[Federal Register Volume 69, Number 103 (Thursday, May 27, 2004)]
[Proposed Rules]
[Pages 30249-30252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12018]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. RO2-OAR-2004-NJ-0001, FRL-7667-7]


Finding of Failure To Implement a State Implementation Plan; New 
Jersey Portions of the New York--Northern New Jersey--Long Island and 
Philadelphia--Wilmington--Trenton Nonattainment Areas; Ozone

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to find 
that New Jersey has not fully implemented the 1-hour Ozone State 
Implementation Plan that EPA approved for two nonattainment areas, the 
New Jersey portions of the New York--Northern New Jersey--Long Island 
nonattainment area and the Philadelphia--Wilmington--Trenton 
nonattainment area. If EPA finalizes this proposed determination, New 
Jersey will be required to correct the identified deficiencies within 
18 months of a final determination, or the first set of sanctions will 
be imposed pursuant to sections 179(a) and (b) of the Clean Air Act and 
40 CFR 52.31.

DATES: Comments must be received on or before June 28, 2004.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2004-NJ-0001 by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material 
in EDocket (RME), EPA's electronic public docket and comment system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    3. E-mail: [email protected].
    4. Fax: (212) 637-3901.
    5. Mail: ``RME ID Number R02-OAR-2004-NJ-0001'', Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    6. Hand Delivery or Courier. Deliver your comments to: Raymond 
Werner, Chief, Air Programs Branch, Environmental Protection Agency, 
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.
    Instructions: Direct your comments to Regional Material in EDocket 
(RME) ID Number R02-OAR-2004-NJ-0001. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://docket.epa.gov/rmepub/, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI or otherwise protected 
through Regional Material in EDocket (RME), regulations.gov, or e-mail. 
The EPA RME Web site and the federal regulations.gov Web site are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in hard copy at the Air 
Programs Branch, Environmental Protection

[[Page 30250]]

Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 
10007-1866. EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3711 or [email protected].

SUPPLEMENTARY INFORMATION:

I. What Is Required by the Clean Air Act of Areas Classified as 
Nonattainment for Ozone and How Do These Requirements Apply to New 
Jersey?

    Section 182 of the Clean Air Act (Act) identifies specific 
requirements for State Implementation Plans (SIP) for areas classified 
as nonattainment for the 1-hour ozone standard. Section 182 also 
establishes schedules for submission of SIP revisions to EPA by the 
states. The specific requirements and deadlines vary depending upon the 
severity of the ozone problem. This action applies to the New Jersey 
portion 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 area and the Trenton ozone 
area. The counties located within the Northern New Jersey area are: 
Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, 
Passaic, Somerset, Sussex, and Union. The counties within the Trenton 
area are: Burlington, Camden, Cumberland, Gloucester, Mercer, and 
Salem. Under section 182(c)(2) and (d) of the Act, states with severe 
nonattainment areas were required to submit by November 15, 1994 
demonstrations of how the areas would attain the 1-hour standard. In 
addition, states needed to demonstrate how they would achieve 
reductions in volatile organic compound (VOC) emissions of nine percent 
for each three-year period until the attainment year, this latter 
requirement is called the rate-of-progress plan. In some cases, oxides 
of nitrogen (NOX) emission reductions can be substituted for 
the required VOC emission reductions.
    States are required to develop any additional measures to further 
reduce emissions that are required to attain the air quality standard 
by the attainment deadlines specified in the Act. On December 16, 1999 
(64 FR 70380), EPA proposed approval of New Jersey's SIP demonstrating 
attainment of the 1-hour ozone standard for the two nonattainment 
areas, if, among other things, the State submitted an enforceable 
commitment to adopt additional control measures to fill an emission 
reduction shortfall identified by EPA in its review. To assist several 
states, including New Jersey, in developing additional emission control 
strategies, the Ozone Transport Commission (OTC) developed model rules 
to control emissions from six types of sources and estimated emission 
reduction benefits that would be achieved from implementing these model 
rules. These model rules are commonly referred to as the Ozone 
Transport Commission measures, or OTC measures. These model rules were 
designed for use by states in developing their own regulations to 
achieve the additional VOC and NOX emission reductions 
needed to eliminate these shortfalls.
    On February 4, 2002 (67 FR 5152), EPA approved New Jersey's 1-hour 
ozone attainment demonstration SIP. This approval was based, in part, 
on enforceable commitments made by New Jersey in a SIP revision dated 
April 26, 2000. New Jersey committed to adopt additional control 
measures by October 31, 2001, to close the shortfalls in emission 
reductions identified by EPA. New Jersey indicated, as part of its 
commitment, that it expected the additional emission reductions would 
be achieved by adopting measures recommended during the OTC process 
which was completed on March 31, 2001.
    In a letter dated December 11, 2001, New Jersey provided an update 
on the rulemaking schedule, which was to be published in the New Jersey 
Register, that included the six OTC measures. Based on this 
information, EPA proceeded with a final rulemaking approval of New 
Jersey's 1-hour ozone attainment demonstration SIP even after New 
Jersey missed the October 31, 2001 deadline, because at that time, EPA 
determined New Jersey was making sufficient progress to support 
approval of the commitment.

II. What Portion of the Approved SIP Is EPA Finding New Jersey Is Not 
Fully Implementing?

    While New Jersey has made progress in implementing its ozone SIP, 
the State has missed the deadline to adopt and submit the additional 
control measures necessary to meet the emission reduction shortfall. 
The State indicated in its September 12, 2001 SIP revision, that the 
six OTC measures would result in sufficient emission reductions to meet 
the EPA identified emission shortfalls. To date, four control measures 
have been adopted and submitted as SIP revisions, but are insufficient 
by themselves to provide the emission reductions needed to attain the 
one hour ozone standard. Consequently, EPA is proposing to find that 
New Jersey is not fully implementing its approved attainment 
demonstration SIP because it has not met its commitment to adopt 
additional control measures, by October 31, 2001, which are needed to 
attain the 1-hour ozone standard.

III. What Are the Consequences if EPA Makes Final This Proposed Finding 
of Failure To Implement?

    Under the authority of section 179(a)(4) of the Act, if EPA makes a 
finding that provisions of an approved plan are not being implemented, 
then the deficiencies identified in the finding must be corrected 
within 18 months of the final finding or sanctions will begin to apply. 
There are two types of sanctions: Highway Sanctions (section 179(b)(1)) 
and Offset Sanctions (section 179(b)(2)).
    EPA promulgated, at 40 CFR part 52, regulations to implement the 
sanction requirements of section 179 of the Act. 40 CFR 52.31(d)(1) 
provides that the offset sanction apply when a state has not corrected 
the deficiencies identified in the finding within 18 months of the 
effective date of the final finding. This sanction requires any entity 
or individual that is subject to nonattainment new source review and is 
constructing a new facility or modifying an existing facility over a 
certain size to reduce emissions in the area in which it is located by 
two tons for every one ton of VOC and/or NOX that the new/
modified facility will emit.
    The current offset ratio in the two New Jersey nonattainment areas 
for VOC and NOX is 1.3 to 1. If EPA takes final action 
making a finding of failure to implement and New Jersey has not 
corrected the deficiencies identified in the final finding within 18 
months of the effective date of that finding, then the 2 to 1 offset 
sanction will apply in the Northern New Jersey ozone area and the 
Trenton ozone area.
    40 CFR 52.31(d)(1) further provides that the section 179(b)(2) 
highway sanction will apply if New Jersey does not correct the 
deficiencies identified in the finding within six months after the 
offset sanction is imposed. This sanction prohibits the U.S. Department

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of Transportation from approving or funding all but a few specific 
types of transportation projects.
    The sanctions time clock will be stopped or imposed sanctions 
lifted only if EPA determines, after an opportunity for public comment, 
that the deficiencies which resulted in today's failure to implement 
finding have been corrected. The time clock may be stayed or the 
imposition of sanctions may be deferred based on a proposed 
determination that the State has corrected the implementation 
deficiencies (40 CFR 52.31(d)(4)). EPA will be working with New Jersey 
to correct this deficiency as quickly as possibly to ensure that 
sanctions need not be imposed.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
No information is required to be collected, EPA is just proposing to 
find that the State is not fully implementing its approved SIP. Burden 
means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers for EPA's regulations in 40 CFR 
are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that is 
based on SBA size standards; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. The 
sanctions provided for pursuant to section 179(b) for failure to 
implement under section 110 apply only to new or modified major 
stationary sources subject to section 173 of the Clean Air Act.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by state and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, because it 
does not establish any new requirement with which the state must comply 
nor does it alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Rather, consistent 
with the Clean Air Act requirements, this action proposes that the 
state is not complying with provisions already approved in the SIP. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

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F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications. It will not have substantial direct effects 
on tribal governments, 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 in Executive Order 13175, entitled ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 6, 
2000). Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The VCS are inapplicable to this action. Today's action does not 
require the public to perform activities conducive to the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: May 17, 2004.
Jane M. Kenny,
Regional Administrator, Region 2.
[FR Doc. 04-12018 Filed 5-26-04; 8:45 am]
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