Approval and Promulgation of Implementation Plans; New Jersey Transportation Control Measures

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 144; NJ22-1-7069a, FRL-5554-9]

Approval and Promulgation of Implementation Plans; New Jersey

Transportation Control Measures

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a

request by the State of New Jersey to revise its State Implementation

Plan (SIP) to incorporate transportation control measures (TCMs) as

part of the State's effort to attain the national ambient air quality

standard for ozone. EPA finds that New Jersey adequately demonstrated

in its November 15, 1993 SIP that growth in emissions from growth in

vehicle miles traveled will not increase and, therefore, offsetting

emission reduction measures are not required. In its November 15, 1993

SIP revision, the State submitted a list containing 136 TCMs as part of

the plan to reduce emissions of volatile organic compounds by 15

percent between 1990 and 1996.

DATES: This rule is effective on December 16, 1996, unless adverse or

critical comments are received by November 14, 1996. If adverse

comments are received, this notice will be withdrawn in the Federal

Register prior to the effective date of this rule.

ADDRESSES: All comments should be addressed to: William S. Baker,

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

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

Copies of New Jersey's submittals 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 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 (MC 6102), 401 M Street, S.W., Washington, D.C.

20460.

FOR FURTHER INFORMATION CONTACT: Rudolph K. Kapichak, Air Programs

Branch, Environmental Protection Agency, 290 Broadway, 20th Floor, New

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

SUPPLEMENTARY INFORMATION:

Background

Section 182(d)(1)(A) of the Clean Air Act Amendments of 1990

requires states containing ozone nonattainment areas classified as

``severe'' pursuant to Section 181(a) of the Act to adopt

transportation control measures (TCMs) and transportation strategies to

offset growth in emissions from growth in vehicle miles traveled (VMT)

or number of vehicle trips, and to attain reductions in motor vehicle

emissions (in combination with other emission requirements) as

necessary to comply with the Act's Reasonable Further Progress (RFP)

milestone and attainment requirements. The requirements for

establishing a VMT offset program are discussed in the April 16, 1992

General Preamble to Title I of the Act (57 FR 13498), in addition to

Section 182(d)(1)(A) of the Act. The VMT offset provision requires that

states submit by November 15, 1992 specific enforceable TCMs and

strategies to offset any growth in emissions from growth in VMT or

number of vehicle trips sufficient to allow total area emissions to

comply with the RFP and attainment requirements of the Act.

EPA has observed that these three elements (i.e., offsetting growth

in mobile source emissions, attainment of the RFP reduction, and

attainment of ozone national ambient air quality standards (NAAQS)

create a timing problem of which Congress was perhaps not fully aware.

As discussed in EPA's April 16, 1992 General Preamble to Title I, ozone

nonattainment areas affected by this provision were not otherwise

required to submit SIPs that show attainment of the 1996 15 percent RFP

milestone until November 15, 1993, and likewise are not required to

demonstrate post-1996 RFP and attainment of the NAAQS until November

15, 1994. The SIP demonstrations due on November 15, 1993, and on

November 15, 1994 are broader in scope than growth in VMT or trips in

that they necessarily address emission trends and control measures for

non-motor vehicle emission sources and, in the case of attainment

demonstrations, complex photochemical modeling studies.

EPA does not believe that Congress intended the VMT offset

provision to advance dates for these broader submissions. Further, EPA

believes that the November 15, 1992 date would not allow sufficient

time for states to have fully developed specific sets of measures that

would comply with all of the elements of the VMT offset requirements of

Section 182(d)(1)(A) over the long term. Consequently, EPA believes it

would be appropriate to interpret the Act to provide the following

alternative set of staged deadlines for submittal of elements of the

VMT offset SIP.

Under this interpretation, the three required elements of Section

182(d)(1)(A) are separable, and can be divided into three separate

submissions on different dates. Section 179(a) of the Act, in

establishing how EPA would be required to apply mandatory sanctions if

a state fails to submit a full SIP also provides that the sanctions

clock starts if a state fails to submit one or more SIP elements, as

determined by the Administrator. EPA believes that this language

provides EPA the authority to determine that the different elements of

a SIP submission are separable. Moreover, given the continued timing

problems addressed earlier, EPA believes it is appropriate to allow

states to separate the VMT offset SIP into three elements, each to be

submitted at different times: (1) The initial requirement to submit

TCMs that offset

[[Page 53625]]

growth in emissions; (2) the requirement to comply with the 15 percent

Rate of Progress requirement of the Act; and (3) the requirement to

comply with the post-1996 periodic reduction and attainment of the

ozone NAAQS.

Under this approach, the first element, the emissions offset

element, was due on November 15, 1992. The EPA believes this element is

not necessarily dependent on the development of the other elements. A

state could submit the emissions growth offset element independent of

an analysis of that element's consistency with the periodic reduction

and attainment requirements of the Act. Emissions trends from other

sources need not be considered to show compliance with this offset

requirement. As submitting this element in isolation does not introduce

the timing problems of advancing deadlines for RFP and attainment

demonstrations, EPA does not believe it is necessary to extend the

statutory deadline for submittal of the emissions growth offset

element.

The second element, which requires the VMT offset SIP to comply

with the 15 percent RFP requirement of the Act, was re-scheduled to be

due on November 15, 1993, which is the same date on which the 15

percent RFP SIP itself was due under Section 182(b)(1) of the Act. EPA

believes it is reasonable to extend the deadline for this VMT offset

element from November 15, 1992 to the date on which the entire 15

percent SIP was due, as this allows states to develop the comprehensive

strategy to address the 15 percent requirement and assure that the TCM

elements required under Section 182(d)(1)(A) are consistent with the

remainder of the 15 percent demonstration. Indeed, EPA believes that

only upon submittal of the broader 15 percent plan can a state have had

the necessary opportunity to coordinate its VMT strategy with its 15

percent plan.

The third element, which requires the VMT offset SIP to comply with

the post-1996 RFP and attainment requirements of the Act, was

rescheduled to be due on November 15, 1994, the statutory deadline for

those broader submissions. EPA believes it is reasonable to similarly

extend the deadline for this VMT element to the date on which the post-

1996 RFP and attainment SIPs are due for the same reason it is

reasonable to extend the deadline for the second element. First, it is

arguably impossible for a state to make the showing required by Section

182(d)(1)(A) for the third element until the broader demonstrations

have been developed by the state. Moreover, allowing states to develop

the comprehensive strategy to address post-1996 RFP and attainment by

providing a fuller opportunity to assure that the TCM elements comply

with the broader RFP and attainment demonstrations will result in a

better program for reducing emissions in the long term.

Section 182(d)(1)(A) of the Act requires New Jersey to offset any

growth in emissions from growth in VMT. As discussed in the General

Preamble, the purpose is to prevent a growth in motor vehicle emissions

from canceling out the emission reduction benefits of the federally

mandated programs in the Act. EPA interprets this provision to require

that sufficient measures be adopted so that projected motor vehicle VOC

emissions will never be higher during the ozone season in one year than

during the ozone season in the year before. When growth in VMT and

vehicle trips would otherwise cause a motor vehicle emissions upturn,

this upturn must be prevented. The emissions level at the point of

upturn becomes a ceiling on motor vehicle emissions. This requirement

applies to projected emissions in the years between the submission of

the SIP revision and the attainment deadline, and is above and beyond

the separate requirements for the RFP and the attainment

demonstrations. The ceiling level is defined, therefore, up to the

point of upturn, as motor vehicle emissions that would occur in the

ozone season of that year, with VMT growth, if all measures for that

area in that year were implemented as required by the Act. When this

curve begins to turn up due to growth in VMT or vehicle trips, the

ceiling becomes a fixed value. The ceiling line would include the

effects of federal measures such as new motor vehicle standards, phase

II RVP controls, and reformulated gasoline, as well as the Act-mandated

SIP requirements.

State Submittal

On November 15, 1992, and November 15, 1993, New Jersey submitted

to EPA requests to revise its SIP for ozone. These submittals had

undergone public hearings on October 27, October 29 and November 5,

1992 and on October 14 and October 19, 1993. In addition, these

submittals underwent significant public review as part of the process

initiated by three New Jersey metropolitan planning organizations

(MPOs); the North Jersey Transportation Planning Authority (NJTPA), the

Delaware Valley Regional Planning Commission (DVRPC) and the South

Jersey Transportation Planning Organization (SJTPO).

EPA is taking direct final approval action for the TCM SIP revision

submitted by the State of New Jersey to revise its SIP to incorporate

TCMs as part of the effort to attain the national ambient air quality

standard for ozone. In its original VMT offset SIP submission, New

Jersey included public transit programs, high occupancy vehicle (HOV)

facilities, traffic flow improvements, park and ride projects,

ridesharing, pedestrian programs, roadway pricing, and others. New

Jersey has subsequently indicated in its submittal of November 15, 1993

that motor vehicle emissions will not at any time increase from those

of the previous year. Therefore, the State is not required to implement

any measures to offset growth in emissions due to growth in VMT. EPA is

approving New Jersey's November 15, 1993 submittal as fulfilling the

requirements of the first element of Section 182(d)(1)(A).

To meet the second element of the VMT SIP, due on November 15,

1993, New Jersey opted to include 136 TCMs in its 15 percent SIP

submittal under Section 182(b) of the Act. The remainder of this notice

discusses these TCMs.

As part of the 15 Percent Plan, New Jersey included TCMs which will

be implemented and which will result in emission reductions. EPA will

be taking action on New Jersey's 15 Percent Plan in another Federal

Register notice in the future, but the TCMs, which are the subject of

this Federal Register notice, can be incorporated into the SIP at this

time.

A total of 136 TCMs are being implemented throughout the State as

part of the MPO process, these are as follows:

Park and Ride Lots (25)

Summit--Springfield Ave: 30 spaces

Clinton--I-78 & Route 31: 50 spaces

Branchburg--Route 202: 67 spaces

Suburban Bus--New Brunswick--Route 27: 30 spaces

Netcong Railroad Station: 132 spaces

Beverwyck--Parsippany/Troy Hills--Route 46: 300 spaces

Newton--Routes 206 & 94: 200 spaces

Westwood: 46 spaces

Stockholm--Hardyston--Routes 23 & 515: 50 spaces

Flemington Outlet--Route 202--Raritan: 100 spaces

Farmers Market--I-95 & Route 413 (Pennsylvania): 100 spaces

Plauderville--Atwater Lane--Railroad Station: 200 spaces

Route 9 Bus--Middlesex/Monmouth Counties: unknown

Orange Bus Terminal: unknown

Turnpike Int 8A--Route 130 & 32--S. Brunswick: 500 spaces

Turnpike Int 10--Edison: 750 spaces

[[Page 53626]]

Turnpike--Vince Lombardi Service Area--Bergen: 1000 spaces

Interchange 153--Passaic: unknown

Montvale Expansion--Bergen: 152 spaces

Interchange 109--Middletown: 65 spaces

Jefferson/Mullica Hill--Route 45--Harrison Township: 40 spaces

Malage--Route 40/Dutch Mill Road--Franklin: 50 spaces

Woodbury--Route 45 & Cooper Street: 50 spaces

Aberdeen--Monmouth County: 400 spaces

Trenton Rail Station: 900 Spaces

Transit Improvements (Sponsored by NJ Transit) (39)

Waterfront Connection--Hudson, Essex, Middlesex, Monmouth Counties

Kearny Connection--Morris, Somerset, Essex, Union Counties

Hackettstown Booton Line Extension--Warren County

Hoboken Transit Hub--Hudson County

Transit Station Bike Lockers and Racks--Statewide

Existing Park and Ride Facilities Program--Select Stations

Summer shore Express Service--North Jersey Coast Line

Atlantic City Rail Line Extension to Philadelphia

Jersey Shore Line Passenger Service to Cape May locations

Route 67 Modified Bus service--Toms River/Lakewood via US 9

Route 303 Broad Street Station--Penn Station Shuttle

Expanded Bus Service Strategies--Statewide

Expanded Service Strategies--Port Newark/Elizabeth

Cape May City Ferry Bus Service

Atlantic City Garage in Egg Harbor

Atlantic County Experimental Services

Weehawken Ferry Terminal Parking

Redesign Plaza at Exchange Place PATH Station for Drop Offs

Gateway Park and Ride shuttle

Traffic Flow Improvements (66)

Closed Loop Signal System (Several Projects Statewide noted as one)

Magic I Motorist Advisory System

Island Beach State Park Motorist Information System

Service Patrols--Morris, Essex, Passaic, and Bergen Counties

I-80 High Occupancy Vehicle Lane

Turnpike High Occupancy Vehicle Lane from Exit 11 to 14

Turnpike Traffic Surveillance and Control System--Exit 8A to GWB

Incident Management Radio System--Statewide

Incident Management State Police Communications Center--Cranbury

Signal Upgrade--Essex County (5 projects)

Interchange Improvements--Garden State Parkway--Statewide

Atlantic City Computerized Signal System

Turning Lanes and Signal Improvements in Cape May (3 projects)

Bridge Motorist Information System--Tacony and Betsy Ross Bridges

Traffic Operations Center--Camden and Burlington Counties

Incident Management--Camden Area Service Patrol

One Way Tolls--Delaware River Crossings (3 Projects)

Burlington County Signal Upgrades and Improvements (21 Projects)

Cumberland County--Arterial Signal System

Mercer County--Intersection and Signalization Improvements

Essex County--Turn Lanes and Signal Modification (6 projects)

Ocean County--Traffic Signal Retiming and Turn Lanes (11 projects)

Atlantic County--Intersection Improvements

Other (6)

Employer Trip Reduction--Statewide

Bayshore Waterfront Bike/Pedestrian way

Traction Line Bikeway--Morris Township

Meadows Path Bikeway--Hudson and Bergen Counties

North Bergen Trail--Pedestrian/Bicycle

Sussex Trails--Pedestrian/Bicycle

The 136 TCMs are predicted to result in a Statewide reduction of

1.4 tons per day of VOCs, out of a total of 209 tons/day for the entire

15 percent plan. Therefore, the TCMs represent 0.7 percent of the

needed reduction. The reductions attributed to the TCMs are broken down

by the three nonattainment areas in New Jersey, as follows: 0.9 tons in

northern New Jersey, 0.3 tons in the Philadelphia metropolitan area of

New Jersey, and 0.2 tons in the Atlantic City area. This equals 1.4

tons Statewide.

The 136 TCMs fall into the following four broad categories. The

percentages represent the portion of the 1.4 tons of reduction

attributed to each category.

Traffic Flow Improvements: 66 projects; 48.6 percent.

Transit Projects: 39 projects; 42.2 percent.

Park and Ride Projects: 25 projects, 7.7 percent.

ETR/Bicycle & Pedestrian Projects: 6 projects. 1.5 percent.

The projects contained in the SIP submittal are being implemented

as part of the Clean Air Act requirement to reduce VOC emissions by 15

percent between 1990 and 1996. The projects will be implemented by 1996

and will assist New Jersey in attaining the NAAQS for ozone.

Implementation of these projects will be tracked and ensured

through the transportation conformity process as required by the

federal transportation conformity regulation (40 CFR Part 93; 1290).

Transportation Improvement Programs (TIPs) which contain TCMs are

developed annually by the three MPOs in the State. This is accomplished

in coordination with several state and federal agencies. The

transportation conformity regulation requires that all TIPs be

consistent with the SIP. Since these projects are contained in the SIP,

failure to include them in the TIP will cause the TIP to not conform.

This could result in transportation projects being halted. Such a

decision is made by the Federal Highway Administration in consultation

with EPA.

There was a significant opportunity for public comment throughout

the TIP development process. MPOs provide access to all information and

utilize public outreach as an important component of the transportation

process. In addition, the development of the 15 percent plan underwent

the public hearing process as required for all SIP amendments.

In March of 1992, EPA released a document entitled Transportation

Control Measure Information Documents, as required by Section 108(f) of

the Clean Air Act Amendments (prepared for EPA by Cambridge

Systematics, Inc). This document includes a detailed description of the

impacts of implementing several distinct types of TCMs, but does not

provide a means to calculate specific emissions reductions from TCM

implementation. New Jersey used this information to evaluate various

TCMs. Chapters include information on employer programs, public

transit, HOV projects, and pedestrian programs. This document is

available through the National Technical Information Service, document

reference number PB92-173-566.

A significant portion of these types of projects were utilized by

New Jersey even though the State is not required to implement any

specific TCMs. Furthermore, any state can implement viable TCMs that

are not included in this list.

Conclusion

The benefits associated with these projects were calculated using

best transportation planning practices. EPA believes that New Jersey

modeled these

[[Page 53627]]

projects to the best of its ability using the best practices available,

and, therefore, approves the project analysis conducted by the State of

New Jersey.

The rationale for EPA's direct approval is that these TCMs were

subject to the extensive public participation process discussed

earlier. The TCMs will effectively reduce VMT and related VOC

emissions, thereby reducing ground level ozone. Therefore, EPA is

approving this revision incorporating these TCMs into New Jersey's SIP.

Regarding the first VMT offset element, New Jersey has identified

and evaluated TCMs to reduce VMT, and has shown that VMT growth will

not result in a growth of motor vehicle emissions that will negate the

effects of the reductions required under the Act and there will not be

an upturn of motor vehicle emissions. Regarding the second element, New

Jersey has submitted a complete 15 percent SIP that contains 136 TCMs

which contribute to its showing that the 15 percent reduction will be

achieved. While EPA is not prepared to take action on New Jersey's 15

percent plan at this time, EPA does not believe that it is necessary to

delay taking action on the second element of the VMT SIP, since to do

so would merely delay action on New Jersey's TCMs into its SIP.

However, if in approving the 15 percent plan approval it is determined

that New Jersey would in fact have to implement additional TCMs to meet

the 15 percent RFP requirement, and a subsequent submission of a

revised 15 percent SIP is required, EPA would have to reevaluate its

approval of the second element of the VMT SIP.

New Jersey has met the first and second requirements of the VMT

offset plan. The third requirement is for New Jersey to use TCMs as

necessary to achieve attainment of the ozone NAAQS and meet post-1996

RFP requirements. This third requirement will be addressed in future

rulemaking after EPA receives and evaluates New Jersey's attainment and

post-1996 RFP SIP submissions.

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.

EPA is publishing this rule without prior proposal because EPA

views this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, the EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. Thus, this direct final action

will be effective December 16, 1996, unless, by November 14, 1996,

adverse or critical comments are received.

If the EPA receives such comments, this rule will be withdrawn

before the effective date by publishing a subsequent notice that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this rule should

do so at this time. If no adverse comments are received, the public is

advised that this rule will be effective December 16, 1996. (See 47 FR

27073 and 59 FR 24059).

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

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. Moreover, 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 Section 182(d) 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 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.

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule 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 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and recordkeeping requirements, Volatile

organic compounds.

[[Page 53628]]

Dated: July 29, 1996.

William J. Muszynski,

Deputy 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 52.1582 is amended by adding paragraphs (e) and (f) to

read as follows:

Sec. 52. 1582 Control strategy and regulations: Ozone (volatile

organic substances) and carbon monoxide.

* * * * *

(e) The November 15, 1993 SIP revision adds 136 transportation

control measures to the SIP which will contribute emission reductions

towards meeting the 15 Percent requirement of the ozone SIP.

(f) The November 15, 1993 SIP revision provides a 1993

demonstration that growth in emissions from growth in vehicle miles

traveled will not increase through 2007 and that offsetting emission

reductions are not required.

[FR Doc. 96-26202 Filed 10-11-96; 8:45 am]

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