area.
* * * * * * *
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[FR Doc. 96-2581 Filed 2-9-96; 8:45 am]
BILLING CODE 6560-50-P