[Federal Register Volume 67, Number 23 (Monday, February 4, 2002)]
[Rules and Regulations]
[Pages 5152-5170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1753]



[[Page 5151]]

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Part II





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Implementation Plans; New Jersey and New 
York's Reasonable Further Progress Plans, Transportation Conformity 
Budgets and 1-Hour Ozone Attainment Demonstrations State Implementation 
Plans: Final Rule

  Federal Register / Vol. 67, No. 23 / Monday, February 4, 2002 / Rules 
and Regulations  

[[Page 5152]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ50-238; FRL-7132-4]


Approval and Promulgation of Implementation Plans; New Jersey 
Reasonable Further Progress Plans, Transportation Conformity Budgets 
and 1-Hour Ozone Attainment Demonstrations State Implementation Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving several New Jersey State Implementation Plans 
(SIP) revisions addressing several Clean Air Act requirements. 
Specifically, EPA is approving 1-hour Ozone Attainment Demonstrations, 
Reasonable Further Progress Plans for milestone years 2002, 2005 and 
2007, conformity budgets for 2002, 2005 and 2007, contingency measures, 
a 1996 periodic emission inventory, ozone projection year emission 
inventories for 2002, 2005 and 2007, enforceable commitments for the 1-
hour ozone attainment demonstration, and reasonably available control 
measure analysis for the New York-Northern New Jersey-Long Island 
nonattainment area (NAA) and the Philadelphia, Wilmington, Trenton NAA. 
The intended effect of this action is to approve programs required by 
the Clean Air Act which will result in emission reductions that will 
achieve attainment of the 1-hour national ambient air quality standard 
for ozone in the New York-Northern New Jersey-Long Island NAA and the 
Philadelphia, Wilmington, Trenton NAA.

EFFECTIVE DATE: This rule will be effective March 6, 2002.

ADDRESSES: Copies of the State submittals are available at the 
following addresses for inspection 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 Pollution Control, 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: Paul Truchan, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?
II. What are the details of EPA's specific actions?
    A. Emission Inventories
    B. RFP Plans for 2002, 2005 and 2007
    C. Ozone Contingency Measures
    D. Conformity Budgets
    E. Reasonably Available Control Measure Analysis
    F. 1-hour Ozone Attainment Demonstration SIP Including 
Enforceable Commitments
III. What comments were received on the proposed approvals and how 
has EPA responded to them?
    A. Attainment Demonstrations
    1. General Comments
    2. Weight of Evidence
    B. Reliance on the Nitrogen Oxide SIP Call and the Tier2/Sulfur 
Rule
    C. Comments on RACM
    D. Approval of Attainment Demonstrations That Rely on State 
Commitments or State Rules For Emission Limitations to Lower 
Emissions in the Future not yet Adopted by a State and/or Approved 
by EPA
    E. Adequacy of Motor Vehicle Emissions Budgets
    F. Attainment Demonstration and Rate of Progress Motor Vehicle 
Emissions Inventories
    G. VOC Emission Reductions
    H. Credit for Measures not Fully Implemented
    I. Enforcement of Control Programs
    J. MOBILE6 and Motor Vehicle Emissions Budgets (MVEBs)
    K. MOBILE6 Grace Period
    L. Two-Year Option to Revise the MVEBs
    M. Measures for the 1-Hour NAAQS and for Progress Toward 8-Hour 
NAAQS
    N. Attainment and Post 1999 Reasonable Further Progress 
Demonstrations
IV. Conclusion
V. Administrative Requirements

I. What Action Is EPA Taking Today?

    EPA is approving several State Implementation Plan (SIP) revisions 
submitted by New Jersey to address Clean Air Act (CAA) requirements 
related to attainment of the national ambient air quality standard for 
ozone. These submittals apply to the New Jersey portions of two severe 
ozone nonattainment areas--the New York, Northern New Jersey, Long 
Island Area, and the Philadelphia, Wilmington, Trenton Area. For 
purposes of this action these areas will be referred to as, 
respectively, the Northern New Jersey ozone nonattainment area (NAA) 
and the Trenton ozone NAA. The counties located within the Northern New 
Jersey NAA are: Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, 
Morris, Ocean, Passaic, Somerset, Sussex, and Union. The counties 
within the Trenton NAA are: Burlington, Camden, Cumberland, Gloucester, 
Mercer, and Salem. Unless otherwise noted, the submissions referenced 
are for both NAAs.
    Specifically, EPA is approving New Jersey's:
    --1996 periodic emission inventory;
    --2002, 2005 and 2007 ozone emission inventories (which are 
referred to as projection year emission inventories);
    --2002, 2005 and 2007 Reasonable Further Progress (RFP) Plans;
    --ozone contingency measures;
    --2002, 2005 and 2007 conformity budgets;
    --reasonably available control measure analysis; and
    --1-hour ozone attainment demonstrations for the Northern New 
Jersey and Trenton NAAs with enforceable commitments.
    Table 1 identifies the SIP revisions that have been submitted to 
fulfill the CAA requirements for the 1-hour ozone attainment 
demonstrations.

  Table 1.--Summary of Submittals Relevant to New Jersey's 1-hour Ozone
                      Attainment Demonstration SIP
------------------------------------------------------------------------
                  Date                               Content
------------------------------------------------------------------------
August 31, 1998........................  Attainment demonstrations.
October 16, 1998.......................  Public participation appendix.
April 26, 2000.........................  1. Revised Motor Vehicle
                                          Emissions Budgets (MVEB).
                                         2. Commitments to:
                                         --Adopt and submit additional
                                          control measures for
                                          attainment by October 31, 2001
                                         --Revise transportation
                                          conformity budgets to include
                                          benefits from the Tier 2/
                                          Sulfur-in-fuel rule
                                         --Revise attainment year
                                          transportation conformity
                                          budgets 1 year after release
                                          of MOBILE6
                                         --Revise transportation
                                          conformity budgets if
                                          additional measures include
                                          mobile measures
                                         --Perform Mid course review
April 11, 2001.........................  1. 1996 Periodic emission
                                          inventory.
                                         2. 2002, 2005, 2007 projection
                                          year emission inventories.
                                         3. Reasonable Further Progress
                                          Plans for 2002, 2005 and 2007.
                                         4. Contingency measures.
                                         5. 2002, 2005 and 2007
                                          Conformity Budgets.

[[Page 5153]]

 
June 18, 2001..........................  Proposed Reasonably Available
                                          Control Measures Analysis.
October 8, 2001........................  Adopted Reasonably Available
                                          Control Measures Analysis.
------------------------------------------------------------------------

II. What Are the Details of EPA's Specific Actions?

A. Emission Inventories

    On April 11, 2001, New Jersey submitted a SIP revision which 
contained the statewide 1996 periodic emission inventory, and 2002 and 
2005 ozone projection year emission inventories for the Northern New 
Jersey NAA and Trenton NAA and a 2007 ozone projection year emission 
inventory for the Northern New Jersey NAA. These emission inventories 
contained information on both volatile organic compounds (VOCs) and 
nitrogen oxides (NOX). EPA proposed approval on September 
12, 2001 (66 FR 47419), and extended the comment period on October 16, 
2001 (66 FR 53560). No comments were received on these emission 
inventories. Therefore, EPA is approving them as part of New Jersey's 
SIP.

B. RFP Plans for 2002, 2005 and 2007

    On April 11, 2001, New Jersey submitted a SIP revision which 
contained the 2002 and 2005 RFP Plans for the Northern New Jersey NAA 
and Trenton NAA and a 2007 RFP Plan for the Northern New Jersey NAA. 
New Jersey has identified the control measures necessary to achieve the 
required emission reductions and all the measures have been adopted and 
implemented or adopted and scheduled for implementation. These plans 
identified the control measures that will be generating the emission 
reductions needed to achieve the three percent per year emission 
reductions averaged over each consecutive three-year period until the 
area reaches attainment. EPA proposed approval on September 12, 2001 
(66 FR 47419), and extended the comment period on October 16, 2001 (66 
FR 53560). No comments were received on these RFP Plans. Therefore, EPA 
is approving them as part of New Jersey's SIP.

C. Ozone Contingency Measures

    On April 11, 2001, New Jersey submitted a SIP revision which 
identified the ozone contingency measures for the Trenton NAA and 
Northern New Jersey NAA necessary to fulfill the RFP and attainment 
requirements of section 172(c)(9) of the CAA. Contingency measures are 
control measures that must be implemented should an ozone nonattainment 
area fail to achieve RFP or to attain the NAAQS within the time-frames 
specified under the CAA. Consistent with EPA guidance, New Jersey used 
a combination of excess VOC and NOX emission reductions (0.3 
percent VOC and 2.7 percent NOX) resulting from the 
implementation of adopted State control programs. These reductions are 
available for each milestone year (2002 and 2005) and the attainment 
years (2005 and 2007), for the Trenton NAA and Northern New Jersey NAA 
respectively. EPA proposed approval on September 12, 2001 (66 FR 
47419), and extended the comment period on October 16, 2001 (66 FR 
53560). No comments were received on the contingency measures portion 
of the SIP revision. Therefore, EPA is approving it as part of New 
Jersey's SIP.

D. Conformity Budgets

    On April 11, 2001, New Jersey submitted a SIP revision which 
contained the transportation conformity budgets for the Northern New 
Jersey NAA and Trenton NAA (see Table 2) and the general conformity 
emission budgets for McGuire Air Force Base (see Table 3). It should be 
noted that for the Northern New Jersey NAA the 2002 and 2005 conformity 
budgets are based on the RFP Plan and the 2007 budgets are based on the 
1-hour ozone attainment plan. For the Trenton NAA, the 2002 budgets are 
based on the RFP Plan and the 2005 budgets are based on the 1-hour 
ozone attainment plan.

                             Table 2.--New Jersey Transportation Conformity Budgets
----------------------------------------------------------------------------------------------------------------
                                                                  2002              2005              2007
                                                           -----------------------------------------------------
               Transportation Planning Area                   VOC      NOX      VOC      NOX      VOC      NOX
                                                             (tpd)    (tpd)    (tpd)    (tpd)    (tpd)    (tpd)
----------------------------------------------------------------------------------------------------------------
North Jersey Transportation Planning Authority (NJTPA)....   140.15   240.19    98.11   187.70    93.20   175.51
South Jersey Transportation Planning Organization (SJTPO).    17.49    33.02    13.36    26.42  \1\ n/a      n/a
Delaware Valley Regional Planning Commission (DVRPC)......    55.28    73.05    38.03    55.62      n/a     n/a
----------------------------------------------------------------------------------------------------------------
1. Not applicable.


  Table 3.--McGuire Air Force Base General Conformity Emission Budgets
------------------------------------------------------------------------
                                                  NOX  tons/  NOX  tons/
                       VOC                           year        year
------------------------------------------------------------------------
1990 Baseline...................................       1,112       1,038
1996............................................       1,186       1,107
1999............................................       1,223       1,142
2002............................................       1,405         875
2005............................................       1,406         884
------------------------------------------------------------------------

    On June 1, 2001 (66 FR 29797), EPA found the transportation 
conformity budgets to be adequate for conformity purposes effective 
June 18, 2001. At that time, EPA responded to comments regarding 
adequacy of budgets. EPA proposed approval of all of these budgets on 
September 12, 2001 (66 FR 47419), and extended the comment period on 
October 16, 2001 (66 FR 53560). No specific comments were received on 
the proposed approval of New Jersey's budgets, however, EPA received 
general comments concerning conformity budgets which are addressed in 
Section III. EPA is approving the budgets as part of New Jersey's SIP.
    These budgets (see Table 2 and 3) are consistent with the measures 
in New Jersey's RFP plans and attainment demonstrations that are also 
being approved today. It is important to note that New Jersey has 
committed to revise the 2005 and 2007 attainment year transportation 
conformity emissions budgets within one year of the official release of 
the MOBILE6 motor vehicles emissions model for regulatory purposes. New 
Jersey has committed to submit new budgets if any additional measures 
involve motor vehicles and affect the motor vehicle budgets. Therefore, 
EPA is approving these budgets only until New Jersey meets its 
commitments and submits new budgets, and EPA finds those budgets 
adequate. Accordingly, once the revised budgets are submitted by the 
State and found adequate by EPA, those budgets will

[[Page 5154]]

replace the 2005 and 2007 attainment year emissions budgets being 
approved today for conformity purposes. EPA is approving New Jersey's 
commitment to revise the attainment year motor vehicle emissions 
budgets using the MOBILE6 model within one year after the release of 
the MOBILE6 model, and the commitment to revise the budgets if any 
additional measures affect the budgets.

E. Reasonably Available Control Measure Analysis

    On June 18, 2001, New Jersey submitted a proposed assessment of 
whether any additional RACM are available to advance the attainment 
date, from 2005 to an earlier year for the Trenton NAA and from 2007 to 
an earlier year for the Northern New Jersey NAA. On September 24, 2001 
(66 FR 48847), EPA proposed approval of New Jersey's RACM analysis and 
on October 16, 2001 (66 FR 53560), EPA extended the comment period for 
this proposal. No specific comments were received on New Jersey's RACM 
analysis, however, EPA received general comments concerning RACM which 
are addressed in section III. EPA is approving New Jersey's analysis 
which determined that there are no additional control measures 
available, beyond those already included in the attainment 
demonstrations, that are technically or economically feasible and would 
advance the attainment dates of 2005 or 2007 for the Trenton NAA or 
Northern New Jersey NAA, respectively. However, EPA does believe that 
the control strategies considered in New Jersey's RACM analysis may 
have potential for reducing ozone levels over the longer term, and we 
recommend that New Jersey and other states in the Ozone Transport 
Region revisit these control strategies when they begin developing the 
8-hour ozone standard SIP.

F. 1-hour Ozone Attainment Demonstration SIP Including Enforceable 
Commitments

    On December 16, 1999 (64 FR 70380), EPA proposed approval of New 
Jersey's 1-hour Ozone Attainment Demonstration SIP. However, this 
approval was contingent upon New Jersey submitting the following:
    (1) The adopted NOX SIP Call program as a SIP revision;
    (2) The adopted CAA required measures for severe nonattainment 
areas and adopted measures relied on in the modeled 1-hour Ozone 
Attainment Demonstration SIP;
    (3) enforceable commitments to:
    a. Adopt and submit sufficient measures to address the additional 
emission reductions identified by EPA as necessary for attainment;
    b. Submit revised transportation conformity budgets to include the 
Tier 2/Sulfur program benefits, if these benefits have not already been 
incorporated;
    c. Revise the Attainment Demonstration SIP, including recalculation 
of the transportation conformity budgets (if any of the additional 
emission reductions pertain to motor vehicle measures) to reflect the 
adopted additional measures needed for attainment; and
    d. Revise the Attainment Demonstration, including transportation 
conformity budgets, within one year of the release of MOBILE6.
    The specifics of how New Jersey fulfilled all these requirements 
are discussed below.
(1) NOX SIP Call Submittal
    On December 10, 1999 and July 31, 2000, New Jersey submitted 
adopted SIP revisions which fulfilled the NOX SIP Call 
requirements. Specifically, New Jersey adopted Subchapter 31 
``NOX Budget Program,'' of Title 7, Chapter 27 of the New 
Jersey Administrative Code in order to strengthen its 1-hour Ozone 
Attainment Demonstration SIP and to comply with the NOX SIP 
Call during each ozone season, i.e., May 1 through September 30, 
beginning in 2003. On May 22, 2001 (66 FR 28063), EPA approved New 
Jersey's SIP revisions as meeting the NOX SIP Call. It is 
important to note that New Jersey is implementing its NOX 
SIP Call rules requiring source compliance by 2003, even though an 
order from the D.C. Circuit Court allowed that full implementation 
could be rolled back to 2004.
(2) CAA Measures and Control Measures Relied on in the Modeled 1-hour 
Ozone Attainment Demonstration SIP
    New Jersey has already adopted the control measures required for 
areas classified as severe under section 182 of the CAA for the 
Northern New Jersey and Trenton NAAs. Table 4 presents a summary of the 
control measures that are relied on in the 1-hour Ozone Attainment 
Demonstration SIP, including the Rate of Progress (ROP) and RFP plans. 
The reader is referred to EPA's March 1, 1999 (64 FR 9952) proposed 
approval of New Jersey's 15 and 9 Percent ROP Plans and September 12, 
2001 (66 FR 47419) proposed approvals of New Jersey's RFP Plans for a 
more detailed discussion of the control measures identified.

                         Table 4.--Summary of Ozone Control Measures in New Jersey's SIP
----------------------------------------------------------------------------------------------------------------
              Control measure                                          Type of measure
----------------------------------------------------------------------------------------------------------------
On-Road Sources:
    Federal Motor Vehicle Control program    Federal
     (Tier 1 & 2).
    National Low Emission Vehicle 1 (NLEV).  State opt-in--SIP approved
    Enhanced Inspection & Maintenance......  State adopted--SIP approved
    Reformulated Gasoline (Phase 1 & 2)....  Federal
    Heavy Duty Diesel Engines (On-road)....  Federal
Non-Road Sources:
    Federal Spark Ignition Small Engine      Federal
     standards.
    Federal New Gasoline Spark Ignition      Federal
     Marine Engine standards.
    Federal Nonroad Compression Ignition     Federal
     engines.
    Locomotive & Locomotive Engines........  Federal
    Commercial Marine Diesel Engines.......  Federal
Stationary Sources:
    VOC CTG Source Categories..............  State adopted--SIP approved
    VOC Non-CTG Source Categories--RACT....  State adopted--SIP approved
    NOX RACT...............................  State adopted--SIP approved
    Marine Vessel Ballasting & Loading       State adopted--SIP approved
     Operations.
    Stage II Vapor Recovery & On-board       State adopted--SIP approved & Federal
     Refueling Vapor Recovery (ORVR).
    OTC NOX MOU Controls...................  State adopted--SIP approved
    NOX SIP Call Program...................  State adopted--SIP approved

[[Page 5155]]

 
Area Sources:
    AIM Surface Coatings...................  State adopted--SIP approved & Federal
    Consumer & Commercial Products.........  State adopted--SIP approved & Federal
    Autobody Refinishing...................  Federal
    Hazardous Organic NESHAP...............  Federal
    Landfill Controls......................  State adopted--SIP approved & Federal
----------------------------------------------------------------------------------------------------------------
1 To the extent NLEV not superceded by Tier 2.

    In the December 16, 1999 proposal, EPA specifically identified two 
CAA required control programs that had yet to be approved by EPA: Post-
1999 RFP Plans with control measures needed to meet these Plans and 
implementation of the Enhanced Inspection and Maintenance (I/M) 
program. As discussed above, EPA is approving New Jersey's Post-1999 
RFP Plans as part of today's action. On June 12, 2001 (66 FR 31544), 
EPA made a determination that New Jersey has implemented the enhanced 
I/M program and reinstated the interim approval granted under Section 
348 of the National Highway Systems Designation Act. On September 11, 
2001 (66 FR 47130), EPA proposed full approval of the enhanced I/M 
program and on January 22, 2002, EPA took final action giving full 
approval. Therefore, New Jersey has satisfied both of these 
requirements.
(3) Enforceable Commitments
    On April 26, 2000, New Jersey submitted a revision to the 1-hour 
Ozone Attainment Demonstration SIP for the Northern New Jersey and 
Trenton NAAs. This submission addressed the commitments originally 
requested in EPA's December 16, 1999 proposal as follows:
    a. Adopt and submit sufficient measures to address the additional 
emission reductions identified by EPA as necessary for attainment.
    New Jersey submitted an adopted SIP revision containing the 
enforceable commitment to adopt and submit by October 31, 2001 
additional control measures to meet that level of reductions identified 
by EPA in its December 16, 1999 (64 FR 70380) proposed approval of New 
Jersey's 1-hour Ozone Attainment Demonstrations. In addition, as a 
backstop, New Jersey committed to adopt intrastate measures by October 
31, 2001 if the regional measures do not provide sufficient emission 
reductions to achieve the additional reductions identified by EPA. New 
Jersey also committed to work through the OTC process to develop a 
regional strategy regarding the measures necessary to meet the 
additional reductions identified by EPA. In fact, New Jersey has taken 
a active role in the OTC process of identifying and developing regional 
control strategies that would achieve the necessary additional 
reductions to attain the 1-hour ozone standard.
    New Jersey adopted a SIP revision which identified the specific 
measures it would propose to adopt after public notice and comment 
along with the estimated emission reductions these measures could 
achieve and the role these measures play in the attainment 
demonstrations. The following are the measures recommended by the OTC 
and which New Jersey will be taking to public hearing: consumer and 
commercial products rule, architectural and industrial maintenance 
coatings rule, mobile equipment refinishing rule, solvent cleaning 
rule, controls on portable fuel containers as well as the NOX 
model rule (NOX reductions from sources that are not 
included in the 1994 OTC NOX Memorandum of Understanding for 
regional NOX reductions or covered by EPA's NOX 
SIP Call). New Jersey has begun its regulatory development process for 
these measures. In a letter dated December 11, 2001, New Jersey 
provided additional information on their progress in addressing the 
shortfall in emission reductions, including a schedule for the 
rulemaking and publishing the schedule in the ``New Jersey Register'' 
rulemaking calendar dated January 7, 2002. See also section III.D. for 
an expanded discussion on New Jersey's commitment.
    b. Submit revised transportation conformity budgets to include the 
Tier 2/Sulfur program benefits, if these benefits have not already been 
incorporated.
    New Jersey submitted revised transportation conformity budgets 
which include the Tier 2/Sulfur program and therefore, this commitment 
has been satisfied.
    c. Revise the Attainment Demonstration SIP, including recalculation 
of the transportation conformity budgets (if any of the additional 
emission reductions pertain to motor vehicle measures) to reflect the 
adopted additional measures needed for attainment.
    New Jersey committed to revise the attainment demonstration SIP by 
submitting additional measures necessary for attainment and to 
recalculate the transportation conformity budgets, if necessary, based 
on those measures.
    d. Revise the Attainment Demonstration, including transportation 
conformity budgets, within one year of the release of MOBILE6.
    All states whose attainment demonstration includes the effects of 
the Tier 2/sulfur program have committed to revise and re-submit their 
motor vehicle emissions budgets after EPA releases MOBILE6. On April 
26, 2000, New Jersey submitted an enforceable commitment to revise its 
attainment year transportation conformity budgets within one year of 
release of MOBILE6.
    As we proposed in the July 28, 2000 supplemental notice of proposed 
rulemaking (65 FR 46383), the final approval action we are taking today 
will be effective for conformity purposes only until revised motor 
vehicle emissions budgets are submitted and we have found them 
adequate. We are limiting the duration of our approval in this manner 
because we are only approving the attainment demonstrations and their 
budgets because the states have committed to revise them. Therefore, 
once we have confirmed that the revised budgets are adequate, they will 
be more appropriate than the budgets we are approving today.
    e. Perform and submit a mid course review.
    Also in the April 26, 2000 SIP revision, New Jersey revised its 
prior commitment to a mid course review (MCR). Specifically, to be 
consistent with EPA's recommendation, New Jersey has revised the date 
for submitting its MCR to December 31, 2003.

[[Page 5156]]

III. What Comments Were Received on the Proposed Approvals and How 
Has EPA Responded to Them?

    EPA received comments from the public on the Notice of Proposed 
Rulemaking (NPR) published on December 16, 1999 (64 FR 47419) for New 
Jersey's ozone attainment demonstration. In addition, EPA received 
comments from the public on the supplemental notice of proposed 
rulemaking published on July 28, 2000 (65 FR 46383) on the attainment 
demonstrations, in which EPA clarified and expanded on two issues 
relating to the motor vehicle emissions budgets in the attainment 
demonstration SIPs. EPA also received comments on the September 12, 
2001 (66 FR 47419) proposed approval of New Jersey's RFP Plans and 
transportation conformity budgets for 2002, 2005 and 2007 and the 
September 24, 2001 (66 FR 48847) proposed approval of New Jersey's RACM 
analysis.

A. Attainment Demonstrations

1. General Comments
    Comment: Several commenters urged EPA to disapprove the attainment 
plan because they believe the plan does not include complete modeling, 
enforceable versions of all Reasonably Available Control Measures 
(RACM) and a control strategy sufficient to achieve attainment. One 
commenter went on to say that because they believe the plan should be 
disapproved and, under the consent decree in NRDC v. Browner, Civ. No. 
99-2976, EPA must commence promulgation of a Federal Implementation 
Plan (FIP). One commenter supported the proposed approval.
    Response: In the following responses, we address the specific 
concerns raised by the commenters in more detail. We believe the plans 
provided by the State of New Jersey are fully approvable under the CAA 
and will provide for attainment as expeditiously as practicable which 
is by November 15, 2005 for the Trenton NAA and November 15, 2007 for 
the Northern New Jersey NAA and the plans includes all reasonably 
available control measures. Therefore, we are finalizing our approval 
in this action. Furthermore, because we are fully approving the plan as 
meeting the requirements of 182(c)(2) and (d) of the CAA, it is 
unnecessary to commence development of a FIP.
    Comment: New Jersey has not provided modeling that shows attainment 
in 2007. A commenter also states that there is no demonstration of 
maintenance of the ozone standard below the 0.12 ppm one-hour standard 
beyond 2007.
    Response: EPA has taken the position that for nonattainment areas 
subject to the requirements of subpart 2 of part D of the CAA, the area 
needs to demonstrate that in the attainment year, the area will have 
air quality such that the area could be eligible for the two one-year 
extensions provided under section 181(a)(5) of the CAA. Under section 
181(a)(5), an area that does not have three-years of data demonstrating 
attainment of the ozone NAAQS, but has complied with all of the 
statutory requirements and that has no more than one exceedance of the 
NAAQS in the attainment year, may receive a one-year extension of its 
attainment date. Assuming those conditions are met the following year, 
the area may receive an additional one-year extension. If the area has 
no more than one exceedance in this final extension year, then it will 
have three-years of data indicating that it has attained the ozone 
NAAQS.
    This position is consistent both with EPA's modeling guidance and 
with the structure of subpart 2 of the CAA. Under EPA's modeling 
guidance, states model air quality for the attainment year--they do not 
model air quality for the three-year period preceding the attainment 
year. As a function of how the model operates, the data produced only 
predicts the air quality for one year. EPA's modeling guidance has 
existed for many years and has been relied on by numerous nonattainment 
areas for demonstrating attainment of the ozone standard. Moreover, EPA 
believes this approach is consistent with the statutory structure of 
subpart 2. Under subpart 2, many of the planning obligations for areas 
were not required to be implemented until the attainment year. Thus, 
Congress did not assume that all measures needed to attain the standard 
would be implemented three years prior to the area's attainment date. 
For example, areas classified as marginal--which had an attainment date 
of three years following enactment of the 1990 CAA amendments were 
required to adopt and implement RACT and I/M ``fix-ups'' that clearly 
could not be implemented three years prior to their attainment date. 
Similarly, moderate areas were required to implement RACT by May 1995, 
only 18 months prior to their attainment date of November 1996. Also, 
the ROP requirement for moderate and above areas, including the 15-
percent plan for reductions by November 1996, applies through the 
attainment year. Thus, EPA believes that Congress did not intend that 
these additional mandatory reductions be in excess of what is needed to 
achieve three-years of ``clean data.'' For these reasons, EPA does not 
agree with the commenter that the State's attainment demonstration 
needs to demonstrate that the area will have three years of data 
showing attainment in the attainment year. However, EPA does believe 
that the CAA requires and that it is prudent for states to implement 
controls as expeditiously as practicable. EPA also believes that for 
the Trenton and Northern New Jersey NAAs, all measures are being 
implemented as expeditiously as practicable and that the areas have 
demonstrated attainment consistent with EPA's modeling guidance.
    A plan for maintenance of the standard is not necessary for the 
attainment demonstration to be approved. A state is not required by the 
CAA to provide a maintenance plan until the state petitions for an area 
to be redesignated to attainment which will not occur until the Trenton 
and Northern New Jersey NAAs have three years of data showing 
compliance with the 1-hour ozone standard. While it is not necessary 
for the state to provide for maintenance of the standard at this time, 
we do believe emissions in the Trenton and Northern New Jersey NAAs 
will continue to decrease after 2005 and 2007, respectively, due to on- 
and off-road vehicle emission control programs that will continue to 
provide additional reductions as the fleet continues to turnover after 
2007. So there is reason to believe that air quality will continue to 
improve after the attainment date.
2. Weight of Evidence
    Comment: The weight of evidence approach does not demonstrate 
attainment or meet CAA requirements for a modeled attainment 
demonstration. Commenters added several criticisms of various technical 
aspects of the weight of evidence approach, including certain specific 
applications of the approach to particular attainment demonstrations. 
These comments are discussed in the following response.
    Response: Under section 182(c)(2) and (d) of the CAA, serious and 
severe ozone nonattainment areas were required to submit by November 
15, 1994, demonstrations of how they would attain the 1-hour standard. 
Section 182(c)(2)(A) provides that ``this'' attainment demonstration 
must be based on photochemical grid modeling or any other analytical 
method determined by the Administrator, in the Administrator's 
discretion, to be at least as effective.'' As described in more detail 
below, the EPA allows states to supplement their photochemical

[[Page 5157]]

modeling results, with additional evidence designed to account for 
uncertainties in the photochemical modeling, to demonstrate attainment. 
This approach is consistent with the requirement of section 
182(c)(2)(A) that the attainment demonstration ``be based on 
photochemical grid modeling,'' because the modeling results constitute 
the principal component of EPA's analysis, with supplemental 
information designed to account for uncertainties in the model. This 
interpretation and application of the photochemical modeling 
requirement of section 182(c)(2)(A) finds further justification in the 
broad deference Congress granted EPA to develop appropriate methods for 
determining attainment, as indicated in the last phrase of section 
182(c)(2)(A).
    The flexibility granted to EPA under section 182(c)(2)(A) is 
reflected in the regulations EPA promulgated for modeled attainment 
demonstrations. These regulations provide, ``The adequacy of a control 
strategy shall be demonstrated by means of applicable air quality 
models, data bases, and other requirements specified in [40 CFR part 51 
Appendix W] (Guideline on Air Quality Models).'' \1\ 40 CFR 
51.112(a)(1). However, the regulations further provide, ``Where an air 
quality model specified in appendix W * * * is inappropriate, the model 
may be modified or another model substituted [with approval by EPA, and 
after] notice and opportunity for public comment * * * '' Appendix W, 
in turn, provides that, ``The Urban Airshed Model (UAM) is recommended 
for photochemical or reactive pollutant modeling applications involving 
entire urban areas,'' but further refers to EPA's modeling guidance for 
data requirements and procedures for operating the model. 40 CFR part 
51, Appendix W, section 6.2.1.a. The modeling guidance discusses the 
data requirements and operating procedures, as well as interpretation 
of model results as they relate to the attainment demonstration. This 
provision references guidance published in 1991, but EPA envisioned the 
guidance would change as we gained experience with model applications, 
which is why the guidance is referenced, but does not appear, in 
Appendix W. With updates in 1996 and 1999, the evolution of EPA's 
guidance has led us to use both the photochemical grid model, and 
additional analytical methods approved by EPA.
---------------------------------------------------------------------------

    \1\ The August 12, 1996 version of ``Appendix W to part 51--
Guideline on Air Quality Models'' was the rule in effect for these 
attainment demonstrations. EPA is proposing updates to this rule, 
that will not take effect until the rulemaking process for them is 
complete.
---------------------------------------------------------------------------

    The modeled attainment test compares model predicted 1-hour daily 
maximum ozone concentrations in all grid cells for the attainment year 
to the level of the National Ambient Air Quality Standard (NAAQS). The 
results may be interpreted through either of two modeled attainment or 
exceedance tests: the deterministic test or the statistical test. Under 
the deterministic test, a predicted concentration above 0.124 parts per 
million (ppm) ozone indicates that the area is expected to exceed the 
standard in the attainment year and a prediction at or below 0.124 ppm 
indicates that the area is expected to not exceed the standard. Under 
the statistical test, attainment is demonstrated when all predicted 
(i.e., modeled) 1-hour ozone concentrations inside the modeling domain 
are at, or below, an acceptable upper limit above the NAAQS permitted 
under certain conditions (depending on the severity of the episode 
modeled).\2\
---------------------------------------------------------------------------

    \2\ Guidance on the Use Of Modeled Results to Demonstrate 
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

    In 1996, EPA issued guidance \3\ to update the 1991 guidance 
referenced in 40 CFR part 51, Appendix W, to make the modeled 
attainment test more closely reflect the form of the NAAQS (i.e., the 
statistical test described above), to consider the area's ozone design 
value and the meteorological conditions accompanying observed 
exceedances, and to allow consideration of other evidence to address 
uncertainties in the modeling databases and application. When the 
modeling does not conclusively demonstrate attainment, EPA has 
concluded that additional analyses may be presented to help determine 
whether the area will attain the standard. As with other predictive 
tools, there are inherent uncertainties associated with air quality 
modeling and its results. The inherent imprecision of the model means 
that it may be inappropriate to view the specific numerical result of 
the model as the only determinant of whether the SIP controls are 
likely to lead to attainment. The EPA's guidance recognizes these 
limitations, and provides a means for considering other evidence to 
help assess whether attainment of the NAAQS is likely to be achieved. 
The process by which this is done is called a weight of evidence (WOE) 
determination. Under a WOE determination, a state can rely on, and EPA 
will consider in addition to the results of the modeled attainment 
test, other factors such as other modeled output (e.g., changes in the 
predicted frequency and pervasiveness of 1-hour ozone NAAQS 
exceedances, and predicted change in the ozone design value); actual 
observed air quality trends (i.e., analyses of monitored air quality 
data); estimated emissions trends; and the responsiveness of the model 
predictions to further controls.
---------------------------------------------------------------------------

    \3\ Ibid.
---------------------------------------------------------------------------

    In 1999, EPA issued additional guidance \4\ that makes further use 
of model results for base case and future emission estimates to predict 
a future design value. This guidance describes the use of an additional 
component of the WOE determination, which requires, under certain 
circumstances, additional emission reductions that are or will be 
approved into the SIP, but that were not included in the modeling 
analysis, that will further reduce the modeled design value. An area is 
considered to monitor attainment if each monitoring site has air 
quality observed ozone design values (4th highest daily maximum ozone 
using the three most recent consecutive years of data) at or below the 
level of the standard. Therefore, it is appropriate for EPA, when 
making a determination that a control strategy will provide for 
attainment, to determine whether or not the model predicted future 
design value is expected to be at or below the level of the standard. 
Since the form of the 1-hour NAAQS allows exceedances, it did not seem 
appropriate for EPA to require the test for attainment to be ``no 
exceedances'' in the future model predictions.
---------------------------------------------------------------------------

    \4\ ``Guidance for Improving Weight of Evidence Through 
Identification of Additional Emission Reductions, Not Modeled.'' 
U.S. Environmental Protection Agency, Office of Air Quality Planning 
and Standards, Emissions, Monitoring, and Analysis Division, Air 
Quality Modeling Group, Research Triangle Park, NC 27711. November 
1999. Web site: http://www.epa.gov/ttn/scram.
---------------------------------------------------------------------------

    The method outlined in EPA's 1999 guidance uses the highest 
measured design value across all sites in the nonattainment area for 
each of three years. These three ``design values'' represent the air 
quality observed during the time period used to predict ozone for the 
base emissions. This is appropriate because the model is predicting the 
change in ozone from the base period to the future attainment date. The 
three yearly design values (highest across the area) are averaged to 
account for annual fluctuations in meteorology. The result is an 
estimate of an area's base year design value. The base year design 
value is multiplied by a ratio of the peak model predicted ozone 
concentrations in the attainment year (i.e., average of daily maximum 
concentrations from all days modeled)

[[Page 5158]]

to the peak model predicted ozone concentrations in the base year 
(i.e., average of daily maximum concentrations from all days modeled). 
The result is an attainment year design value based on the relative 
change in peak model predicted ozone concentrations from the base year 
to the attainment year. Modeling results also show that emission 
control strategies designed to reduce areas of peak ozone 
concentrations generally result in similar ozone reductions in all core 
areas of the modeling domain, thereby providing some assurance of 
attainment at all monitors.
    In the event that the attainment year design value is above the 
standard, the 1999 guidance provides a method for identifying 
additional emission reductions, not modeled, which at a minimum provide 
an estimated attainment year design value at the level of the standard. 
This step uses a locally derived factor which assumes a linear 
relationship between ozone and the precursors.
    A commenter criticized the 1999 guidance as flawed on grounds that 
it allows the averaging of the three highest air quality sites across a 
region, whereas EPA's 1991 and 1996 modeling guidance requires that 
attainment be demonstrated at each site. This has the effect of 
allowing lower air quality concentrations to be averaged against higher 
concentrations thus reducing the total emission reduction needed to 
reach attainment at the higher site. The commenter does not appear to 
have described the guidance accurately. The guidance does not recommend 
averaging across a region or spatial averaging of observed data. The 
guidance does recommend determination of the highest site in the region 
for each of the three-year periods, determined by the base year 
modeled. For example, if the base year is 1990, it is the amount of 
emissions in 1990 that must be adjusted or evaluated (by accounting for 
growth and controls) to determine whether attainment results. These 
1990 emissions would contribute to three design value periods (1988-90, 
1989-91 and 1990-92).
    Under the approach of the guidance document, EPA determined the 
design value for each of those three-year periods, and then averaged 
those three design values, to determine the base design value. This 
approach is appropriate because, as just noted, the 1990 emissions 
contributed to each of those periods, and there is no reason to believe 
the 1990 (episodic) emissions resulted in the highest or lowest of the 
three design values. Averaging the three years is beneficial for 
another reason: It allows consideration of a broader range of 
meteorological conditions-those that occurred throughout the 1988-1992 
period, rather than the meteorology that occurs in one particular year 
or even one particular ozone episode within that year. Furthermore, EPA 
relied on three-year averaging only for purposes of determining one 
component, i.e.--the small amount of additional emission reductions not 
modeled--of the WOE determination. The WOE determination, in turn, is 
intended to be part of a qualitative assessment of whether additional 
factors (including the additional emissions reductions not modeled), 
taken as a whole, indicate that the area is more likely than not to 
reach attainment.
    A commenter criticized the component of this WOE factor that 
estimates ambient improvement because it does not incorporate complete 
modeling of the additional emissions reductions. However, the 
regulations do not mandate, nor does EPA guidance suggest, that states 
must model all control measures being implemented. Moreover, a 
component of this technique--the estimation of future design value--
should be considered a model-predicted estimate. Therefore, results 
from this technique are an extension of ``photochemical grid'' modeling 
and are consistent with Section 182(c)(2)(A). Also, a commenter 
believes that EPA has not provided sufficient opportunity to evaluate 
the calculations used to estimate additional emission reductions. EPA 
provided a full 60-day period for comment on all aspects of the 
proposed rule. EPA has received several comments on the technical 
aspects of the approach and the results of its application, as 
discussed above and in the responses to the individual SIPs.
    A commenter states that application of the method of attainment 
analysis used for the December 16, 1999 NPRs will yield a lower control 
estimate than if we relied entirely on reducing maximum predictions in 
every grid cell to less than or equal to 124 ppb on every modeled day. 
However, the commenter's approach may overestimate needed controls 
because the form of the standard allows up to three exceedances in 
three years in every grid cell. If the model over predicts observed 
concentrations, predicted controls may be further overestimated. EPA 
has considered other evidence, as described above through the weight of 
evidence determination.
    When reviewing a SIP, the EPA must make a determination that the 
control measures adopted are reasonably likely to lead to attainment. 
Reliance on the WOE factors allows EPA to make this determination based 
on a greater body of information presented by the states and available 
to EPA. This information includes model results for the majority of the 
control measures. Although not all measures were modeled, EPA reviewed 
the model's response to changes in emissions as well as observed air 
quality changes to evaluate the impact of a few additional measures, 
not modeled. EPA's decision was further strengthened by each state's 
commitment to check progress towards attainment in a mid course review 
and to adopt additional measures, if the anticipated progress is not 
being made.
    A commenter further criticized EPA's technique for estimating the 
ambient impact of additional emissions reductions not modeled on 
grounds that EPA employed a ``rollback'' modeling technique that, 
according to the commenter, is precluded under EPA regulations. The 
commenter explained that 40 CFR part 51, Appendix W, section 6.2.1.e. 
provides ``Proportional (rollback/forward) modeling is not an 
acceptable procedure for evaluating ozone control strategies.'' Section 
14.0 of Appendix W defines ``rollback'' as ``a simple model that 
assumes that if emissions from each source affecting a given receptor 
are decreased by the same percentage, ambient air quality 
concentrations decrease proportionately.'' Under this approach if 20 
percent improvement in ozone is needed for the area to reach 
attainment, it is assumed a 20 percent reduction in VOC would be 
required. There was no approach for identifying NOX 
reductions.
    The ``proportional rollback'' approach is based on a purely 
empirically/mathematically derived relationship. EPA did not rely on 
this approach in its evaluation of the attainment demonstrations. The 
prohibition in Appendix W applies to the use of a rollback method which 
is empirically/mathematically derived and independent of model 
estimates or observed air quality and emissions changes as the sole 
method for evaluating control strategies. For the demonstrations under 
proposal, EPA used a locally derived (as determined by the model and/or 
observed changes in air quality) ratio of change in emissions to change 
in ozone in order to estimate additional emission reductions to achieve 
an additional increment of ambient improvement in ozone.
    For example, if monitoring or modeling results indicate that ozone 
was reduced by 25 parts per billion during a particular period, and 
that VOC

[[Page 5159]]

and NOX emissions fell by 20 tons per day and 10 tons per 
day respectively during that period, EPA developed a ratio of ozone 
improvement related to reductions in VOC and NOX. This 
formula assumes a linear relationship between the precursors and ozone 
for a small amount of ozone improvement, but it is not a ``proportional 
rollback'' technique. Further, EPA uses these locally derived 
adjustment factors as a component to estimate the extent to which 
additional emissions reductions--not the core control strategies--would 
reduce ozone levels and thereby strengthen the weight of evidence test. 
EPA uses the UAM to evaluate the core control strategies.
    This limited use of adjustment factors is more technically sound 
than the unacceptable use of proportional rollback to determine the 
ambient impact of the entire set of emissions reductions required under 
the attainment SIP. The limited use of adjustment factors is acceptable 
for practical reasons: (1) It obviates the need to expend more time and 
resources to perform additional modeling; (2) it is more consistent 
with recommendations referenced by Appendix W because the adjustment 
factor is a locally derived relationship between ozone and its 
precursors based on air quality observations and/or modeling which does 
not assume a direct proportional relationship between ozone and its 
precursors; (3) lastly, the requirement that areas perform a mid course 
review (a check of progress toward attainment) provides a margin of 
safety.
    A commenter expressed concerns that EPA used a modeling technique 
(proportional rollback) that was expressly prohibited by 40 CFR part 
51, Appendix W, without expressly proposing to do so in a notice of 
proposed rulemaking. However, the commenter is mistaken. As explained 
above, EPA did not use or rely upon a proportional rollback technique 
in this rulemaking, but used UAM to evaluate the core control 
strategies and then applied its WOE guidance. Therefore, because EPA 
did not use an ``alternative model'' to UAM, it did not trigger an 
obligation to modify Appendix W. Furthermore, EPA did propose the use 
of the November 1999 guidance ``Guidance for Improving Weight of 
Evidence Through Identification of Additional Emission Reductions, Not 
Modeled'' in the December 16, 1999 proposal and has responded to all 
comments received on that guidance elsewhere in this document.
    A commenter also expressed concern that EPA applied unacceptably 
broad discretion in fashioning and applying the WOE determinations. For 
all of the attainment submittals proposed for approval in December 1999 
concerning serious and severe ozone nonattainment areas, EPA first 
reviewed the UAM results. In all cases, the UAM results did not pass 
the deterministic test. In two cases--Milwaukee and Chicago--the UAM 
results passed the statistical test; in the rest of the cases, the UAM 
results failed the statistical test. The UAM has inherent limitations 
that, in EPA's view, were manifest in all these cases. These 
limitations include: (1) Only selected time periods were modeled, not 
the entire three-year period used as the definitive means for 
determining an area's attainment status; (2) there are inherent 
uncertainties in the model formulation and model inputs such as hourly 
emission estimates, emissions growth projections, biogenic emission 
estimates, and derived wind speeds and directions. As a result of these 
limitations, for all areas, even Milwaukee and Chicago, EPA examined 
additional analyses to indicate whether additional SIP controls would 
yield meaningful reductions in ozone values. These analyses did not 
point to the need for additional emission reductions for Springfield, 
Greater Connecticut, Metropolitan Washington DC, Chicago and Milwaukee, 
but did point to the need for additional reductions, in varying 
amounts, in the other areas. As a result, the other areas submitted 
control requirements to provide the indicated level of emissions 
reductions. EPA applied the same methodology in these areas, but 
because of differences in the application of the model to the 
circumstances of each individual area, the results differed on a case-
by-case basis.
    As another WOE factor, for areas within the NOX SIP Call 
domain, results from the EPA regional modeling for NOX 
controls as well as the Tier2/Low Sulfur program were considered. Also, 
for all of the areas, EPA considered recent changes in air quality and 
emissions. For some areas, this was helpful because there were emission 
reductions in the most recent years that could be related to observed 
changes in air quality, while for other areas there appeared to be 
little change in either air quality or emissions. For areas in which 
air quality trends, associated with changes in emissions levels, could 
be discerned, these observed changes were used to help decide whether 
or not the emission controls in the plan would provide progress towards 
attainment.
    The commenter also complained that EPA has applied the WOE 
determinations to adjust modeling results only when those results 
indicate nonattainment, and not when they indicate attainment. First, 
we disagree with the premise of this comment: EPA does not apply the 
WOE factors to adjust model results. EPA applies the WOE factors as 
additional analysis to compensate for uncertainty in the air quality 
modeling. Second, EPA has applied WOE determinations to all of the 
attainment demonstrations proposed for approval in December 1999. 
Although for most of them, the air quality modeling results by 
themselves indicated nonattainment, for two metropolitan areas--Chicago 
and Milwaukee, including parts of the States of Illinois, Indiana, and 
Wisconsin, the air quality modeling did indicate attainment on the 
basis of the statistical test.
    The commenter further criticized EPA's application of the WOE 
determination on grounds that EPA ignores evidence indicating that 
continued nonattainment is likely, such as, according to the commenter, 
monitoring data indicating that ozone levels in many cities during 1999 
continue to exceed the NAAQS by margins as wide or wider than those 
predicted by the UAM. EPA has reviewed the evidence provided by the 
commenter and has determined that the 1999 monitor values do not 
constitute substantial evidence indicating that the SIPs will not 
provide for attainment. The values given do not reflect either the 
local or regional control programs which are scheduled for 
implementation in the next several years. Once implemented, the local 
or regional control programs are expected to lower emissions and 
thereby lower ozone values. Moreover, there is little evidence to 
support the statement that ozone levels in many cities during 1999 
continue to exceed the NAAQS by margins as wide or wider than those 
predicted by the UAM. Since areas did not model 1999 ozone levels using 
1999 meteorology and 1999 emissions which reflect reductions 
anticipated by control measures, that are or will be approved into the 
SIP, there is no way to determine how the UAM predictions for 1999 
compare to the 1999 air quality. Therefore, we can not determine 
whether or not the monitor values exceed the NAAQS by a wider margin 
than the UAM predictions for 1999. In summary, there is little evidence 
to support the conclusion that high exceedances in 1999 will continue 
to occur after adopted control measures are implemented.
    In addition, the commenter argued that in applying the WOE 
determinations, EPA ignored factors showing that the SIPs under-predict

[[Page 5160]]

future emissions, and the commenter included as examples certain mobile 
source emissions sub-inventories. EPA did not ignore possible under-
prediction in mobile emissions. EPA is presently evaluating mobile 
source emissions data as part of an effort to update the computer model 
for estimating mobile source emissions. EPA is considering various 
changes to the model, and is not prepared to conclude at this time that 
the net effect of all these various changes would be to increase or 
decrease emissions estimates. For attainment demonstration SIPs that 
rely on the Tier 2/Sulfur program for attainment or otherwise (i.e., 
reflect these programs in their motor vehicle emissions budgets), 
states have committed to revise their motor vehicle emissions budgets 
after the MOBILE6 model is released. EPA will work with states on a 
case-by-case basis if the new emission estimates raise issues about the 
sufficiency of the attainment demonstration. If analysis indicates 
additional measures are needed, EPA will take the appropriate action.
    Comment: The NAAQS requires that in order to demonstrate attainment 
of the 1-hour NAAQS that no more than four ambient ozone concentrations 
exceed 0.12 ppm (235 mg/m3) within any three-year period. That standard 
was based on the evidence needed to establish a margin of safety for 
ozone. Unlike the 8-hour standard, the 1-hour standard contains no 
``rounding convention.'' No provision of the rule provides authority 
for EPA to approve SIPs that will only achieve 124 ppb (242.6 g/m3). 
Thus even if EPA has authority to adopt WOE criteria as a substitute 
for modeled demonstrations of attainment, which we dispute, then the 
New Jersey SIP submissions do not demonstrate attainment of the 1-hour 
NAAQS because it only proposes to reduce ambient ozone to 124 ppb.
    Response: Although the 1-hour NAAQS itself includes no discussion 
of specific data handling conventions similar to that of the 8-hour 
NAAQS, EPA's publicly articulated position and the approach long since 
universally adopted by the air quality management community is that the 
interpretation of the 1-hour ozone standard requires rounding ambient 
air quality data consistent with the stated level of the standard. EPA 
has clearly communicated the data handling conventions for the 1-hour 
ozone NAAQS in regulation and guidance documents. In the 1990 
Amendments to the CAA, Congress expressly recognized the continuing 
validity of EPA guidance.
    As early as 1977, two years before EPA promulgated the 1-hour ozone 
NAAQS, EPA provided in guidance that the level of the standard dictates 
the number of significant figures to be used in determining whether the 
standard was exceeded (Guidelines for the Interpretation of Air Quality 
Standards, OAQPS No. 1.2-008, February 1977). In addition, the 
regulations governing the reporting of annual summary statistics from 
ambient monitoring stations for use by EPA in determining national air 
quality status clearly indicate the rounding convention to be used for 
1-hour ozone data (40 CFR part 58, Appendix F). In 1979, EPA issued 
additional guidance specific to ozone in which EPA provided that ``the 
stated level of the standard is taken as defining the number of 
significant figures to be used in comparisons with the standard. For 
example, a standard level of .12 ppm means that measurements are to be 
rounded to two decimal places (.005 rounds up), and, therefore, .125 
ppm is the smallest concentration value in excess of the level of the 
standard.'' (Guideline for the Interpretation of Ozone Air Quality 
Standards, EPA-450/4-79-003, at p. 6.) EPA's guidance on air quality 
modeling is consistent with those Guidelines. See e.g., Guidance on Use 
of Modeled Results to Demonstrate Attainment of the Ozone NAAQS, July 
1996.
    The level of the 1-hour ozone NAAQS is defined in 40 CFR 50.9 as 
0.12 parts per million (ppm), not 120 parts per billion (ppb) as 
implied by the commenter. In other words, the 1-hour ozone NAAQS is 
specified as two significant digits and the data handling approach 
employed to compare ambient air quality data to the 1-hour ozone 
standard is to round to two decimal places as per the regulations and 
guidance referenced above.
    In the 1990 Amendments to the CAA, Congress expressly provided that 
``[e]ach regulation, standard, rule, notice, order and guidance 
promulgated or issued by the Administrator under this CAA, as in effect 
before the date of the enactment of the CAA Amendments of 1990 shall 
remain in effect according to its terms . . .'' Thus, under the amended 
CAA, Congress expressly carried forth EPA interpretations set forth in 
guidance such as the guideline documents interpreting the NAAQS.

B. Reliance on the Nitrogen Oxide SIP Call and the Tier 2/Sulfur Rule

    Comment: Several commenters stated that given the uncertainty 
surrounding the NOX SIP Call at the time of EPA's proposals 
on the attainment demonstrations, there is no basis for the conclusion 
reached by EPA that states should assume implementation of the NOX 
SIP Call, or rely on it as a part of their demonstrations. One 
commenter claims that there were errors in the emissions inventories 
used for the NOX SIP Call Supplemental Notice (SNPR) and 
that these inaccuracies were carried over to the modeling analyses, 
estimates of air quality based on that modeling, and estimates of EPA's 
Tier 2 tailpipe emissions reduction program not modeled in the 
demonstrations. Thus, because of the inaccuracies in the inventories 
used for the NOX SIP Call, the attainment demonstration 
modeling is also flawed. Finally, one commenter suggests that modeling 
data demonstrates that the benefits of imposing NOX SIP Call 
controls are limited to areas near the sources controlled.
    Response: These comments were submitted prior to several court 
decisions largely upholding EPA's NOX SIP Call, Michigan v. 
United States Env. Prot. Agency, 213 F.3d 663 (D.C. Cir. 2000), cert. 
denied, U.S., 121 S.Ct. 1225, 149 L.Ed. 135 (2001); Appalachian Power 
v. EPA, 251 F.3d 1026 (D.C. Cir. 2001). Although a few issues were 
vacated or remanded to EPA for further consideration, these issues do 
not concern the accuracy of the emission inventories relied on for 
purposes of the NOX SIP Call. Moreover, contrary to the 
commenter's suggestion, the NOX SIP Call modeling data bases 
were not used to develop estimates of reductions from the Tier 2/Sulfur 
program for the severe area 1-hour attainment demonstrations. 
Accordingly, the commenter's concerns that inaccurate inventories for 
the NOX SIP Call modeling lead to inaccurate results for the 
severe-area 1-hour attainment demonstrations are inapposite.
    The remanded issues do affect the ability of EPA and the states to 
achieve the full level of the NOX SIP Call reductions by May 
2003. First, the court vacated the rule as it applied to two States--
Missouri and Georgia--and also remanded the definition of a co-
generator and the assumed emission limit for internal combustion 
engines. EPA has informed the states that until EPA addresses the 
remanded issues, EPA will accept SIPs that do not include those small 
portions of the emission budget. However, EPA is planning to propose a 
rule shortly to address the remanded issues and ensure that emission 
reductions from these states and the emission reductions represented by 
the two source categories are addressed in time to benefit the severe 
nonattainment areas. Also, although the court in the Michigan case 
subsequently

[[Page 5161]]

issued an order delaying the implementation date to no later than May 
31, 2004, and the court in the Appalachian Power case remanded an issue 
concerning computation of the electric generating unit growth factor, 
it is EPA's view that states should assume that the NOX SIP 
Call reductions will occur in time to ensure attainment in the severe 
nonattainment areas. Both EPA and the states are moving forward to 
implement the NOX SIP Call. It is important to note that New 
Jersey is implementing its NOX SIP Call rules requiring 
source compliance by 2003.
    Finally, contrary to the commenter's conclusions, EPA's modeling to 
determine the region-wide impacts of the NOX SIP Call 
clearly shows that regional transport of ozone and its precursors is 
impacting nonattainment areas several states away. This analysis was 
upheld by the court in Michigan.

C. Comments on RACM

    Comment: Several commenters have stated that there is no evidence 
that New Jersey has adopted reasonably available control measures 
(RACM) or that the SIPs provide for attainment as expeditiously as 
practicable. Specifically, the lack of Transportation Control Measures 
(TCMs) was cited in several comments, but commenters also raised 
concerns about potential stationary source controls. One commenter 
stated that mobile source emission budgets in the plans are by 
definition inadequate because the SIPs do not demonstrate timely 
attainment or contain the emissions reductions required for all RACM. 
That commenter claims that EPA may not find adequate a motor vehicle 
emission budget (MVEB) that is derived from a SIP that is inadequate 
for the purpose for which it is submitted. The commenter alleges that 
none of the MVEBs submitted by the states that EPA is considering for 
adequacy is consistent with the level of emissions achieved by 
implementation of all RACM, nor are they derived from SIPs that provide 
for attainment. Some commenters stated that for measures that are not 
adopted into the SIP, the state must provide a justification for why 
the measures were determined to not be RACM.
    Response: EPA reviewed the initial SIP submittals for the Northern 
New Jersey and Trenton NAA and determined that they did not include 
sufficient documentation concerning available RACM measures. For all of 
the severe areas for which EPA proposed approval in December 1999, EPA 
consequently issued policy guidance memorandum to have these states 
address the RACM requirement through an additional SIP submittal. 
(Memorandum of December 14, 2000, from John S. Seitz, Director, Office 
of Air Quality Planning and Standards, re: ``Additional Submission on 
RACM from states with Severe 1-hour Ozone Nonattainment Area SIPs'').
    New Jersey supplemented its original SIP with an analysis of RACM 
(request to parallel process submitted on June 18, 2001 and adopted 
revision submitted on October 8, 2001). EPA proposed to approve this 
supplement to the SIP as meeting the RACM requirements on September 24, 
2001 (66 FR 48847). Based on this supplement, EPA concluded that the 
SIP for the Northern New Jersey and Trenton NAA meets the requirement 
for adopting RACM.
    Section 172(c)(1) of the CAA requires SIPs to contain RACM and 
provides for areas to reach attainment as expeditiously as practicable. 
EPA has previously provided guidance interpreting the requirements of 
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its 
interpretation that potentially available measures that would not 
advance the attainment date for an area would not be considered RACM. 
EPA also indicated in that guidance that states should consider all 
potentially available measures to determine whether they were 
reasonably available for implementation in the area, and whether they 
would advance the attainment date. Further, states should indicate in 
their SIP submittals whether measures considered were reasonably 
available or not, and if measures are reasonably available they must be 
adopted as RACM.
    Finally, EPA indicated that states could reject measures as not 
being RACM because they would not advance the attainment date, would 
cause substantial widespread and long-term adverse impacts, would be 
economically or technologically infeasible, or would be unavailable 
based on local considerations, including costs. The EPA also issued a 
recent memorandum re-confirming the principles in the earlier guidance, 
entitled, ``Guidance on the Reasonably Available Control Measures 
(RACM) Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas.'' John S. Seitz, Director, Office of Air Quality 
Planning and Standards. November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
    On June 18, 2001, New Jersey submitted a proposed analysis of 
Reasonably Available Control Measures (RACM) for the Northern New 
Jersey and Trenton NAA which was adopted after public hearing on 
October 8, 2001 without substantive changes. The RACM analysis included 
an evaluation of potential transportation control measures (TCMs) for 
onroad mobile sources, potential control measures for point, area and 
offroad sources, and other non-TCM onroad control measures. New Jersey 
ranked the source categories by emission level to identify source 
categories with the greatest potential for additional control measure 
benefits, above and beyond what the State is already implementing, that 
would advance the 2005 or 2007 attainment dates. Individual measures 
were then evaluated with regard to their technical feasibility, 
economic feasibility and the speed at which they could be implemented. 
Finally, the sums of the estimated emissions benefits from the 
potentially implementable measures were then compared to the emission 
reductions required to advance the attainment dates for each 
nonattainment area. This analysis was performed for the New Jersey 
portions of the two severe nonattainment areas, the Trenton NAA and the 
Northern New Jersey NAA.
1. Consideration and Implementation of Transportation Control Measures 
(TCMs)
    Fifteen prospective mobile source measures were examined to 
determine if any of these TCMs could be considered reasonably available 
control measures. The candidate measures were screened to determine if 
they were available for potential implementation, and then each measure 
analyzed for its potential emissions reduction benefit, economic 
impact, practicability and potential adverse impact by nonattainment 
area.
    The mobile source measures analyzed were grouped into the following 
five categories; Travel Demand Management and Commuter Choice, 
Transportation Pricing Strategies and Scenarios, Traffic Flow 
Improvements, Transit Projects and Transit Oriented Design and Vehicle 
Fuel and Technology. In addition, two non-mobile source land use 
related measures were examined which have the potential to reduce 
vehicle miles traveled and vehicle emissions.
    The State's analysis found that none of the TCM's, singularly or in 
combination, will yield emissions benefits sufficient to advance the 
attainment dates for the respective New Jersey ozone nonattainment 
areas. The range of combined emissions benefits from VOC and 
NOX was 0.0 tons/day to 2.054 tons/day in the New Jersey 
portion of the Northern New Jersey NAA and from 0.0 tons/day to 1.10

[[Page 5162]]

tons/day in the New Jersey portion of the Trenton NAA. In addition, the 
State also found that implementing certain measures is not cost 
effective. These TCMs are not reasonably available at this time, nor 
may they be able to generate significant emission reductions by the 
attainment date.
    Two land use measures were also reviewed and evaluated for their 
potential impact to reduce vehicle miles traveled and emissions. The 
measures were developed to achieve other State goals and include the 
statewide programs: Open Space Preservation Program in which the State 
commits to preserving 1,000,000 acres of open space over a ten-year 
period, and New Development and Redevelopment Plan which is based on 
``smart growth'' principles.
    The Open Space Preservation Program can not be phased in any faster 
and, therefore, can not advance the ozone attainment dates in the New 
Jersey NAAs. The State Development and Redevelopment Plan is a 
voluntary plan and has no force of law under municipal home rule. This 
limits EPA's ability to enforce such a program as part of a SIP. It 
also requires long lead times before it could be effective on a 
regional scale and it is not anticipated to advance the attainment 
dates in the New Jersey nonattainment areas.
2. Consideration and Implementation of Stationary Source, Area Source, 
and other Non-TCM Measures
    The projected attainment year VOC and NOX emission 
inventories were separately sorted by source category for each 
nonattainment area. All source categories with emissions of five tons 
per day or greater were examined for potential application of new 
control measures. The State evaluated 29 VOC source categories and 25 
NOX source categories. The analysis for feasibility of 
potential controls for each source category included evaluation of the 
potential emissions reduction benefit, technical and economic 
feasibility, and analysis of whether the measure could be implemented 
in time to advance the attainment date.
    Six potentially implementable control measures were identified with 
a combined potential emission reduction benefit of 2.2 tons per day of 
VOC and 0.4 tons per day of NOX in 2004 for the Trenton NAA 
and 7.3 tons per day of VOC and 3.3 tons per day of NOX in 
2006 for the Northern New Jersey NAA. Based on a comparison of the 
emission reductions which are scheduled to occur in the year 
immediately before the attainment year, the combined benefit of the 
potential control measures resulted in less emission reductions. 
Therefore, no TCM or other measure, either singularly or combined, has 
been identified which could advance the attainment dates of either area 
and be considered RACM.
    New Jersey evaluated all source categories that could contribute 
meaningful emission reductions. An extensive list of potential control 
measures was identified and reviewed. The State considered the time 
needed to implement these measures as a further screen of their 
reasonableness and availability. However, EPA believes that some of 
these control measures may offer some benefits in the future for 
purposes of an 8-hour ozone standard, and recommends that New Jersey 
and other states in the OTR revisit these controls in the context of 
any future planning obligations.
    Therefore, EPA proposed in the September 24, 2001 Federal Register 
(66 FR 48847) to approve New Jersey's RACM analysis and its finding 
that no additional measures, individually or as combined measures, were 
technically and economically feasible nor would they advance the 1-hour 
ozone attainment dates.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for the New Jersey NAAs, this 
conclusion is not necessarily valid for other areas. Thus, a 
determination of RACM is necessary on a case-by-case basis and will 
depend on the circumstances for the individual area. In addition, if in 
the future EPA moves forward to implement another ozone standard, this 
RACM analysis would not control what is RACM for these or any other 
areas for that other ozone standard.
    Also, EPA has long advocated that states consider the kinds of 
control measures that the commenters have suggested, and EPA has indeed 
provided guidance on those measures. See, e.g., http://www.epa.gov/otaq/transp.htm. In order to demonstrate that they will attain the 1-
hour ozone NAAQS as expeditiously as practicable, some areas may need 
to consider and adopt a number of measures, including the kind that New 
Jersey itself evaluated in its RACM analysis, that even collectively do 
not result in many emission reductions. Furthermore, EPA encourages 
areas to implement technically available and economically feasible 
measures to achieve emissions reductions in the short term--even if 
such measures do not advance the attainment date--since such measures 
will likely improve air quality. Also, over time, emission control 
measures that may not be RACM now for an area may ultimately become 
feasible for the same area due to advances in control technology or 
more cost-effective implementation of all techniques. Thus, areas 
should continue to assess the state of control technology as they make 
progress toward attainment and consider new control technologies that 
may in fact result in more expeditious improvement in air quality.
    Because EPA is finding that the SIP meets the CAA's requirement for 
RACM and that there are no additional reasonably available control 
measures that can advance the attainment date, EPA concludes that the 
attainment dates being approved are as expeditious as practicable.
    EPA previously responded to comments concerning the adequacy of 
MVEBs when EPA took final action determining the budgets adequate and 
does not address those issues again here. The previous responses are 
found at http://www.epa.gov/otag/transp/conform/njrspnd.pdf.

D. Approval of Attainment Demonstrations That Rely on State Commitments 
or State Rules for Emission Limitations to Lower Emissions in the 
Future Not Yet Adopted by a State and/or Approved by EPA

    Comment: Several commenters disagreed with EPA's proposal to 
approve states' attainment and rate of progress demonstrations because 
not all of the emissions reductions assumed in the demonstrations (a) 
have actually taken place, (b) are reflected in rules yet to be adopted 
and approved by a state and approved by EPA as part of the SIP, and (c) 
are credited legally as part of a demonstration because they are not 
approved by EPA as part of the SIP. Also a commenter maintains that EPA 
does not have authority to accept enforceable state commitments to 
adopt measures in the future in lieu of current adopted measures to 
fill a near-term shortfall of reductions.
    New Jersey submitted an enforceable commitment on April 26, 2000, 
to participate in the OTC process and to adopt measures by October 31, 
2001. New Jersey did participate in the OTC process, however, the 
deadline for choosing and adopting shortfall measures has come and 
gone. So far, New Jersey has not submitted anything to EPA which states 
which control measures New Jersey plans to use to address the 
shortfall. Nor has New Jersey adopted measures to address the required 
emission shortfall reductions.
    With respect to the commitments from New Jersey, the commenters

[[Page 5163]]

contend that the emissions gap must be closed now. Deferred adoption 
and submittal are not consistent with the statutory mandates and are 
not consistent with the CAA's demand that all SIPs contain enforceable 
measures. EPA does not have authority to approve a SIP if part of the 
SIP is not adequate to meet all tests for approval. Because the 
submittal consists in part of commitments, New Jersey has not adopted 
rules implementing final control strategies, and the plan includes 
insufficient reduction strategies to meet the emission reduction goals 
established by New Jersey. Thus, New Jersey has failed to adopt a SIP 
with sufficient adopted and enforceable measures to achieve attainment. 
For these reasons, the submittal also does not meet the definition of a 
``full attainment demonstration SIP,'' in a consent decree EPA entered 
into in NRDC v. Browner, Civ. No. 99-2976 (D.CT. D.C.), which obligates 
EPA to propose a federal implementation plan by November 30, 2001 if 
EPA has not fully approved the New Jersey 1-hour Ozone Attainment 
Demonstration SIP by that date.\5\ For these reasons, EPA should reject 
the New Jersey 1-hour Ozone Attainment Demonstration SIP and impose 
sanctions on the area and publish a proposed FIP no later than October 
15, 2001.
---------------------------------------------------------------------------

    \5\ Since this comment was submitted, the court granted an 
extension from November 30, 2001 to January 15, 2002.
---------------------------------------------------------------------------

    Response: EPA disagrees with the comments, and believes, consistent 
with past practice, that the CAA allows full approval of enforceable 
commitments that are limited in scope where circumstances exist that 
warrant the use of such commitments in place of adopted measures.\6\ 
Once EPA determines that circumstances warrant consideration of an 
enforceable commitment, EPA believes that three factors should be 
considered in determining whether to approve the enforceable 
commitment: (1) Whether the commitment addresses a limited portion of 
the statutorily-required program; (2) whether the state is capable of 
fulfilling its commitment; and (3) whether the commitment is for a 
reasonable and appropriate period of time.
---------------------------------------------------------------------------

    \6\ These commitments are enforceable by the EPA and citizens 
under, respectively, sections 113 and 304 of the CAA. In the past, 
EPA has approved enforceable commitments and courts have enforced 
these actions against states that failed to comply with those 
commitments. See, e.g., American Lung Ass'n of N.J. v. Kean, 670 F. 
Supp.1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC 
v. N.Y. State Dept. of Envs. Cons., 668 F. Supp. 848 (S.D.N.Y.1987); 
Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448, recon. 
granted in part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition for 
Clean Air v. South Coast Air Quality Mgt. Dist., No. CV 97-6916 HLH, 
(C.D. Cal. Aug. 27, 1999). Further, if a state fails to meet its 
commitments, EPA could make a finding of failure to implement the 
SIP under section 179(a) of the CAA, which starts an 18-month period 
for the State to begin implementation before mandatory sanctions are 
imposed.
---------------------------------------------------------------------------

    It is also noted that while New Jersey does rely on commitments to 
adopt additional measures as requested by EPA to insure demonstrating 
attainment, it does not rely on commitments to demonstrate RFP. See 66 
FR 47419, September 12, 2001. New Jersey's RFP plans, discussed above, 
demonstrate RFP with VOC and NOX emission reductions 
achieved within the nonattainment area by the implementation of fully 
promulgated Federal and fully adopted SIP-approved state measures.
    As an initial matter, EPA believes that present circumstances for 
the New York City, Philadelphia, Baltimore and Houston nonattainment 
areas warrant the consideration of enforceable commitments. The 
Northeast states that make up the New York, Baltimore, and Philadelphia 
nonattainment areas submitted SIPs that they reasonably believed 
demonstrated attainment with fully adopted measures. After EPA's 
initial review of the plans, EPA recommended to these areas that 
additional controls would be necessary to ensure attainment. Because 
these areas had already submitted plans with many fully adopted rules 
and the adoption of additional rules would take some time, EPA believed 
it was appropriate to allow these areas to supplement their plans with 
enforceable commitments to adopt and submit control measures to achieve 
the additional necessary reductions. For New Jersey's attainment 
demonstrations for the Northern New Jersey and Trenton NAA, EPA has 
determined that the submission of enforceable commitments in place of 
adopted control measures for these limited sets of reductions will not 
interfere with either area's ability to meet the attainment obligation.
    EPA's approach here of considering enforceable commitments that are 
limited in scope is not new. EPA has historically recognized that under 
certain circumstances, issuing full approval may be appropriate for a 
submission that consists, in part, of an enforceable commitment. See 
e.g., 62 FR 1150, 1187, Jan. 8, 1997 (ozone attainment demonstration 
for the South Coast Air Basin; 65 FR 18903, Apr. 10, 2000 (revisions to 
attainment demonstration for the South Coast Air Basin); 63 FR 41326, 
Aug. 3, 1998 (federal implementation plan for PM-10 for Phoenix); 48 FR 
51472 (state implementation plan for New Jersey). Nothing in the CAA 
speaks directly to the approvability of enforceable commitments.\7\ 
However, EPA believes that its interpretation is consistent with 
provisions of the CAA. For example, section 110(a)(2)(A) provides that 
each SIP ``shall include enforceable emission limitations and other 
control measures, means or techniques . . . as well as schedules and 
timetables for compliance, as may be necessary or appropriate to met 
the applicable requirement of the CAA.'' (emphasis added). Section 
172(c)(6) of the CAA requires, as a rule generally applicable to 
nonattainment SIPs, that the SIP ``include enforceable emission 
limitations and such other control measures, means or techniques . . . 
as may be necessary or appropriate to provide for attainment . . . by 
the applicable attainment date . . .'' (emphasis added.) The emphasized 
terms mean that enforceable emission limitations and other control 
measures do not necessarily need to generate reductions in the full 
amount needed to reach attainment. Rather, the emissions limitations 
and other control measures may be supplemented with other SIP rules--
for example, the enforceable commitments EPA is approving today--as 
long as the entire package of measures and rules provides for 
attainment.
---------------------------------------------------------------------------

    \7\ Section 110(k)(4) provides for ``conditional approval'' of 
commitments that need not be enforceable. Under that section, a 
state may commit to ``adopt specific enforceable measures'' within 
one-year of the conditional approval. Rather than enforcing such 
commitments against the state, the CAA provides that the conditional 
approval will convert to a disapproval if ``the state fails to 
comply with such commitment.''
---------------------------------------------------------------------------

    As provided, after concluding that the circumstances warrant 
consideration of an enforceable commitment--as they do for the Northern 
New Jersey and Trenton NAAs--EPA would consider three factors in 
determining whether to approve the submitted commitments. First, EPA 
believes that the commitments must be limited in scope. In 1994, in 
considering EPA's authority under section 110(k)(4) to conditionally 
approve unenforceable commitments, the Court of Appeals for the 
District of Columbia Circuit struck down an EPA policy that would allow 
states to submit (under limited circumstances) commitments for entire 
programs. Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. 
Cir. 1994). While EPA does not believe that case is directly applicable 
here because the commitments made here are limited in scope. EPA agrees 
with the Court that

[[Page 5164]]

other provisions in the CAA contemplate that a SIP submission will 
consist of more than a mere commitment. See NRDC, 22 F.3d at 1134.
    In the present circumstances, the commitments address only a small 
portion of New Jersey's attainment plans. For the Trenton NAA, the 
commitment addresses only 10.6 percent and 0.7 percent of the total VOC 
and NOX emissions reductions, respectively, necessary to 
attain the standard. For the Northern New Jersey NAA, the commitment 
addresses only 9.1 percent of the VOC and 0.8 percent of the NOX 
emissions reductions necessary to attain the standard. A summary of the 
adopted control measures and other components credited in New Jersey's 
attainment demonstration submission are discussed in Section II of this 
document. These adopted and implemented control measures are the 
majority of the total emissions reductions needed to demonstrate 
attainment.
    As to the second factor, whether the State is capable of fulfilling 
the commitment, EPA considered the current or potential availability of 
measures capable of achieving the additional level of reductions 
represented by the commitment. For the New York, Philadelphia and 
Baltimore nonattainment areas, EPA believes that there are sufficient 
untapped sources of emission reductions that could achieve the minimal 
levels of additional reductions that the areas need. This is supported 
by the recent recommendation of the Ozone Transport Commission (OTC) 
regarding specific controls that could be adopted to achieve the level 
of reductions needed for each of these three nonattainment areas. Thus, 
EPA believes that the states will be able to find sources of reductions 
to meet the shortfall. The states that comprise the New York, 
Philadelphia and Baltimore nonattainment areas are making significant 
progress toward adopting the measures to fill the shortfall. The OTC, 
of which New Jersey is a part, has performed an extensive study and 
model rule development effort. Public meetings were held and the OTC 
model rules where also made available for comment. On March 29, 2001 
the OTC recommended a set of control measures and model rules. 
Currently, the states are working through their adoption processes with 
respect to those, and in some cases other, control measures.
    New Jersey was an active participant in the OTC rule development 
effort and concurred on the recommendation that the Northeast States 
adopt these measures. New Jersey's involvement and support for these 
regional measures is evidence of New Jersey's intent to also adopt them 
statewide. This was demonstrated when New Jersey took to public hearing 
a SIP revision which identified the specific control measures they 
would be proceeding with rulemaking on, along with a description of the 
measures and projected emission reductions. This was submitted as part 
of the adopted October 8, 2001 SIP revision. New Jersey is well 
underway with the regulatory development process for these measures. 
While New Jersey has not made the submission on the date to which it 
committed, EPA believes that it is making sufficient progress to 
support approval of the attainment demonstration because, within a 
short time period, New Jersey will adopt and implement measures that 
are fully consistent with the Northern New Jersey and Trenton NAAs 
attaining the standard by its approved attainment date.
    The third factor, EPA has considered in determining to approve 
limited commitments for the New Jersey attainment demonstrations is 
whether the commitment is for a reasonable and appropriate time period. 
EPA recognizes that both the CAA and EPA have historically emphasized 
the need for submission of adopted control measures in order to ensure 
expeditious implementation and achievement of required emissions 
reductions. Thus, to the extent that other factors, such as the need to 
consider innovative control strategies or the need to work as part of a 
multi-state effort, support the consideration of an enforceable 
commitment in place of adopted control measures. The commitment should 
provide for the adoption of the necessary control measures on an 
expeditious, yet practicable, schedule.
    As provided above, for New York, Baltimore and Philadelphia, EPA 
proposed that these areas have time to work within the framework of the 
OTC to develop, if appropriate, a regional control strategy to achieve 
the necessary reductions and then to adopt the controls on a state-by-
state basis. In the proposed approval of the attainment demonstrations, 
EPA proposed that these areas would have approximately 22 months (until 
October 31, 2001), to complete the OTC and state-adoption processes.
    As a starting point in suggesting this time frame for submission of 
the adopted controls, EPA first considered the CAA ``SIP Call'' 
provision of the CAA--section 110(k)(5)--which provides states with up 
to 18 months to submit a SIP after EPA requests a SIP revision. While 
EPA may have ended its inquiry there, and provided for the states to 
submit the measures within 18 months of it's proposed approval of the 
attainment demonstrations, EPA further considered that these areas are 
all located within the Northeast Ozone Transport Region (OTR) and 
determined that it was appropriate to provide these areas with 
additional time to work through the OTR process to determine if 
regional controls would be appropriate for addressing the shortfall. 
See e.g., 64 FR 70428. EPA believed that allowing these states until 
2001 to adopt these additional measures would not undercut their 
attainment dates of November 2005 or 2007.
    EPA still believes, consistent with the memoranda of understanding 
signed by Robert C. Shinn, Commissioner, New Jersey Department of 
Environmental Protection, that it is New Jersey's stated intention to 
propose, adopt and implement the identified control measures. The 
actual OTC model regulation development process took longer than EPA 
anticipated, 15 months of the 22 months that EPA had thought the 
complete effort should take. This only left the states in the OTC seven 
months to complete the individual state regulatory adoption process. 
Although, as described below, New Jersey did not make its submission by 
that date, EPA believes that the State is sufficiently on track and 
that the SIP should not be disapproved at this time. Moreover, if EPA 
or citizens are concerned about the delay in adoption of the measures, 
EPA and citizens have the ability to take action under CAA (e.g., 
sections 179(a) and (b) and 304) to ensure New Jersey completes the 
adoption process.
    New Jersey is well underway with the regulatory development process 
for all six of the OTC model rules, which include consumer products and 
architectural and industrial coatings rules, a mobile equipment 
refinishing rule, solvent cleaning rule, controls on portable fuel 
containers as well as the NOX model rule (NOX 
reductions from sources that are not included in the 1994 OTC 
NOX Memorandum of Understanding for regional NOX 
reductions or covered by EPA's NOX SIP Call). EPA believes 
that New Jersey is making sufficient progress to support approval of 
the commitment, because New Jersey will adopt and implement the 
additional measures well within a time period fully consistent with New 
Jersey attaining the standard by November 15, 2005 for the Trenton NAA 
and November 15, 2007 for the Northern New Jersey NAA. In a letter 
dated December 11, 2001, New Jersey provided additional information on

[[Page 5165]]

their progress in addressing the shortfall in emission reductions. See 
also section II.F. for further discussion on New Jersey's commitment.
    The enforceable commitments submitted by New Jersey for the 
Northern New Jersey and Trenton NAAs, in conjunction with the other SIP 
measures and other sources of emissions reductions, constitute the 
required demonstration of attainment and the commitments will not 
interfere with the area's ability to make reasonable progress under 
section 182(c)(2)(B) and (d). EPA believes that the delay in submittal 
of the final rules is permissible under section 110(k)(3) because New 
Jersey has obligated itself to submit the rules by specified short-term 
dates, because it is making reasonable efforts to adopt and submit them 
and because the State's commitment is enforceable by EPA and the 
public. Moreover, as discussed in the December 16, 1999 proposal, its 
Technical Support Document (TSD), and Section II of this document, the 
SIP submittal approved today contains major substantive components 
submitted as adopted regulations and enforceable orders.
    EPA believes that the New Jersey SIP meets the NRDC Consent Decree 
definition of a ``full attainment demonstration.'' The consent decree 
defines a ``full attainment demonstration'' as a demonstration 
according to CAA section 182(c)(2). As a whole, the attainment 
demonstration--consisting of photochemical grid modeling, adopted 
control measures, an enforceable commitment with respect to a limited 
portion of the reductions necessary to attain, and other analyses and 
documentation--is approvable since it ``provides for attainment of the 
ozone [NAAQS] by the applicable attainment date.'' See section 
182(c)(2)(A).
    Comment: One commenter raises concerns regarding the enforceability 
of New Jersey's commitments to adopt and submit the additional control 
measures to achieve additional emission reductions necessary for 
attainment. Specifically, the commenter is concerned that the lack of 
specific identified measures and specific identified emission 
reductions associated with those measures undercuts their 
enforceability. The commenter suggests that the commitments made by New 
York and New Jersey are more ``discretionary'' than the types of 
commitments that courts have enforced in the past because these state's 
commitments do not identify specific measures.
    Response: EPA believes that the CAA provides for enforcement of the 
terms of an approved SIP. See e.g., CAA 304(a)(1) and (f). Thus, in a 
case where a state commits to adopt a specific control strategy that 
will achieve a specific level of reductions by a specific date, the 
court may require the state to take action to adopt that measure and 
achieve the prescribed level of reductions. In the case, such as here, 
where the state commits to adopt and submit by a specific date measures 
to achieve a certain level of emission reductions, the court may order 
the state to adopt measures to achieve that level of reductions. Simply 
because the state retains authority regarding the precise mix of 
controls that it may adopt, does not interfere with the enforceability 
of the commitment to achieve the level of reductions necessary for 
attainment. EPA has determined that there are sufficient available 
controls to achieve the level of reduction to which the State has 
committed. This determination is supported by the recommendation of the 
OTC regarding specific controls. Thus, EPA believes that the commitment 
submitted by New Jersey is enforceable by EPA and citizens and that a 
court could order the State to adopt control measures that will achieve 
the level of reductions necessary for attainment.
    Comment: The mid course review process outlined by New Jersey is 
not a permissible substitute for a currently complete attainment 
demonstration or adopted enforceable control measures. The mid course 
review will delay final approval of the SIP until 2004, 10 years after 
the SIP was required under the CAA.
    Response: The mid course review is not intended as a replacement 
for a complete attainment demonstration or as a replacement for adopted 
control measures. Rather, it is intended to reflect the reality that 
the modeling techniques and inputs are uncertain. Thus, EPA provided in 
its modeling guidance that the progress of implementing the plan should 
be evaluated so that adjustments can be made to ensure the plan is 
successful. EPA is fully approving the attainment demonstration because 
based on the information currently available, EPA believes that it will 
provide for attainment. However, the mid course review allows the state 
and EPA an opportunity to consider additional information closer to the 
attainment date to assess whether adjustments are necessary. In the 
case of New Jersey, the State has extensive plans to fully evaluate the 
inputs to the model and the modeling itself using the most up to date 
information possible. The State will also be evaluating several new 
control measures for inclusion in the SIP. We are fully supportive of 
this continued evaluation of the science supporting the plan to reach 
attainment.

E. Adequacy of Motor Vehicle Emissions Budgets

    Comment: We received a number of comments about the process and 
substance of EPA's review of the adequacy of motor vehicle emissions 
budgets for transportation conformity purposes.
    Response: EPA's adequacy process for these SIPs has been completed, 
and we have found the motor vehicle emissions budgets in all of these 
SIPs to be adequate. We have already responded to any comments related 
to adequacy of the budgets that we are approving in this action, when 
we issued our adequacy findings. Therefore we are not listing the 
individual comments or responding to them here. All of our findings of 
adequacy and responses to comments can be accessed at www.epa.gov/otaq/traq (once there, click on the ``conformity'' button). At the web site, 
EPA regional contacts are identified.
    On September 12, 2001 (66 FR 47419), we proposed to approve the 
transportation conformity budgets for the Northern New Jersey and 
Trenton NAAs. See Table 2. We received no specific comments on New 
Jersey's budgets. In this final rule we are approving these budgets.

F. Attainment Demonstration and Rate of Progress Motor Vehicle 
Emissions Inventories

    Comment: Several commenters stated that the motor vehicle emissions 
inventory is not current, particularly with respect to the fleet mix. 
Commenters stated that the fleet mix does not accurately reflect the 
growing proportion of sport utility vehicles and gasoline trucks, which 
pollute more than conventional cars. Also, a commenter stated that EPA 
and states have not followed a consistent practice in updating SIP 
modeling to account for changes in vehicle fleets. For these reasons, 
commenters recommend disapproving the SIPs.
    Response: All of the SIPs on which we are taking final action are 
based on the most recent vehicle registration data available at the 
time the SIP was submitted. The SIPs use the same vehicle fleet 
characteristics that were used in the most recent periodic inventory 
update. New Jersey used 1999 vehicle registration data, including 
information on sports utility vehicles,

[[Page 5166]]

for modeling and inventory purposes. EPA requires the most recent 
available data to be used, but we do not require it to be updated on a 
specific schedule. Therefore, different SIPs base their fleet mix on 
different years of data. Our guidance does not suggest that SIPs should 
be disapproved on this basis. Nevertheless, we do expect that revisions 
to these SIPs that are submitted using MOBILE6 (as required in those 
cases where the SIP is relying on emissions reductions from the Tier 2 
standards) will use updated vehicle registration data appropriate for 
use with MOBILE6, whether it is updated local data or the updated 
national default data that will be part of MOBILE6.

G. VOC Emission Reductions

    Comment: For states that need additional VOC reductions, one 
commenter recommends a process to achieve these VOC emission 
reductions, which involves the use of HFC-152a (1,1 difluoroethane) as 
the blowing agent in manufacturing of polystyrene foam products such as 
food trays and egg cartons. The commenter states that HFC-152a, a 
fluorine compound, could be used instead of hydrocarbons, a known 
pollutant, as a blowing agent. Use of HFC-152a, which is classified as 
VOC exempt, would eliminate nationwide the entire 25,000 tons/year of 
VOC emissions from this industry.
    Response: EPA has met with the commenter and has discussed the 
technology described by the company to reduce VOC emissions from 
polystyrene foam blowing through the use of HFC-152a (1,1 
difluoroethane), which is a VOC exempt compound, as a blowing agent. 
Since the HFC-152a is VOC exempt, its use could result in a VOC 
reduction compared to the use of VOCs such a pentane or butane as a 
blowing agent. However, EPA has not studied this technology 
exhaustively.
    It is each state's prerogative to specify which measures it will 
adopt in order to achieve the additional VOC reductions it needs. In 
evaluating the use of HFC-152a, states may want to consider claims that 
products made with this blowing agent are comparable in quality to 
products made with other blowing agents. Also the question of the over-
all long term environmental effect of encouraging emissions of fluorine 
compounds would be relevant to consider. Using HFC-152a as a blowing 
agent is a technology which states may want to consider, but 
ultimately, the decision of whether to require this particular 
technology to achieve the necessary VOC emissions reductions must be 
made by each affected state. Finally, EPA notes that under the 
significant new alternatives policy (SNAP) program, created under CAA 
section 612, EPA has identified acceptable foam blowing agents many of 
which are not VOCs (http://www.epa.gov/ozone/title6/snap/).

H. Credit for Measures Not Fully Implemented

    Comment: States should not be given credit for measures that are 
not fully implemented. For example, the states are being given full 
credit for Federal coating, refinishing and consumer product rules that 
have been delayed or weakened.
    Response: Architectural and Industrial Maintenance (AIM) Coatings: 
On March 22, 1995 EPA issued a memorandum \8\ that provided that states 
could claim a 20 percent reduction in VOC emissions from the AIM 
coatings category in ROP and attainment plans based on the anticipated 
promulgation of a national AIM coatings rule. In developing the 
attainment and ROP SIPs for their nonattainment areas, states relied on 
this memorandum to estimate emission reductions from the anticipated 
national AIM rule. EPA promulgated the final AIM rule in September 
1998, codified at 40 CFR part 59, subpart D. In the preamble to EPA's 
final AIM coatings regulation, EPA estimated that the regulation will 
result in 20 percent reduction of nationwide VOC emissions from AIM 
coatings categories (63 FR 48855). The estimated VOC reductions from 
the final AIM rule resulted in the same level as those estimated in the 
March 1995 EPA policy memorandum. In accordance with EPA's final 
regulation, states have assumed a 20 percent reduction from AIM 
coatings source categories in their attainment and ROP plans. AIM 
coatings manufacturers were required to be in compliance with the final 
regulation within one year of promulgation, except for certain 
pesticide formulations which were given an additional year to comply. 
Thus all manufacturers were required to comply, at the latest, by 
September 2000. Industry confirmed in comments on the proposed AIM rule 
that 12 months between the issuance of the final rule and the 
compliance deadline would be sufficient to ``use up existing label 
stock'' and ``adjust inventories'' to conform to the rule. 63 FR 48848 
(September 11, 1998). In addition, EPA determined that, after the 
compliance date, the volume of nonconforming products would be very low 
(less than one percent) and would be withdrawn from retail shelves 
anyway. Therefore, EPA believes that compliant coatings were in use by 
the Fall of 1999 with full reductions to be achieved by September 2000 
and that it was appropriate for the states to take credit for a 20 
percent emission reduction in their SIPs.
---------------------------------------------------------------------------

    \8\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rules,'' March 22, 1995, from John S. Seitz, Director, 
Office of Air Quality Planning and Standards to Air Division 
Directors, Regions I-X.
---------------------------------------------------------------------------

    Autobody Refinish Coatings Rule: Consistent with a November 27, 
1994 EPA policy,\9\ many states claimed a 37 percent reduction from 
this source category based on a proposed rule. However, EPA's final 
rule, ``National Volatile Organic Compound Emission Standards for 
Automobile Refinish Coatings,'' published on September 11, 1998 (63 FR 
48806), did not regulate lacquer topcoats and will result in a smaller 
emission reduction of around 33 percent overall nationwide.
---------------------------------------------------------------------------

    \9\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rule and the Autobody Refinishing Rule,'' 11/29/94, John S. 
Seitz, Director OAQPS, to Air Division Directors, Regions I-X.
---------------------------------------------------------------------------

    The 37 percent emission reduction from EPA's proposed rule was an 
estimate of the total nationwide emission reduction. Since this number 
is an overall national average, the actual reduction achieved in any 
particular area could vary depending on the level of control which 
already existed in the area. For example, in California the reduction 
from the national rule is zero because California's rules are more 
stringent than the national rule. In the proposed rule, the estimated 
percentage reduction for areas that were unregulated before the 
national rule was about 40 percent. However as a result of the lacquer 
topcoat exemption added between proposal and final rule, the reduction 
is now estimated to be 36 percent for previously unregulated areas. 
Thus, most previously unregulated areas will need to make up the 
approximately one percent difference between the 37 percent estimate of 
reductions assumed by states, following EPA guidance based on the 
proposal, and the 36 percent reduction actually achieved by the final 
rule for previously unregulated areas.
    EPA's best estimate of the reduction potential of the final rule 
was spelled out in a September 19, 1996 memorandum entitled ``Emissions 
Calculations for the Automobile Refinish Coatings Final Rule'' from 
Mark Morris to Docket No. A-95-18.

[[Page 5167]]

    Consumer Products Rule: Consistent with a June 22, 1995 EPA 
guidance,\10\ states claimed a 20 percent reduction from this source 
category based on EPA's proposed rule. The final rule, ``National 
Volatile Organic Compound Emission Standards for Consumer Products,'' 
(63 FR 48819), published on September 11, 1998, has resulted in a 20 
percent reduction after the December 10, 1998 compliance date. 
Moreover, these reductions largely occurred by the Fall of 1999. In the 
Consumer Products rule, EPA determined and the consumer products 
industry concurred, that a significant proportion of subject products 
have been reformulated in response to state regulations and in 
anticipation of the final rule (63 FR 48819). That is, industry 
reformulated the products covered by the consumer products rule in 
advance of the final rule. Therefore, EPA believes that complying 
products in accordance with the rule were in use by the Fall of 1999. 
It was appropriate for the states to take credit for a 20 percent 
emission reduction for the consumer products rule in their SIPs.
---------------------------------------------------------------------------

    \10\ ``Regulatory Schedule for Consumer and Commercial Products 
under section 183(e) of the Clean Air Act,'' June 22, 1995, John S. 
Seitz, Director OAQPS, to Air Division Directors, Regions I-X.
---------------------------------------------------------------------------

I. Enforcement of Control Programs

    Comment: The attainment demonstrations do not clearly set out 
programs for enforcement of the various control strategies relied on 
for emission reduction credit.
    Response: In general, state enforcement, personnel and funding 
program elements are contained in SIP revisions previously approved by 
EPA under obligations set forth in section 110(a)(2)(c) of the CAA. 
Once approved by EPA, there is no need for states to re-adopt and 
resubmit these programs with each and every SIP revision generally 
required by other sections of the CAA. In addition, emission control 
regulations will also contain specific enforcement mechanisms, such as 
record keeping and reporting requirements, and may also provide for 
periodic state inspections and reviews of the affected sources. EPA's 
review of these regulations includes review of the enforceability of 
the regulations. Rules that are not enforceable are generally not 
approved by the EPA. To the extent that the ozone attainment 
demonstration depends on specific state emission control regulations, 
these individual regulations have undergone review by the EPA in past 
approval actions.

J. MOBILE6 and Motor Vehicle Emissions Budgets (MVEBS)

    Comment: One commenter generally supports a policy of requiring 
motor vehicle emissions budgets to be recalculated when revised MOBILE6 
models are released.
    Response: The attainment demonstrations that rely on Tier 2 
emission reduction credit contain commitments to revise the motor 
vehicle emissions budgets after MOBILE6 is released.
    Comment: The revised budgets calculated using MOBILE6 will likely 
be submitted after the MOBILE5 budgets have already been approved. 
EPA's policy is that submitted SIPs may not replace approved SIPs.
    Response: This is the reason that EPA proposed in the July 28, 
2000, a supplemental notice (65 FR 46383) that the approval of the 
MOBILE5 budgets for conformity purposes would last only until MOBILE6 
budgets had been submitted and found adequate. In this way, the MOBILE6 
budgets can apply for conformity purposes as soon as they are found 
adequate.
    Comment: If a state submits additional control measures that affect 
the motor vehicle emissions budget, but does not submit a revised motor 
vehicle emissions budget, EPA should not approve the attainment 
demonstration.
    Response: EPA agrees. The motor vehicle emissions budgets in the 
Northern New Jersey and Trenton attainment demonstrations reflect the 
motor vehicle control measures in the attainment demonstrations. In 
addition, New Jersey has committed to submit new budgets as a revision 
to the attainment SIP consistent with any new measures submitted to 
fill any shortfall, if the additional control measures affect on-road 
motor vehicle emissions.
    Comment: EPA should make it clear that the motor vehicle emissions 
budgets to be used for conformity purposes will be determined from the 
total motor vehicle emissions reductions required in the SIP, even if 
the SIP does not explicitly quantify a revised motor vehicle emissions 
budget.
    Response: EPA will not approve SIPs without motor vehicle emissions 
budgets that are explicitly quantified for conformity purposes. The 
Northern New Jersey and Trenton attainment demonstrations contain 
explicitly quantified motor vehicle emissions budgets.
    Comment: If a state fails to follow through on its commitment to 
submit the revised motor vehicle emissions budgets using MOBILE6, EPA 
could make a finding of failure to submit a portion of a SIP, which 
would trigger a sanctions clock under section 179.
    Response: If a state fails to meet its commitment, EPA could make a 
finding of failure to implement the SIP, which would start a sanctions 
clock under section 179 of the CAA.
    Comment: If the budgets recalculated using MOBILE6 are larger than 
the MOBILE5 budgets, then attainment should be demonstrated again.
    Response: As EPA proposed in its December 16, 1999 notices, we will 
work with states on a case-by-case basis if the new emissions estimates 
raise issues about the sufficiency of the attainment demonstration.
    Comment: If the MOBILE6 budgets are smaller than the MOBILE5 
budgets, the difference between the budgets should not be available for 
reallocation to other sources unless air quality data show that the 
area is attaining, and a revised attainment demonstration is submitted 
that demonstrates that the increased emissions are consistent with 
attainment and maintenance. Similarly, the MOBILE5 budgets should not 
be retained (while MOBILE6 is being used for conformity demonstrations) 
unless the above conditions are met.
    Response: EPA agrees that if recalculation using MOBILE6 shows 
lower motor vehicle emissions than MOBILE5, then these motor vehicle 
emission reductions cannot be reallocated to other sources or assigned 
to the motor vehicle emissions budget as a safety margin unless the 
area reassesses the analysis in its attainment demonstration and shows 
that it will still attain. In other words, the area must assess how its 
original attainment demonstration is impacted by using MOBILE6 versus 
MOBILE5 before it reallocates any apparent motor vehicle emission 
reductions resulting from the use of MOBILE6. In addition, New Jersey 
will be submitting new budgets based on MOBILE6, so the MOBILE5 budgets 
will not be retained in the SIP indefinitely.

K. MOBILE6 Grace Period

    Comment: We received a comment on whether the grace period before 
MOBILE6 is required in conformity determinations will be consistent 
with the schedules for revising SIP motor vehicle emissions budgets 
within 1 or 2 years of MOBILE6's release.
    Response: This comment is not germane to this rulemaking, since the 
MOBILE6 grace period for conformity determinations is not explicitly 
tied to EPA's SIP policy and approvals. However, EPA understands that a 
longer grace period would allow some areas to better transition to new 
MOBILE6

[[Page 5168]]

budgets. EPA is considering the maximum 2-year grace period allowed by 
the conformity rule, and EPA will address this in the future when the 
final MOBILE6 emissions model and policy guidance is released.
    Comment: One commenter asked EPA to clarify in the final rule 
whether MOBILE6 will be required for conformity determinations once new 
MOBILE6 budgets are submitted and found adequate.
    Response: This comment is not germane to this rulemaking. However, 
it is important to note that EPA intends to clarify its policy for 
implementing MOBILE6 in conformity determinations when the final 
MOBILE6 model is released. EPA believes that MOBILE6 should be used in 
conformity determinations once new MOBILE6 budgets are found adequate.

L. Two-Year Option To Revise the MVEBs

    Comment: One commenter did not prefer the additional option for a 
second year before the state has to revise the conformity budgets with 
MOBILE6, since new conformity determinations and new transportation 
projects could be delayed in the second year.
    Response: EPA proposed the additional option to provide further 
flexibility in managing MOBILE6 budget revisions. The supplemental 
proposal did not change the original option to revise budgets within 
one year of MOBILE6's release. State and local governments can continue 
to use the 1-year option, if desired, or submit a new commitment 
consistent with the alternative 2-year option. EPA expects that state 
and local agencies have consulted on which option is appropriate and 
have considered the impact on future conformity determinations. New 
Jersey has committed to revise its budgets within one-year of MOBILE6's 
release.

M. Measures for the 1-Hour NAAQS and for Progress Toward 8-Hour NAAQS

    Comment: One commenter notes that EPA has been working toward 
promulgation of a revised 8-hour ozone National Ambient Air Quality 
Standard (NAAQS) because the Administrator deemed attaining the 1-hour 
ozone NAAQS is not adequate to protect public health. Therefore, EPA 
must ensure that measures be implemented now that will be sufficient to 
meet the 1-hour standard and that make as much progress toward 
implementing the 8-hour ozone standard as the requirements of the CAA 
and implementing regulations allow.
    Response: The 1-hour standard remains in effect for all of these 
areas and the SIPs that have been submitted are for the purpose of 
achieving that the 1-hour ozone NAAQS. Congress has provided the states 
with the authority to choose the measures necessary to attain the NAAQS 
and EPA cannot second guess the states' choice if EPA determines that 
the SIP meets the requirements of the CAA. EPA believes that the SIPs 
for the severe areas meet the requirements for attainment 
demonstrations for the 1-hour standard and thus, could not disapprove 
them even if EPA believed other control requirements might be more 
effective for attaining the 8-hour standard. However, EPA generally 
believes that emission controls implemented to attain the 1-hour ozone 
standard will be beneficial towards attainment of the 8-hour ozone 
standard as well. This is particularly true regarding the 
implementation of NOX emission controls resulting from EPA's 
NOX SIP Call. Finally, EPA notes that although the 8-hour 
ozone standard has been adopted by the EPA, implementation of this 
standard has been delayed while certain aspects of the standard remain 
before the United States Circuit Court of Appeals. The states and the 
EPA have yet to define the 8-hour ozone nonattainment areas and the EPA 
has yet to issue guidance and requirements for the implementation of 
the 8-hour ozone standard.

N. Attainment and Post 1999 Reasonable Further Progress Demonstrations

    Comment: One commenter claims that the plans fail to demonstrate 
emission reductions of 3 percent per year over each 3-year period 
between November 1999 and November 2002; and November 2002 and November 
2005; and the 2-year period between November 2005 and November 2007, as 
required by 42 U.S.C. section 7511a(c)(2)(B). The states have not even 
attempted to demonstrate compliance with these requirements, and EPA 
has not proposed to find that they have been met.
    The EPA has absolutely no authority to waive the statutory mandate 
for 3 percent annual reductions. The statute does not allow EPA to use 
the NOX SIP Call or 126 orders as an excuse for waiving ROP 
deadlines. The statutory ROP requirement is for emission reductions--
not ambient reductions. Emission reductions in upwind states do not 
waive the statutory requirement for 3 percent annual emission 
reductions within the downwind nonattainment area.
    Response: Under no condition is EPA waiving the statutory 
requirement for 3 percent annual emission reductions. For many areas, 
EPA did not propose approval of the post-99 RFP demonstrations at the 
same time as EPA proposed action on the area's attainment 
demonstration. New Jersey submitted its Post-99 RFP Plans on April 11, 
2001 and EPA proposed approval on September 12, 2001 (66 FR 47419). EPA 
is approving the RFP Plans as part of this action. Moreover, EPA has 
not provided that area's may rely on upwind reductions for purposes of 
meeting the ROP requirements. Rather, states, including New Jersey, are 
relying on in-state NOX and VOC measures to meet the ROP 
requirement.

IV. Conclusion

    As described above, EPA does not believe any of the comments we 
received on the proposals published for the attainment demonstrations 
for the New Jersey portions of the Northern New Jersey and the Trenton 
ozone NAAs should affect EPA's determination that the SIP is fully 
approvable as meeting the attainment demonstration requirements of 
sections 182(c)(2) and (d) of the CAA. EPA is approving several SIP 
revisions that relate to attainment of the one-hour ozone standard in 
New Jersey. The SIP revisions include New Jersey's one-hour ozone 
attainment demonstrations for the state's portions of the Northern New 
Jersey and the Trenton NAAs, all of the enforceable commitments, a RACM 
analysis, 1996 periodic emission inventory, 2002, 2005 and 2007 ozone 
projection year emission inventories, 2002, 2005 and 2007 RFP Plans, 
and ozone contingency measures.
    New Jersey's one-hour ozone attainment demonstrations include 2005 
and 2007 motor vehicle emissions budgets for the Trenton and Northern 
New Jersey NAAs, respectively. EPA is approving these attainment 
budgets until new budgets using MOBILE6 are submitted and found 
adequate. Similarly, if new mobile source measures are submitted to 
fill the shortfall, the revised budgets will apply after they are 
submitted and found adequate. Also, EPA is approving the motor vehicle 
emissions budgets for 2002 and 2005 contained in New Jersey's RFP plans 
for transportation conformity purposes.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For

[[Page 5169]]

this reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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 
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. 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. 
section 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 April 5, 2002. 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, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: January 14, 2002.
Jane M. Kenny,
Regional Administrator, Region 2.

    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 et seq.

Subpart FF--New Jersey

    2. Section 52.1582 is amended by adding new paragraph (h) to read 
as follows:


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

* * * * *
    (h)(1) The statewide 1996 periodic emission inventory included in 
New Jersey's April 11, 2001 State Implementation Plan revision is 
approved.
    (2) The 2002 and 2005 ozone projection year emission inventories 
for the New Jersey portion of the Philadelphia/Wilmington/Trenton 
nonattainment area and the 2002, 2005 and 2007 ozone projection year 
emission inventories for the New Jersey portion of the New York/
Northern New Jersey/Long Island nonattainment area included in New 
Jersey's April 11, 2001 State Implementation Plan revision are 
approved.
    (3) The 2002 and 2005 Reasonable Further Progress Plans for the New 
Jersey portion of the Philadelphia/Wilmington/Trenton nonattainment 
area and the 2002, 2005 and 2007 Reasonable Further Progress Plans for 
the New Jersey portion of the New York/Northern New Jersey/Long Island 
nonattainment area included in New Jersey's April 11, 2001 State 
Implementation Plan revision are approved.
    (4) The contingency measures for the New Jersey portions of the 
Philadelphia/Wilmington/Trenton nonattainment area and the New York/
Northern New Jersey/Long Island nonattainment area included in New 
Jersey's April 11, 2001 State Implementation Plan revision are 
approved.
    (5) The 2002 and 2005 conformity emission budgets for the New 
Jersey portion of the Philadelphia/Wilmington/Trenton nonattainment 
area and the 2002, 2005 and 2007 conformity emission budgets for the 
New Jersey portion of the New York/Northern New Jersey/Long Island 
nonattainment area included in New Jersey's April 11, 2001 State 
Implementation Plan revision are approved. The 2005 and 2007 attainment 
year budgets are only approved until such time as New Jersey submits 
revised budgets consistent with its commitments to revise the budgets 
with respect to MOBILE6 and additional measures and EPA finds those 
revised budgets adequate.
    (6) The Reasonably Available Control Measure Analysis for the New 
Jersey portion of the Philadelphia/

[[Page 5170]]

Wilmington/Trenton and New York-Northern New Jersey-Long Island 
nonattainment areas included in New Jersey's October 16, 2001 State 
Implementation Plan revision is approved.
    (7) The revisions to the State Implementation Plan submitted by New 
Jersey on August 31, 1998, October 16, 1998, and April 26, 2000 are 
approved. The revisions are for the purpose of satisfying the 
attainment demonstration requirements of section 182(c)(2)(A) of the 
Clean Air Act for the New Jersey portions of the Philadelphia/
Wilmington/Trenton and New York-Northern New Jersey-Long Island severe 
ozone nonattainment areas. The revisions establish attainment dates of 
November 15, 2005 for the Philadelphia/Wilmington/Trenton nonattainment 
area and November 15, 2007 for the New York-Northern New Jersey-Long 
Island ozone nonattainment area. The revisions include the enforceable 
commitments for future actions associated with attainment of the 1-hour 
ozone national ambient air quality:
    (i) To adopt additional control measures by October 31, 2001 to 
meet the level of reductions identified by EPA for attainment of the 1-
hour ozone standard;
    (ii) To submit revised State Implementation Plan and motor vehicle 
emissions budgets by October 31, 2001 if additional adopted measures 
affect the motor vehicle emissions inventory;
    (iii) To revise State Implementation Plan and attainment year motor 
vehicle emissions budgets within one year after the MOBILE6 mobile 
emissions model is released;
    (iv) To perform a mid-course review and submit the results to EPA 
by December 31, 2003.
[FR Doc. 02-1753 Filed 2-1-02; 8:45 am]
BILLING CODE 6560-50-P