[Federal Register Volume 62, Number 125 (Monday, June 30, 1997)]
[Rules and Regulations]
[Pages 35100-35103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17058]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ28-2-170, FRL-5850-2]


Approval and Promulgation of Implementation Plans; New Jersey 15 
Percent Rate of Progress Plan and Phase I and II Ozone Implementation 
Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on a State Implementation Plan (SIP) revision submitted by New 
Jersey which is intended to meet several Clean Air Act requirements. 
EPA is approving revisions to the 1990 base year ozone emission 
inventory; the 1996 and 1999 ozone projection emission inventories; 
photochemical assessment monitoring stations network; demonstration 
that emissions from growth in vehicle miles traveled will not increase 
motor vehicle emissions and, therefore, offsetting measures are not 
necessary; modeling efforts completed to date; transportation 
conformity budgets; and enforceable commitments.
    EPA is also giving conditional interim approval to New Jersey's 15 
Percent Rate of Progress Plan and the 9 Percent Reasonable Further 
Progress Plan. The intended effect of this action is to approve 
programs required by the Clean Air Act which will result in emission 
reductions that will help achieve attainment of the national ambient 
air quality standard (NAAQS) for ozone.

EFFECTIVE DATE: This rule will be effective July 30, 1997.

ADDRESSES: Copies of the New Jersey submittals and EPA's Technical 
Support Document are available at the following addresses for 
inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch, 
295 Broadway, 25th Floor, New York, New York 10007-1866
New Jersey Department of Environmental Protection, Office of Air 
Quality Management, Bureau of Air Quality Planning, 401 East State 
Street, CN418, Trenton, New Jersey 08625

FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 30, 1997 (62 FR 23410), EPA proposed approval of New 
Jersey's State Implementation Plan (SIP) submittals of December 31, 
1996 and February 25, 1997 for the following Clean Air Act (CAA) 
requirements: revisions to the 1990 base year ozone emission inventory; 
the 1996 and 1999 ozone projection emission inventories; photochemical 
assessment monitoring stations network; demonstration that emissions 
from growth in vehicle miles traveled will not increase motor vehicle 
emissions and, therefore, offsetting measures are not necessary; 
modeling efforts completed to date; transportation conformity budgets; 
and enforceable commitments. EPA also proposed conditional interim 
approval of New Jersey's 15 Percent Rate of Progress (ROP) Plan and the 
9 Percent Reasonable Further Progress (RFP) Plan.
    The December and February SIP submittals address the requirements 
for the two severe ozone nonattainment areas in New Jersey--the New 
York, Northern New Jersey, Long Island Area, and the Philadelphia, 
Wilmington, Trenton Area. For the purposes of this action, these areas 
will be referred to as, respectively, the Northern New Jersey ozone 
nonattainment area (NAA) and the Trenton NAA. New Jersey's two SIP 
submittals revised the previously submitted 15 Percent ROP Plan dated 
November 15, 1993.
    A detailed discussion of the SIP revisions and EPA's rationale for 
either approving or conditionally approving them is contained in the 
April 30, 1997 proposal and will not be restated here. The reader is 
referred to the proposal for more details.

II. State Commitment

    EPA proposed to condition its approval of New Jersey's 15 Percent 
ROP and 9 Percent RFP Plans because the emission reductions from the 
enhanced inspection and maintenance (I/M) program were calculated with 
modeling performed before EPA issued final guidance on how to estimate 
emissions. In a letter dated May 29, 1997, New Jersey committed to 
perform the remodeling necessary to estimate the

[[Page 35101]]

emissions reductions that will result from the enhanced I/M program as 
implemented within 12 months from the effective date of today's 
rulemaking.
    As part of the remodeling of the enhanced I/M program, New Jersey 
must demonstrate that the 15 percent and 9 percent emission reductions 
are still being achieved in the Northern New Jersey and Trenton 
nonattainment areas as required by sections 182(b)(1) and 182(c)(2)(B) 
of the CAA and in accordance with EPA's policies and guidance.
    Therefore, EPA is accepting New Jersey's commitment and EPA's 
approval is conditioned upon the State completing the remodeling. Once 
the State satisfactorily fulfills this condition, EPA will take 
rulemaking action to convert the conditional interim approval to an 
interim approval. Should the State fail to fulfill the remodeling 
condition by July 30, 1998, this conditional interim approval will 
convert to a disapproval pursuant to section 110(k)(4) of the CAA. In 
that event, EPA would issue a letter notifying the State that the 
condition has not been met, and that the approval has converted to a 
disapproval.

III. Public Comments

    In response to EPA's proposed action on this New Jersey SIP 
revision, no comments were received.

IV. Conditional Interim Approval

    New Jersey's 15 Percent ROP and 9 Percent RFP Plans contain adopted 
control measures with the exception of the enhanced I/M program which 
had been given a conditional interim approval by EPA on May 14, 1997 
(62 FR 26401) pursuant to the National Highway System Designation Act 
(NHSDA) and section 110 of the CAA. The enhanced I/M program approval 
was granted on an interim basis for a period of 18 months, in order for 
New Jersey to perform an evaluation of emission reduction credits, 
under the authority of section 348 of the NHSDA. A full approval of New 
Jersey's final enhanced I/M SIP revision, which will include the 
State's program evaluation and final adopted State regulations, is 
still necessary under sections 110, 182, 184 and 187 of the CAA. After 
EPA's review of the State's enhanced I/M program evaluation and final 
regulations, EPA will take appropriate rulemaking action. If the 
State's program evaluation demonstrates a shortfall, the State must 
find additional emission reductions.
    Since New Jersey's 15 Percent ROP and 9 Percent RFP Plans are 
dependent on the emission reductions from the enhanced I/M program, EPA 
can only grant an interim approval to the 15 Percent ROP and 9 Percent 
RFP Plans until the State evaluates the effectiveness of the enhanced 
I/M program and EPA takes action on the results of this evaluation. 
Therefore, this approval is being granted on an interim basis for a 
period of 18 months following the effective date of the May 14, 1997 
conditional interim approval of the enhanced I/M rulemaking. At the end 
of this period, the interim approval of the emission credits will 
expire and the credits will be adjusted according to the results of the 
evaluation. At that time, EPA will take action regarding the efficacy 
of the State's SIP under the authority of sections 110 and 182 of the 
CAA.

V. Conclusion

    EPA has evaluated these submittals for consistency with the CAA and 
Agency regulations and policy. EPA is approving New Jersey's: revisions 
to the 1990 base year ozone emission inventory; the 1996 and 1999 ozone 
projection emission inventories; photochemical assessment monitoring 
stations network; demonstration that emissions from growth in vehicle 
miles traveled will not increase motor vehicle emissions and, 
therefore, offsetting measures are not necessary; modeling efforts 
completed to date; transportation conformity budget; and enforceable 
commitments.
    EPA is granting conditional interim approval of New Jersey's 15 
Percent ROP Plan and 9 Percent RFP Plan as a revision to the New Jersey 
SIP. EPA is approving the credits on an interim basis, pending 
verification of New Jersey's enhanced I/M program's performance, 
pursuant to section 348 of the NHSDA. The interim approval of the 15 
Percent ROP and 9 Percent RFP plans will expire on December 14, 1998, 
18 months from the effective date of EPA's final conditional interim 
rulemaking of New Jersey's I/M program which was published in the 
Federal Register on May 14, 1997 (62 FR 26401). The interim approval 
will be replaced by appropriate EPA action based on the evaluation EPA 
receives from New Jersey concerning the enhanced I/M program's 
performance.
    This rulemaking action is a conditional interim approval that will 
convert to interim approval when New Jersey has completed the 
remodeling condition of this rulemaking. If the condition is not met 
within 12 months from the effective date of today's rulemaking, this 
rulemaking will convert to a disapproval. EPA would notify New Jersey 
by letter that the condition has not been met and that the conditional 
interim approval of the 15 Percent ROP and 9 Percent RFP Plans has 
converted to a disapproval. In addition, the reader should note that 
there is a condition on the conditional interim approval of New 
Jersey's enhanced I/M program which if not met, will affect EPA's 
action on the 15 Percent ROP and 9 Percent RFP Plans conditional 
interim approval. If EPA disapproves the New Jersey's enhanced I/M 
program, EPA's conditional interim approval of the 15 Percent ROP and 9 
Percent RFP Plans will also convert to a disapproval.
    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.

VI. Administrative Requirements

A. Executive Order 12866

    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.

B. Regulatory Flexibility Act

    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, the EPA certifies 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 flexibility analysis would constitute Federal

[[Page 35102]]

inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).
    Conditional approvals of SIP submittals 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, EPA certifies 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 flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAA forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing State requirements applicable to small 
entities. Federal disapproval of the State submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 5 U.S.C. 804(2).

E. Petitions for Judicial Review

    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 August 29, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule to 
conditionally approve the New Jersey 15 Percent ROP and 9 Percent RFP 
Plans of the SIP, on an interim basis, 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 
action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2) of the Administrative Procedure 
Act).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 18, 1997.
William J. Muszynski,
Deputy Regional Administrator, Region II.

    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 52.1580 is amended by redesignating paragraphs (a) 
through (c) as paragraphs (a)(1) through (a)(3); by adding a paragraph 
heading before newly designated paragraph (a)(1); and adding new 
paragraph (b) to read as follows:


Sec. 52.1580  Conditional approval.

    (a) Enhanced Inspection and Maintenance. (1) * * *
* * * * *
    (b) 15 Percent and 9 Percent Ozone Plans. New Jersey's December 31, 
1996 and February 25, 1997 submittals for the 15 Percent Rate of 
Progress Plan (15 Percent Plan) and 9 Percent Reasonable Further 
Progress Plan (9 Percent Plan) for the Northern New Jersey (New York, 
Northern New Jersey, Long Island Area) nonattainment area and the 
Trenton (Philadelphia, Wilmington, Trenton Area) nonattainment area, is 
conditionally approved for an interim period as referenced in paragraph 
(a) of this section. The conditions for approvability are as follows:
    (1) New Jersey must remodel by July 30, 1998 to determine 
affirmatively the creditable reductions from the enhanced inspection 
and maintenance (I/M) program as used in the 15 Percent and 9 Percent 
Plans. This remodeling must be in accordance with EPA guidance 
documents: ``Date by which States Need to Achieve all the Reductions 
Needed for the 15 Percent Plan from I/M and Guidance for 
Recalculation,'' note from John Seitz and Margo Oge, dated August 13, 
1996, and ``Modeling 15 Percent VOC Reductions from I/M in 1999--
Supplemental Guidance'', memorandum from Gay MacGregor and Sally 
Shaver, dated December 23, 1996. Should the State fail to fulfill the 
remodeling condition by July 30, 1998, this conditional interim 
approval will convert to a disapproval pursuant to section 110(k)(4) of 
the Clean Air Act.
    (2) New Jersey must demonstrate by December 14, 1998 that 15 
percent and 9 percent emission reductions are still achievable in the 
Northern New Jersey and Trenton nonattainment areas as required by 
sections 182(b)(1) and 182(c)(2)(B) of the Clean Air Act and in 
accordance with EPA's policies and guidance.
    3. Section 52.1582 is amended by adding a sentence to the end of 
paragraph (d)(1), and adding new

[[Page 35103]]

paragraphs (d)(3) through (d)(7) to read as follows:


Sec. 52.1582  Control strategy and regulations: Ozone (volatile organic 
substances) and carbon monoxide.

* * * * *
    (d)(1) * * * Revisions to the 1990 base year emission inventory 
dated December 31, 1996 for the New York/Northern New Jersey/Long 
Island and Philadelphia/Wilmington/Trenton nonattainment areas of New 
Jersey have been approved.
* * * * *
    (3) The 1996 and 1999 ozone projection year emission inventories 
included in New Jersey's December 31, 1996 State Implementation Plan 
revision for the New York/Northern New Jersey/Long Island and 
Philadelphia/Wilmington/Trenton nonattainment areas have been approved.
    (4) The conformity emission budgets for the three metropolitan 
planning organizations and McGuire Air Force Base included in New 
Jersey's December 31, 1996 State Implementation Plan revision have been 
approved.
    (5) The photochemical assessment monitoring stations network 
included in New Jersey's December 31, 1996 State Implementation Plan 
revision for the New York/Northern New Jersey/Long Island and 
Philadelphia/Wilmington/Trenton nonattainment areas has been approved.
    (6) The demonstration that emissions from growth in vehicle miles 
traveled will not increase motor vehicle emissions and, therefore, 
offsetting measures are not necessary which was included in New 
Jersey's December 31, 1996 State Implementation Plan revision for the 
New York/Northern New Jersey/Long Island and Philadelphia/Wilmington/
Trenton nonattainment areas has been approved.
    (7) The enforceable commitments to: participate in the consultative 
process to address regional transport; adopt additional control 
measures as necessary to attain the ozone standard, meet rate of 
progress requirements, and eliminate significant contribution to 
nonattainment downwind; identify any reductions that are needed from 
upwind areas for the area to meet the ozone standard; and implement the 
Ozone Transport Commission NOx Memorandum of Understanding included in 
New Jersey's December 31, 1996 State Implementation Plan revision for 
the New York/Northern New Jersey/Long Island and Philadelphia/
Wilmington/Trenton nonattainment areas have been approved.

[FR Doc. 97-17058 Filed 6-28-97; 8:45 am]
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