Approval and Promulgation of Implementation Plans; Carbon Monoxide State Implementation Plan Revision State of New Jersey

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 148, NJ25-1-7282; FRL-5409-4]

Approval and Promulgation of Implementation Plans; Carbon

Monoxide State Implementation Plan Revision State of New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is giving a limited approval to part of a request from New

Jersey to revise its State Implementation Plan (SIP) for the control of

carbon monoxide (CO) to incorporate New Jersey's oxygenated gasoline

program. New Jersey submitted these revisions in response to

requirements established under the Clean Air Act, as amended in 1990.

EPA is approving New Jersey's oxygenated gasoline program for the

Northern New Jersey portion of the New York-Northern New Jersey-Long

Island consolidated metropolitan statistical area (CMSA) as the program

applies for the four months from November 1 through the last day of

February. In previous proposals for the States of New York and

Connecticut, EPA has proposed to determine that those four months are

the entire period when the New York-Northern New Jersey-Long Island

CMSA is prone to high ambient concentrations of CO. In a separate

document published in today's Federal Register, EPA is soliciting

comment on this determination for the limited purpose of inviting

comment on additional information concerning emission modeling related

to New Jersey's portion of the multi-state CMSA.

EFFECTIVE DATE: This final rule is effective on March 13, 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, Library, 290

Broadway, 16th 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

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

Branch, Environmental Protection Agency, Region II Office, 290

Broadway, 20th Floor, New York, New York 10007-1866 (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Background

Motor vehicles are significant contributors of CO emissions, which

are harmful to human health. An important measure toward reducing these

emissions is the use of cleaner-burning oxygenated gasoline. Extra

oxygen in the fuel enhances fuel combustion and helps to offset fuel-

rich operating conditions, particularly during vehicle starting in cold

weather.

The Clean Air Act (Act) sets forth a number of requirements for

states with areas designated as nonattainment for the National Ambient

Air Quality Standards (NAAQS) set for CO to submit revisions to their

State Implementation Plans (SIPs). Among these is a requirement under

section 211(m) that states with CO nonattainment areas at or above a

9.5 parts per million (ppm) design value implement 2.7 percent

oxygenated gasoline programs by November 1, 1992 and submit these

programs as SIP revisions. This requirement applies to New Jersey

because the State contains a portion of the New York-Northern New

Jersey-Long Island nonattainment area, which has a design value for CO

above 9.5 ppm. The requirement had also originally applied to Southern

New Jersey as well; however, that area, which is part of the

Philadelphia CO nonattainment area, is currently in attainment for CO

and, as such, is no longer required to implement an oxygenated gasoline

program. 60 FR 62741, December 7, 1995. The New York-Northern New

Jersey-Long Island CO nonattainment area is part of the New York-

Northern New Jersey-Long Island Consolidated Metropolitan Statistical

Area (CMSA) and includes the New Jersey Counties of Bergen, Essex,

Hudson, Union, and parts of Passaic. The nonattainment area in Passaic

County includes the Cities of Clifton, Paterson, and Passaic. New

Jersey's portion of the larger CMSA, within which oxygenated fuel sale

is required, consists of the following counties: Bergen, Essex, Hudson,

Hunterdon, Middlesex, Ocean, Passaic, Somerset, Sussex, Union and

Warren.

On November 15, 1992, New Jersey submitted to EPA its oxygenated

fuels program contained in New Jersey Administrative Code Title 7,

Chapter 27, Subchapter 25, ``Control and Prohibition of Air Pollution

by Vehicular Fuels'' (adopted September 1, 1992, and operative November

1, 1992). The program required oxygenated fuel to be supplied during a

CO control period of seven months each year, extending from October 1

through April 30. EPA proposed to approve this submission, along with a

number of other revisions to New Jersey's CO SIP, on November 10, 1994

(59 FR 56019). On February 7, 1995, New Jersey modified its oxygenated

fuels regulations to shorten the length of the control period to four

months each year, from November 1 through the last day of February. 27

N.J.R. 787(a), February 21, 1995. This modification has not been

submitted to EPA as a SIP revision. Subsequently, on September 15,

1995, in the course of actions on the New York and Connecticut CO SIPs,

EPA proposed to find that the appropriate length of the control period

for the entire New York-

[[Page 5300]]

Northern New Jersey-Long Island CMSA is four months. 60 FR 47911 and 60

FR 47907. EPA also proposed to approve New York's oxygenated fuels

program and, in a separate notice, Connecticut's oxygenated fuels

program, both for a four-month control period. 60 FR 47907, September

15, 1995; 60 FR 47911, September 15, 1995. On September 28, 1995, EPA

received a request from New Jersey to waive the oxygenated fuel

requirement for the New Jersey portion of the New York-Northern New

Jersey-Long Island CMSA under section 211(m)(3)(A). This request is

still pending.\1\ Finally, on December 7, 1995, EPA published a direct-

final rule (with an accompanying proposal) to redesignate the Southern

New Jersey Camden County CO nonattainment area to attainment. 60 FR

62741.

\1\ EPA has decided to act on New Jersey's oxygenated gasoline

program at this time, even though the Agency has not completed

review of the waiver request. EPA will revisit this SIP approval if

future action on the waiver request makes that necessary.

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In today's action, EPA is approving New Jersey's oxygenated fuels

program for Northern New Jersey for a four-month control period; this

control period length corresponds to the regulation that is currently

in effect in New Jersey and to the minimum length of control period

specified in section 211(m) of the Act. This approval finalizes the

proposed approval of New Jersey's oxygenated gasoline program for four

of the seven months proposed.

Oxygenated Fuels Requirements

The section 211(m) oxygenated fuels requirement applies to all

states with CO nonattainment areas with design values of 9.5 ppm or

greater based on data for the years 1988 and 1989. Each state's

oxygenated gasoline program must require gasoline sold or dispensed in

the larger of the CMSA or the metropolitan statistical area in which

the nonattainment area is located to contain not less than 2.7 percent

oxygen by weight during the control period. The control period is that

portion of the year in which the area is prone to high ambient

concentrations of CO, as determined by the EPA Administrator. The

length of the control period shall not be less than four months unless

a state can demonstrate that, because of meteorological conditions, a

reduced control period will assure that there will be no carbon

monoxide exceedances outside of such reduced period. (Clean Air Act

section 211(m)(2).) EPA announced guidance on the establishment of

control periods by area in the Federal Register on October 20, 1992.\2\

However, in subsequently proposing to approve the New York CO SIP

revision, EPA proposed to determine that the appropriate length of the

control period for the New York-Northern New Jersey-Long Island CMSA is

four months. 60 FR 47911, September 15, 1995. In a separate related

notice published in today's Federal Register, EPA is soliciting comment

on this determination for the limited purpose of inviting comment on

additional information concerning emission modelling related to New

Jersey's portion of the multi-state CMSA.

\2\ See, ``Guidelines for Oxygenated Gasoline Credit Programs

and Guidelines on Establishment of Control Periods under Section

211(m) of the Clean Air Act as Amended--Notice of Availability,'' 57

FR 47849 (October 20, 1992).

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State Submittal

Section 110, part D of Title I, and section 211(m) of the Act

required New Jersey to submit by November 15, 1992, revisions to the

State's CO SIP, including an oxygenated gasoline program for the New

Jersey portions of the New York-Northern New Jersey-Long Island CMSA.

As part of its November 15, 1992 submittal, the New Jersey Department

of Environmental Protection (NJDEP) submitted a revised rule--

Subchapter 25, ``Control and Prohibition of Air Pollution by Vehicular

Fuels,'' of Chapter 27, Title 7 of the New Jersey Administrative Code.

Subchapter 25 contains the requirements for New Jersey's oxygenated

gasoline program, which was adopted by New Jersey on September 1, 1992.

Summary of EPA Approval

In this action, EPA is approving New Jersey's oxygenated gasoline

program for Northern New Jersey as a revision to the New Jersey CO SIP,

but is confining this action to approval of a program with a four month

control period. For two reasons, it is appropriate at this time for EPA

to take final action to approve New Jersey's oxygenated gasoline

program for four months of the seven proposed.

First, at a minimum, any approved program would have to include a

control period of at least four months to meet the statutory

requirements in section 211(m) of the Act. However, EPA has not yet

made a final determination that the period prone to high ambient

concentrations of CO in the New York-Northern New Jersey-Long Island

CMSA is limited to four months, and EPA did not propose such a

determination in the proposed approval of the New Jersey submission.

EPA will make the final determination of control period length for the

entire CMSA in a final action on the New York and/or Connecticut

proposals, as supplemented by the additional data in today's companion

notice.3 60 FR 47911, September 15, 1995; 60 FR 47907, September

15, 1995. However, EPA is certain now that, given the statutory four-

month minimum, the four-month period covered by today's final action

will be an essential element of any fully approvable New Jersey

oxygenated gasoline SIP submission. Thus, there is no reason for EPA to

await the outcome of the separate notice-and-comment process on the

determination of the appropriate control period before approving New

Jersey's SIP submission for four months.

\3\ The reader is referred to these notices for further

information on EPA's proposed determination.

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Second, New Jersey currently has an oxygenated gasoline program

with a control period consistent with this determination. As explained

further below, EPA cannot approve the New Jersey submission for the

remaining three months so long as the State's laws do not currently

authorize a program for that additional period.

In addition, in this rulemaking EPA is finalizing its approval of

the other elements of New Jersey's oxygenated gasoline program. Since

most of the elements of New Jersey's oxygenated gasoline program remain

unchanged from those proposed for approval, EPA here incorporates by

reference the earlier proposal for all details of the oxygenated

gasoline program apart from the length of the control period and

references to the Camden nonattainment area.4 In a subsequent

final rule EPA will address the other revisions to the New Jersey CO

SIP, not related to the oxygenated gasoline program, that were proposed

to be approved in the November 10, 1994 notice.

\4\ As the Camden nonattainment area is in the process of being

redesignated to attainment without approval and retention of an

oxygenated fuels program, the references to the Camden area and the

``Southern Control Area'' are no longer applicable.

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In this action, EPA is also making the determination that, if and

when EPA takes final action determining that the control period for

this area is the four-month period from November through February, then

New Jersey's oxygenated gasoline SIP submission shall be deemed to meet

fully the requirements of section 211(m) of the Act, and this limited

approval of the four-month part of the New Jersey submission shall be

deemed converted to a full approval of that part.

[[Page 5301]]

Discussion

Approval of the SIP Submission for a Four-Month Control Period

In this action EPA is approving New Jersey's oxygenated gasoline

program only as it applies from November 1 through the last day of

February each year. This limited approval is appropriate given its

consistency with the minimum length of control period required by

statute and New Jersey's current regulatory authority, which is

confined to that four-month period.

Section 211(m)(2) of the Act requires oxygenated gasoline to be

sold during a control period established by the EPA Administrator based

on air quality monitoring data. This period must be no less than four

months, unless the state demonstrates that, because of meteorological

conditions, a reduced period would assure that there would be no

exceedances of the CO NAAQS outside of that period. Barring such a

demonstration, which none of the three affected States has attempted to

make, this provision requires EPA to approve an oxygenated fuels

program with at least a four-month control period. Thus, EPA must

approve at least four months of the seven months of the oxygenated

gasoline program proposed for approval in November 1994. The issue of

whether any additional months should be approved will be automatically

addressed when EPA takes final action on its proposal to modify the

length of the control period, as discussed further below.

EPA's limited approval of the New Jersey oxygenated gasoline

regulation for a four-month control period also ensures that the

approval complies with the Act's requirement that states have authority

to implement SIP provisions. Section 110(a)(2)(E)(i) sets as one

condition for SIP approval that the SIP must provide ``necessary

assurances that the State * * * will have adequate * * * authority

under State * * * law to carry out such [SIP].'' Because New Jersey's

current regulations provide for a four-month control period, EPA's

approval of the SIP revision for the identical control period tailors

the approval to New Jersey's current regulation and ensures that the

revision is approvable under section 110(a)(2)(E).

Finally, while EPA has proposed to determine that the control

period for the area be limited to four months, that determination need

not be finalized in order to approve a four month control period at

this time. EPA believes it is appropriate to approve New Jersey's

oxygenated fuel requirement for four months because this approval would

not increase the stringency of the State submission, a four-month

control period is a necessary element of the statutorily required

program, and the period conforms with the State's current regulation.

In addition, this partial approval ensures that New Jersey's four-month

control period will be consistent with the proposed approval of four-

month control periods in the respective portions of the New York-

Northern New Jersey-Long Island CMSA for Connecticut and New York.

Consequences of Final Determination of Four-Month Control Period

There are several consequences that would flow from a final

determination by EPA that four months is the correct control period for

this area. First, EPA is determining through this final action that, if

and when EPA takes final action determining that the control period for

the area is the four-month period from November through February, then

the corresponding four-month part of the New Jersey SIP submission

shall be deemed to meet fully the requirements of section 2ll(m) of the

Clean Air Act, and this limited approval of the four-month part of the

New Jersey submission shall be deemed converted to a full approval of

that part. There are no sanctions implications from this limited

approval.5

\5\ This action is a limited approval because, until EPA makes a

final determination on the length of the control period for this

area, EPA cannot finally determine whether New Jersey's SIP

submission meets fully the requirements of section 211(m) of the

Act. This action is also a partial approval because EPA is approving

only four months of the seven-month oxygenated gasoline program

submitted by New Jersey.

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Second, if and when EPA takes final action determining that the

control period for the area is the four-month period from November

through February, that action shall be deemed to withdraw EPA's

proposed November 10, 1994 approval of the remaining three months of

the period covered in New Jersey's seven-month SIP submission. Such a

determination would preempt New Jersey from establishing a longer

control period due to the prohibition of certain state fuel controls in

section 211(c)(4)(A) and associated regulation promulgated by EPA on

December 15, 1993. (59 FR 7716, February 16, 1994).

Section 211 of the Clean Air Act authorizes EPA to regulate fuels

and fuel additives. Under section 211(c)(1), the Administrator has the

authority to control or prohibit the manufacture and sale of fuels and

fuel additives for motor vehicles on the grounds of danger to public

health or impairment of emissions control devices. Section 211(c)(4)(A)

provides that where the Administrator has set such a control or

prohibition under section 211(c)(1) applicable to a characteristic or

component of a fuel or fuel additive, no state may set a control or

prohibition respecting that characteristic or component, unless the

state control or prohibition is identical to the federal control or

prohibition. This provision preempts state fuel controls that are

nonidentical to federal section 211(c)(1) controls on the same

characteristic or component.

EPA promulgated the RFG program under the authority of sections

211(k) and 211(c)(1) (59 FR 7716, February 16, 1994). RFG must contain

2.0% oxygen content by weight, and it is required year-round in the New

York-Northern New Jersey-Long Island CMSA. 40 CFR section 80 subpart D.

In the absence of section 211(m), section 211(c)(4)(A) would preempt

New Jersey from establishing its own minimum oxygen content

requirements different from the RFG requirements in RFG areas. Because

section 211(m) is a specific, more stringent requirement, it overrides

the general preemption provision as to the specific control period

applicable in each area, and states are not preempted from complying

with section 211(m) in RFG areas during that control period. However,

states are still preempted from setting nonidentical controls or

prohibitions on oxygen content in RFG areas to the extent that such

controls or prohibitions are not mandated by section 211(m). This

prohibition on state fuel controls may be waived if a state shows that

a nonidentical fuel control is necessary to achieve a NAAQS. (CAA

section 211(c)(4)(C)).

EPA has proposed to determine that the New York-Northern New

Jersey-Long Island CMSA is prone to high ambient concentrations of CO

during the four-month period of November through February. Section

211(m) requires states to adopt 2.7% oxygenated gasoline requirements

only for the period prone to high ambient concentrations of CO, as

determined by the Administrator. Thus, upon finalization of EPA's

proposed determination, section 211(m) would require New Jersey to

adopt a 2.7% minimum oxygen content standard for only the four months

of November through February. The RFG oxygen content requirement

preempts any state from prescribing or enforcing oxygen content

requirements in this RFG area that go beyond what is mandated by

section 211(m). Thus, New Jersey would be preempted from enforcing an

oxygenated gasoline program for the additional months of October, March

and April.

[[Page 5302]]

Section 110(a)(2)(A) requires SIPs to include ``enforceable * * *

control measures.'' EPA only has authority to approve the enforceable

portion of the State submission, which, upon EPA's determination, would

correspond to a four-month control period. Thus, EPA would be

authorized to approve New Jersey's oxygenated fuel requirements only

for the months of November through February. As a consequence, a final

determination of a four-month control period will be deemed to withdraw

EPA's November 10, 1994 proposed approval of the remaining three months

of the period covered in New Jersey's seven-month SIP submission.

Finally, approving New Jersey's oxygenated gasoline program only

for a four-month control period would be consistent with the proposed

approval of four-month control periods in the respective portions of

the New York-Northern New Jersey-Long Island CMSA for Connecticut and

New York.

Final Action

EPA is approving New Jersey's Subchapter 25 oxygenated fuels

program for the Northern New Jersey portion of the New York-Northern

New Jersey-Long Island CMSA as it applies for a control period of

November 1 through the last day of February. In addition, as described

above, EPA is determining through this final action that, if and when

EPA takes final action determining that the control period for the area

is the four-month period from November through February, then the

corresponding four-month part of the New Jersey SIP submission shall be

deemed to meet fully the requirements of section 2ll(m) of the Clean

Air Act, and this limited approval of the four-month part of the New

Jersey submission shall be deemed converted to a full approval of that

part.

Nothing in this rule 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 any 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 and 604.

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

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

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a 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 SIP revision, the state and any

affected local or tribal governments have elected to adopt the program

provided for under sections 110 and 182 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, in any event, 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.

This action has been classified as a Table 2 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)(l) of the CAA, 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, Reporting and

recordkeeping requirements.

Dated: January 18, 1996.

William J. Muszynski,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart FF--New Jersey

2. Section 52.1570 is amended by adding paragraph (c)(58) to read

as follows:

Sec. 52.1570 Identification of plan.

* * * * *

(c) * * *

* * * * *

(58) Revisions to the New Jersey State Implementation Plan (SIP)

for carbon monoxide concerning the oxygen content of motor vehicle

gasoline, dated November 15, 1992 submitted by the New Jersey State

Department of Environmental Protection (NJDEP).

(i) Incorporation by reference.

(A) Amendments to Chapter 27, Title 7 of the New Jersey

Administrative Code Chapter 27, Subchapter 25, ``Control and

Prohibition of Air Pollution by Vehicular Fuels,'' effective October 5,

1992 (as limited in Sec. 52.1605).

3. Section 52.1605 is amended under Title 7, Chapter 27, by

removing the two existing entries for subchapter 25 and adding a new

entry for subchapter 25 in numerical order to read as follows:

Sec. 52.1605 EPA Approved New Jersey regulations.

[[Page 5303]]

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State regulation State effective date EPA approved date Comments

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* * * * * * *

Title 7, Chapter 27

* * * * * * *

Subchapter 25, ``Control and Oct. 5, 1992..................... [Insert date of publication and Approves 1992 revision of Subchapter 25 except

Prohibition of Air, Pollution by FR page citation]. that (1) oxygenated gasoline provisions are

Vehicular Fuels;''. approved only as they apply to the four month

control period from November 1 through the

last day in February, consistent with the

February 21, 1995 NJDEP modification of

N.J.A.C. 7:27-25; and (2) oxygenated gasoline

provisions are approved only as they apply to

the Northern New Jersey portion of the New

York-Northern New Jersey-Long Island

consolidated metropolitan statistical area.

* * * * * * *

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[FR Doc. 96-2581 Filed 2-9-96; 8:45 am]

BILLING CODE 6560-50-P