[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Rules and Regulations]
[Pages 45399-45402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22791]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ28-1-162-3; FRL-6151-2]


Approval and Promulgation of Air Quality Implementation Plans; 
State of New Jersey; Disapproval of the 15 Percent Rate of Progress 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final rule.

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SUMMARY: EPA hereby gives notification that pursuant to its authority 
under Clean Air Act (the Act), section 110(k)(4), in a December 12, 
1997 letter, EPA notified New Jersey that the conditional interim 
approval of the New Jersey 15 Percent Rate of Progress Plan had been 
converted to a disapproval. The letter triggered the 18-month time 
clock for the mandatory application of sanctions under section 179(a) 
of the Act and the 24-month time clock for the Federal Implementation 
Plan (FIP) under section 110(c)(1). This also serves to amend Title 40, 
part 52 to note the conversion of the conditional interim approval to a 
disapproval.

EFFECTIVE DATE: This action is effective as of December 12, 1997.

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

Environmental Protection Agency, Region II Office, Air Programs Branch, 
290 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: On April 30, 1997 (62 FR 23410), EPA 
proposed a conditional interim approval of New Jersey's December 31, 
1996 and February 25, 1997 SIP submittals pertaining to New Jersey's 15 
Percent Rate of Progress (ROP) Plan as well as taking action on other 
Clean Air Act requirements. On June 30, 1997, an interim final rule was 
published in the Federal Register (62 FR 35100) which granted a 
conditional interim approval of New Jersey's 15 Percent ROP Plan.
    EPA's conditional interim approval of the 15 Percent ROP Plan was 
based on, among other things, the State starting the enhanced 
inspection and maintenance program component of the 15 Percent ROP Plan 
in sufficient time to achieve the 15 percent reduction in volatile 
organic compounds (VOC) emissions that the State relied upon to fulfill 
the 15 percent requirement. EPA granted the conditional interim 
approval of the 15 Percent ROP Plan based on New Jersey achieving the 
emission reductions from the enhanced inspection and maintenance 
program. Based on New Jersey's schedule and due to New Jersey's delays 
in starting the enhanced inspection and maintenance program, New Jersey 
cannot achieve the required 15 percent emission reductions.
    As a result, EPA notified New Jersey by a December 12, 1997 letter 
that the

[[Page 45400]]

conditional interim approval of the New Jersey 15 Percent ROP Plan had 
been converted to a full disapproval pursuant to section 110(k) of the 
Clean Air Act (the Act), 42 U.S.C. 7410(k). This action taken on 
December 12, 1997 started a mandatory sanctions clock for the 15 
Percent ROP Plan. Unless this clock is stopped, starting 18 months from 
December 12, 1997, increased emissions from new or modified major 
sources of VOCs and nitric oxides must be offset at a rate of two tons 
of reduction for every one ton of increased emissions, pursuant to 
section 179(b)(2) of the Act, 42 U.S.C. 7509(b)(2). Starting six months 
thereafter, restrictions on New Jersey's receipt of federal highway 
funds will also begin, pursuant to section 179(b)(1), 42 U.S.C. 
7509(b)(1).
    In addition, two Federal Implementation Plan (FIP) clocks began as 
a result of EPA's December 12, 1997 notification. First, a statutory 
24-month 15 Percent ROP Plan FIP clock began for the New Jersey portion 
of the New York-Northern New Jersey-Long Island ozone nonattainment 
area, pursuant to section 110(c) of the Act, 42 U.S.C. 7410(c). Second, 
pursuant to a consent decree entered on March 26, 1997 in American Lung 
Association of Northern Virginia, et al. v. Carol M. Browner, Civ. No. 
1:96CV01388, in the United States District Court for the District of 
Columbia, an expedited 15 Percent ROP Plan FIP clock began for the New 
Jersey portion of the Philadelphia-Wilmington-Trenton ozone 
nonattainment area. This clock requires that EPA propose a 15 Percent 
ROP Plan FIP by January 15, 1999 and adopt it by August 15, 1999. In 
order to stop the sanctions and FIP clocks, New Jersey must submit a 
new 15 Percent ROP Plan SIP and EPA must take rulemaking approval 
action on the submittal.
    EPA's approval of New Jersey's enhanced inspection and maintenance 
program remains in effect. However, the December 12, 1997 letter began 
a sanctions clock for New Jersey's failure to implement its enhanced 
inspection and maintenance program, in accordance with section 
179(a)(4) of the Act. Unless New Jersey begins implementation of its 
enhanced inspection and maintenance program, starting 18 months from 
December 12, 1997, increased emissions from new or modified major 
sources of VOCs and nitric oxides must be offset at a rate of two tons 
of reduction for every one ton of increased emissions. Starting six 
months thereafter, restrictions of New Jersey's receipt of federal 
highway funds will also begin.
    The enhanced inspection and maintenance SIP approval was a separate 
action and the delayed start date has different consequences for the 15 
Percent ROP Plan SIP than for the enhanced inspection and maintenance 
SIP. Specifically, the New Jersey enhanced inspection and maintenance 
program remains an approved part of the applicable implementation plan 
for New Jersey; therefore, no FIP requirements are triggered. This is 
because the start date was significant only for purposes of taking 
credit for reductions under the National Highway System Designation 
Act. However, the 15 Percent ROP Plan SIP was converted to a 
disapproval because the 15 Percent ROP Plan SIP was not viable without 
the reductions from enhanced inspection and maintenance that the State 
had projected based upon the start date.

Effective Date Under the Administrative Procedures Act

    EPA has issued this action as a rulemaking because EPA has treated 
this type of action as rulemaking in the past. However, EPA believes 
that it would have the authority to issue this action in an informal 
adjudication, and is considering which administrative process-
rulemaking or informal adjudication-is appropriate for future actions 
of this kind. Because EPA has issued this action as a rulemaking, the 
Administrative Procedures Act (APA) applies.
    Today's action was effective on December 12, 1997. Under the APA, 5 
U.S.C. 553(d)(3), agency rulemaking may take effect sooner than 30 days 
after the date of publication in the Federal Register if the Agency 
finds and publishes good cause to mandate an earlier effective date. 
Today's action concerns SIP deadlines that have already passed; and EPA 
previously cautioned the affected state that the SIP submission was 
overdue and that EPA was considering the action it is taking today. In 
addition, today's action simply provides notice of a ``clock'' that was 
initiated on December 12, 1997, which will not result in sanctions 
against the state for 18 months after December 12, 1997, and that the 
state may ``turn off'' through the submission of a complete and 
approvable SIP submittal meeting EPA policy and guidance. These reasons 
support an effective date prior to 30 days after the date of 
publication.
    EPA believes that the good cause exception to the notice and 
comment rulemaking requirement applies to this rulemaking action. 
(Administrative Procedure Act (APA) section 553(a)(B)). Section 
553(a)(B) of the APA provides that the Agency need not provide notice 
and an opportunity for comment if the Agency, for good cause, 
determines that notice and comment are ``impracticable, unnecessary, or 
contrary to the public interest.'' In the present circumstance, notice 
and comment are unnecessary. The conversion of the conditional interim 
approval to a disapproval does not require any judgment on the part of 
the Agency. The issue is clear that the Agency must convert the 
conditional interim approval to a disapproval based upon the 15 Percent 
ROP Plan notice, the enhanced inspection and maintenance plan notice 
and the consent decree entered on March 26, 1997 in American Lung 
Association of Northern Virginia, et al. v. Carol M. Browner, Civ. No. 
1:96CV01388. No substantive review is required to determine that the 
state did not start the program. There is no dispute about the fact 
that the state did not start the enhanced inspection and maintenance 
program. Because there is nothing on which to comment, notice and 
comment rulemaking are unnecessary. In addition, EPA is obligated by 
Court Order to take these actions and the Court Order has previously 
been subject to notice in the Federal Register pursuant to section 
113(g) of the Act, 42 U.S.C. 7413(g).

Remodeling Condition

    EPA's June 30, 1997 conditional interim approval contained a 
remodeling condition (see 40 CFR 52.1580(b)(1)). On July 30, 1998, New 
Jersey satisfied the condition by submitting this remodeling. 
Therefore, section 1580(b)(1) is removed from the CFR.

Administrative Requirements

Executive Order (E.O.) 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review entitled, ``Regulatory 
Planning and Review.'' The final rule is not subject to E.O. 13045, 
entitled ``Protection of Children From Environmental Health Risks and 
Safety Risks,'' because it is not an ``economically significant'' 
action under E.O. 12866.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq. 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and small

[[Page 45401]]

governmental jurisdictions. This final rule will not have a significant 
impact on a substantial number of small entities because EPA's 
disapproval of the state's 15 Percent Plan under section 110 and 
subchapter I, part D of the Clean Air Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements at this time. Any new Federal 
requirements will be subject to separate notice and comment rulemaking 
at which time any impact on small entities will be determined. 
Therefore, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates and E.O. 12875

    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. E.O. 12875 states that 
no federal executive department or agency shall promulgate any 
regulation not required by statute that creates an unfunded mandate on 
any state, local or tribal government.
    EPA has determined that this disapproval action 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 disapproves 
the State's 15 Percent ROP Plan, but does not affect any specific state 
or local control measures nor imposes any new requirements. Any new 
Federal requirements will be subject to separate notice and comment 
rulemaking at which time any costs will be determined. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action. For these reasons, E.O. 12875 
also does not apply.

Congressional Review Act--Submission to Congress and the Comptroller 
General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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. However, section 808 provides that any 
rule for which the issuing agency for good cause finds (and 
incorporates the finding and a brief statement of reasons therefor in 
the rule) that notice and public procedure thereon are impracticable, 
unnecessary or contrary to the public interest, shall take effect at 
such time as the agency promulgating the rule determines. 5 U.S.C. 
808(2). As stated previously, EPA has made such a good cause finding, 
including the reasons therefor, and established an effective date of 
December 12, 1997. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
action does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

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 October 26, 1998. 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 action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ozone.

    Dated: August 14, 1998.
William J. Muszynski,
Deputy Regional Administrator, Region 2.

    40 CFR part 52 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 et seq.

Subpart FF--New Jersey

    2. Section 52.1580 is amended by revising paragraph (b) as follows:


Sec. 52.1580  Conditional approval.

* * * * *
    (b) 9 Percent Ozone Plan. New Jersey's December 31, 1996 and 
February 25, 1997 submittals for the 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 condition for approvability is as follows: New 
Jersey must demonstrate by December 14, 1998 that the 9 percent 
emission reduction is 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. New Sec. 52.1581 is added to read as follows:


Sec. 52.1581  Part D approval status.

    The conditional interim approval of the New Jersey 15 Percent ROP 
Plan (62 FR 35100) submitted on December 31, 1996 and February 25, 1997 
by the New

[[Page 45402]]

Jersey Department of Environmental Protection was converted to a 
disapproval by a December 12, 1997 letter from EPA to New Jersey.
    4. Section 52.1582 is amended by adding new paragraph (e) as 
follows:


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

* * * * *
    (e) The State of New Jersey's March 27, 1996 submittal for an 
enhanced motor vehicle inspection and maintenance (I/M) program, as 
amended on November 27, 1996 and April 1997, is approved pursuant to 
section 110 of the Clean Air Act, 42 U.S.C. 7410. However, since New 
Jersey failed to start its program by November 15, 1997, the interim 
approval granted under the provisions of Section 348 of the National 
Highway Systems Designation Act of 1995 (NHSDA), 23 U.S.C. 348, which 
allowed the State to take full credit in its 15 Percent ROP Plan for 
all the emission reduction credits in its proposal, converted to a 
disapproval when EPA sent finding letters to the State on December 12, 
1997. The finding letters also informed the state that the underlying 
enhanced I/M program approval, pursuant to Section 110 of the Act, 
remained in effect as part of the federally enforceable SIP.

[FR Doc. 98-22791 Filed 8-25-98; 8:45 am]
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