[Federal Register Volume 61, Number 126 (Friday, June 28, 1996)]
[Rules and Regulations]
[Pages 33678-33680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16158]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[Region II Docket No. 146, NJ23-1-7243(c); FRL-5524-4]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; State of New Jersey; 
Revised Policy Regarding Applicability of Oxygenated Fuels Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On September 28, 1995, the New Jersey Department of 
Environmental Protection (NJDEP) submitted requests to redesignate the 
Camden County nonattainment area and nine not-classified areas from 
nonattainment to attainment for carbon monoxide (CO). NJDEP also 
submitted the required plans to assure continued attainment of the CO 
standards in the redesignated areas. On December 7, 1995, EPA published 
a direct final rulemaking (60 FR 62741) approving New Jersey's 
redesignation requests along with several elements of the New Jersey 
State Implementation Plan (SIP) for CO.
    This action announced that the rulemaking would take effect on 
February 5, 1996 (60 days after publication), unless EPA received 
adverse comments by January 8, 1996 (30 days after publication), in 
response to a notice of proposed rulemaking published on the same day 
(60 FR 62792). EPA also committed to withdraw the direct final rule in 
the event that it received adverse comments, and to respond to any 
adverse comments in a subsequent final rulemaking action. EPA did 
receive adverse comments on this action, but failed to withdraw the 
final rule within the 60 days given in the notice of direct final 
rulemaking. Therefore, the rule took effect on February 5, 1996.

[[Page 33679]]

    EPA is responding to the comments it received; but, for the 
following reasons, EPA is not changing the final rule in response to 
those comments. Had EPA withdrawn the direct final rule prior to its 
going into effect, EPA would have taken final action based on the 
proposal to promulgate a rule identical to the direct final rule that 
went into effect. Rather than now take the action of withdrawing the 
direct final rule only to repromulgate simultaneously an identical 
rule, in this action EPA is deciding to maintain the rule unchanged. 
EPA believes that withdrawal and repromulgation are unnecessary since 
the results would be identical to that obtained simply by leaving the 
rule unchanged and responding to the comments.
    This action provides interested parties an opportunity to review 
how EPA addressed the comments and to petition for judicial review of 
EPA's action in this final rulemaking within 60 days of this 
publication, as provided in section 307(b)(1) of the Clean Air Act.

EFFECTIVE DATES: February 5, 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, Air Programs Branch, 
290 Broadway, 20th 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
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, SW, Washington, DC 
20460

FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs 
Branch, Environmental Protection Agency, Region II Office, 290 
Broadway, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    Camden County, which is in the Philadelphia-Wilmington-Trenton 
Consolidated Metropolitan Statistical Area (CMSA), was designated 
nonattainment for CO under the provisions of sections 186 and 187 of 
the Clean Air Act. Because the area had a design value of 11.6 parts 
per million based on 1988 and 1989 data, the area was classified 
moderate. (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 
1992), codified at 40 CFR part 81, Sec. 81.331.) This design value was 
based on ambient CO data recorded in the City of Philadelphia. For 
moderate CO nonattainment areas, the Clean Air Act requires that air 
quality must attain the National Ambient Air Quality Standard (NAAQS) 
by December 31, 1995. The last exceedance of the CO NAAQS in Camden 
County occurred in 1989.
    In addition, nine areas were designated as not-classified 
nonattainment under section 107(d)(1)(C) of the Clean Air Act. Three of 
these not-classified areas, the City of Trenton, the City of Burlington 
and the Borough of Penns Grove (part), are located within the 
Philadelphia-Wilmington-Trenton CMSA. Five of the not-classified areas, 
the Borough of Freehold, the City of Morristown, the City of Perth 
Amboy, the City of Toms River and the Borough of Somerville, are 
located in the New York-Northern New Jersey-Long Island CMSA. The 
remaining not-classified area is the City of Atlantic City, which is 
not contained within a CMSA. Atlantic City is part of the Atlantic City 
MSA. The oxygenated gasoline requirements applicable to each of these 
areas depend upon its location in the State. These requirements are 
discussed in a December 7, 1995 direct final notice (60 FR 62741).
    The nine areas were considered ``not-classified'' because they 
previously had been designated nonattainment; however, air quality data 
collected during the period 1988 and 1989 showed that the NAAQS were 
met or data were not available. In those instances where air quality 
was no longer being monitored, concentrations measured in prior years 
had been well below the CO NAAQS.
    In an effort to comply with the Clean Air Act and to ensure 
continued attainment of the NAAQS, on September 28, 1995, the State of 
New Jersey submitted CO redesignation requests and maintenance plans 
for Camden County and the nine not-classified areas. This submittal 
contained evidence that public hearings were held on September 8, 1995.
    EPA published a direct final notice (60 FR 62741) and a proposed 
notice (60 FR 62792) on December 7, 1995. Since comments were received 
which needed addressing, EPA is addressing these comments at this time. 
The reader is referred to the direct final notice for a detailed 
discussion of EPA's action.

II. Comments

    EPA received comments from The New York Mercantile Exchange (NYMEX) 
and the New York State Department of Environmental Conservation 
(NYSDEC) on the December 7, 1995 notice. EPA's response to the comments 
is contained in a Technical Support Document entitled ``New Jersey 
Carbon Monoxide Redesignation Request For Camden County & Nine Not-
Classified Areas Technical Support Document (TSD); October 16, 1995; 
Amended March 7, 1996'' found in Docket No. 146.
    EPA does not believe that any of the comments present reasons why 
the Agency should not proceed with its proposed action, and the Agency 
is confident that New Jersey's redesignation request is technically 
sound. Therefore, EPA reaffirms its redesignation of Camden County and 
the nine not-classified areas in New Jersey to attainment of the CO 
NAAQS.

III. Summary

    EPA is approving the Camden County and nine not-classified CO 
maintenance plans because they meet the requirements set forth in 
section 175A of the Clean Air Act. In addition, the Agency is approving 
the requests for redesignating Camden County and the nine not-
classified areas to attainment because the State has demonstrated 
compliance with the requirements of section 107(d)(3)(E) of the Act for 
redesignation.
    In the December 7, 1995 notice EPA also took action on the 
contingency measures and statewide emissions inventory found in the New 
Jersey CO SIP. The contingency measures include transportation control 
measures which cover traffic flow improvements, park & ride lots, and 
increased ridesharing. EPA received no comments on these SIP elements.
    The State has demonstrated to EPA's satisfaction that Camden County 
and the nine not-classified areas had attained the CO standard before 
the implementation of the oxygenated gasoline program and that as a 
result the oxygenated gasoline program was not needed to attain or 
maintain the CO standard. Therefore, EPA finds that the oxygenated 
gasoline program is not required in these areas in order to meet the 
criteria for redesignation.
    Nothing in this action 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 the 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

[[Page 33680]]

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 
Clean Air Act 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. Moveover, due to the nature of the federal-state relationship 
under the Clean Air Act, 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 plan revision, the state and any 
affected local or tribal governments have elected to adopt the program 
provided for under sections 110 and 187 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 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.
    Under 5 U.S.C. section 605(b), I certify that redesignations do not 
have a significant economic impact on a substantial number of small 
entities. (See 46 FR 8709.)
    This action has been classified as a Table 3 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)(1) of the Clean Air Act, 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 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations.

40 CFR Part 81

    Air pollution control, National parks, and Wilderness areas.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: May 31, 1996.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 96-16158 Filed 6-27-96; 8:45 am]
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