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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

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

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; State of New Jersey;

Revised Policy Regarding Applicability of Oxygenated Fuels Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On September 28, 1995, the New Jersey Department of

Environmental Protection (NJDEP) submitted requests to redesignate the

Camden County nonattainment area and nine not-classified areas from

nonattainment to attainment for carbon monoxide (CO). NJDEP also

submitted the required plans to assure continued attainment of the CO

standards in the redesignated areas. On December 7, 1995, EPA published

a direct final rulemaking (60 FR 62741) approving New Jersey's

redesignation requests along with several elements of the New Jersey

State Implementation Plan (SIP) for CO.

This action announced that the rulemaking would take effect on

February 5, 1996 (60 days after publication), unless EPA received

adverse comments by January 8, 1996 (30 days after publication), in

response to a notice of proposed rulemaking published on the same day

(60 FR 62792). EPA also committed to withdraw the direct final rule in

the event that it received adverse comments, and to respond to any

adverse comments in a subsequent final rulemaking action. EPA did

receive adverse comments on this action, but failed to withdraw the

final rule within the 60 days given in the notice of direct final

rulemaking. Therefore, the rule took effect on February 5, 1996.

[[Page 33679]]

EPA is responding to the comments it received; but, for the

following reasons, EPA is not changing the final rule in response to

those comments. Had EPA withdrawn the direct final rule prior to its

going into effect, EPA would have taken final action based on the

proposal to promulgate a rule identical to the direct final rule that

went into effect. Rather than now take the action of withdrawing the

direct final rule only to repromulgate simultaneously an identical

rule, in this action EPA is deciding to maintain the rule unchanged.

EPA believes that withdrawal and repromulgation are unnecessary since

the results would be identical to that obtained simply by leaving the

rule unchanged and responding to the comments.

This action provides interested parties an opportunity to review

how EPA addressed the comments and to petition for judicial review of

EPA's action in this final rulemaking within 60 days of this

publication, as provided in section 307(b)(1) of the Clean Air Act.

EFFECTIVE DATES: February 5, 1996.

ADDRESSES: Copies of the State submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

290 Broadway, 20th Floor, New York, New York 10007-1866

New Jersey Department of Environmental Protection, Office of Energy,

Bureau of Air Quality Planning, 401 East State Street, CN027, Trenton,

New Jersey 08625

Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, SW, Washington, DC

20460

FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs

Branch, Environmental Protection Agency, Region II Office, 290

Broadway, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

Camden County, which is in the Philadelphia-Wilmington-Trenton

Consolidated Metropolitan Statistical Area (CMSA), was designated

nonattainment for CO under the provisions of sections 186 and 187 of

the Clean Air Act. Because the area had a design value of 11.6 parts

per million based on 1988 and 1989 data, the area was classified

moderate. (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30,

1992), codified at 40 CFR part 81, Sec. 81.331.) This design value was

based on ambient CO data recorded in the City of Philadelphia. For

moderate CO nonattainment areas, the Clean Air Act requires that air

quality must attain the National Ambient Air Quality Standard (NAAQS)

by December 31, 1995. The last exceedance of the CO NAAQS in Camden

County occurred in 1989.

In addition, nine areas were designated as not-classified

nonattainment under section 107(d)(1)(C) of the Clean Air Act. Three of

these not-classified areas, the City of Trenton, the City of Burlington

and the Borough of Penns Grove (part), are located within the

Philadelphia-Wilmington-Trenton CMSA. Five of the not-classified areas,

the Borough of Freehold, the City of Morristown, the City of Perth

Amboy, the City of Toms River and the Borough of Somerville, are

located in the New York-Northern New Jersey-Long Island CMSA. The

remaining not-classified area is the City of Atlantic City, which is

not contained within a CMSA. Atlantic City is part of the Atlantic City

MSA. The oxygenated gasoline requirements applicable to each of these

areas depend upon its location in the State. These requirements are

discussed in a December 7, 1995 direct final notice (60 FR 62741).

The nine areas were considered ``not-classified'' because they

previously had been designated nonattainment; however, air quality data

collected during the period 1988 and 1989 showed that the NAAQS were

met or data were not available. In those instances where air quality

was no longer being monitored, concentrations measured in prior years

had been well below the CO NAAQS.

In an effort to comply with the Clean Air Act and to ensure

continued attainment of the NAAQS, on September 28, 1995, the State of

New Jersey submitted CO redesignation requests and maintenance plans

for Camden County and the nine not-classified areas. This submittal

contained evidence that public hearings were held on September 8, 1995.

EPA published a direct final notice (60 FR 62741) and a proposed

notice (60 FR 62792) on December 7, 1995. Since comments were received

which needed addressing, EPA is addressing these comments at this time.

The reader is referred to the direct final notice for a detailed

discussion of EPA's action.

II. Comments

EPA received comments from The New York Mercantile Exchange (NYMEX)

and the New York State Department of Environmental Conservation

(NYSDEC) on the December 7, 1995 notice. EPA's response to the comments

is contained in a Technical Support Document entitled ``New Jersey

Carbon Monoxide Redesignation Request For Camden County & Nine Not-

Classified Areas Technical Support Document (TSD); October 16, 1995;

Amended March 7, 1996'' found in Docket No. 146.

EPA does not believe that any of the comments present reasons why

the Agency should not proceed with its proposed action, and the Agency

is confident that New Jersey's redesignation request is technically

sound. Therefore, EPA reaffirms its redesignation of Camden County and

the nine not-classified areas in New Jersey to attainment of the CO

NAAQS.

III. Summary

EPA is approving the Camden County and nine not-classified CO

maintenance plans because they meet the requirements set forth in

section 175A of the Clean Air Act. In addition, the Agency is approving

the requests for redesignating Camden County and the nine not-

classified areas to attainment because the State has demonstrated

compliance with the requirements of section 107(d)(3)(E) of the Act for

redesignation.

In the December 7, 1995 notice EPA also took action on the

contingency measures and statewide emissions inventory found in the New

Jersey CO SIP. The contingency measures include transportation control

measures which cover traffic flow improvements, park & ride lots, and

increased ridesharing. EPA received no comments on these SIP elements.

The State has demonstrated to EPA's satisfaction that Camden County

and the nine not-classified areas had attained the CO standard before

the implementation of the oxygenated gasoline program and that as a

result the oxygenated gasoline program was not needed to attain or

maintain the CO standard. Therefore, EPA finds that the oxygenated

gasoline program is not required in these areas in order to meet the

criteria for redesignation.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603

[[Page 33680]]

and 604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and Subchapter I, Part D of the

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moveover, due to the nature of the federal-state relationship

under the Clean Air Act, preparation of a regulatory flexibility

analysis would constitute federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v US

EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a federal mandate that may result in

estimated annual costs of $100 million or more to the private sector,

or to state, local, or tribal governments in the aggregate.

Through submission of this SIP or plan revision, the state and any

affected local or tribal governments have elected to adopt the program

provided for under sections 110 and 187 of the Clean Air Act. These

rules may bind state, local and tribal governments to perform certain

actions and also require the private sector to perform certain duties.

To the extent that the rules being approved by this action would impose

any mandate upon the state, local or tribal governments either as the

owner or operator of a source or as a regulator, or would impose any

mandate upon the private sector, EPA's action will impose no new

requirements; such sources are already subject to these regulations

under State law. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

EPA has also determined that this final action does not include a

mandate that may result in estimated annual costs of $100 million or

more to state, local, or tribal governments in the aggregate or to the

private sector.

Under 5 U.S.C. section 605(b), I certify that redesignations do not

have a significant economic impact on a substantial number of small

entities. (See 46 FR 8709.)

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this rule must be filed in the United States Court

of Appeals for the appropriate circuit within 60 days from date of

publication. Filing a petition for reconsideration by the Administrator

of this final rule does not affect the finality of this rule for the

purposes of judicial review nor does it extend the time within which a

petition for judicial review may be filed and shall not postpone the

effectiveness of such rule or action. This rule may not be challenged

later in proceedings to enforce its requirements. (See 307(b)(2).)

List of Subjects 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations.

40 CFR Part 81

Air pollution control, National parks, and Wilderness areas.

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

Dated: May 31, 1996.

William J. Muszynski,

Acting Regional Administrator.

[FR Doc. 96-16158 Filed 6-27-96; 8:45 am]

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