Approval and Promulgation of Implementation Plans; New Jersey 15 Percent Rate of Progress Plan and Phase I and II Ozone Implementation Plans

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ28-2-170, FRL-5850-2]

Approval and Promulgation of Implementation Plans; New Jersey 15

Percent Rate of Progress Plan and Phase I and II Ozone Implementation

Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final

action on a State Implementation Plan (SIP) revision submitted by New

Jersey which is intended to meet several Clean Air Act requirements.

EPA is approving revisions to the 1990 base year ozone emission

inventory; the 1996 and 1999 ozone projection emission inventories;

photochemical assessment monitoring stations network; demonstration

that emissions from growth in vehicle miles traveled will not increase

motor vehicle emissions and, therefore, offsetting measures are not

necessary; modeling efforts completed to date; transportation

conformity budgets; and enforceable commitments.

EPA is also giving conditional interim approval to New Jersey's 15

Percent Rate of Progress Plan and the 9 Percent Reasonable Further

Progress Plan. The intended effect of this action is to approve

programs required by the Clean Air Act which will result in emission

reductions that will help achieve attainment of the national ambient

air quality standard (NAAQS) for ozone.

EFFECTIVE DATE: This rule will be effective July 30, 1997.

ADDRESSES: Copies of the New Jersey submittals and EPA's Technical

Support Document are available at the following addresses for

inspection during normal business hours:

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

295 Broadway, 25th Floor, New York, New York 10007-1866

New Jersey Department of Environmental Protection, Office of Air

Quality Management, Bureau of Air Quality Planning, 401 East State

Street, CN418, Trenton, New Jersey 08625

FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 25th Floor, New York,

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

SUPPLEMENTARY INFORMATION:

I. Background

On April 30, 1997 (62 FR 23410), EPA proposed approval of New

Jersey's State Implementation Plan (SIP) submittals of December 31,

1996 and February 25, 1997 for the following Clean Air Act (CAA)

requirements: revisions to the 1990 base year ozone emission inventory;

the 1996 and 1999 ozone projection emission inventories; photochemical

assessment monitoring stations network; demonstration that emissions

from growth in vehicle miles traveled will not increase motor vehicle

emissions and, therefore, offsetting measures are not necessary;

modeling efforts completed to date; transportation conformity budgets;

and enforceable commitments. EPA also proposed conditional interim

approval of New Jersey's 15 Percent Rate of Progress (ROP) Plan and the

9 Percent Reasonable Further Progress (RFP) Plan.

The December and February SIP submittals address the requirements

for the two severe ozone nonattainment areas in New Jersey--the New

York, Northern New Jersey, Long Island Area, and the Philadelphia,

Wilmington, Trenton Area. For the purposes of this action, these areas

will be referred to as, respectively, the Northern New Jersey ozone

nonattainment area (NAA) and the Trenton NAA. New Jersey's two SIP

submittals revised the previously submitted 15 Percent ROP Plan dated

November 15, 1993.

A detailed discussion of the SIP revisions and EPA's rationale for

either approving or conditionally approving them is contained in the

April 30, 1997 proposal and will not be restated here. The reader is

referred to the proposal for more details.

II. State Commitment

EPA proposed to condition its approval of New Jersey's 15 Percent

ROP and 9 Percent RFP Plans because the emission reductions from the

enhanced inspection and maintenance (I/M) program were calculated with

modeling performed before EPA issued final guidance on how to estimate

emissions. In a letter dated May 29, 1997, New Jersey committed to

perform the remodeling necessary to estimate the

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emissions reductions that will result from the enhanced I/M program as

implemented within 12 months from the effective date of today's

rulemaking.

As part of the remodeling of the enhanced I/M program, New Jersey

must demonstrate that the 15 percent and 9 percent emission reductions

are still being achieved in the Northern New Jersey and Trenton

nonattainment areas as required by sections 182(b)(1) and 182(c)(2)(B)

of the CAA and in accordance with EPA's policies and guidance.

Therefore, EPA is accepting New Jersey's commitment and EPA's

approval is conditioned upon the State completing the remodeling. Once

the State satisfactorily fulfills this condition, EPA will take

rulemaking action to convert the conditional interim approval to an

interim approval. Should the State fail to fulfill the remodeling

condition by July 30, 1998, this conditional interim approval will

convert to a disapproval pursuant to section 110(k)(4) of the CAA. In

that event, EPA would issue a letter notifying the State that the

condition has not been met, and that the approval has converted to a

disapproval.

III. Public Comments

In response to EPA's proposed action on this New Jersey SIP

revision, no comments were received.

IV. Conditional Interim Approval

New Jersey's 15 Percent ROP and 9 Percent RFP Plans contain adopted

control measures with the exception of the enhanced I/M program which

had been given a conditional interim approval by EPA on May 14, 1997

(62 FR 26401) pursuant to the National Highway System Designation Act

(NHSDA) and section 110 of the CAA. The enhanced I/M program approval

was granted on an interim basis for a period of 18 months, in order for

New Jersey to perform an evaluation of emission reduction credits,

under the authority of section 348 of the NHSDA. A full approval of New

Jersey's final enhanced I/M SIP revision, which will include the

State's program evaluation and final adopted State regulations, is

still necessary under sections 110, 182, 184 and 187 of the CAA. After

EPA's review of the State's enhanced I/M program evaluation and final

regulations, EPA will take appropriate rulemaking action. If the

State's program evaluation demonstrates a shortfall, the State must

find additional emission reductions.

Since New Jersey's 15 Percent ROP and 9 Percent RFP Plans are

dependent on the emission reductions from the enhanced I/M program, EPA

can only grant an interim approval to the 15 Percent ROP and 9 Percent

RFP Plans until the State evaluates the effectiveness of the enhanced

I/M program and EPA takes action on the results of this evaluation.

Therefore, this approval is being granted on an interim basis for a

period of 18 months following the effective date of the May 14, 1997

conditional interim approval of the enhanced I/M rulemaking. At the end

of this period, the interim approval of the emission credits will

expire and the credits will be adjusted according to the results of the

evaluation. At that time, EPA will take action regarding the efficacy

of the State's SIP under the authority of sections 110 and 182 of the

CAA.

V. Conclusion

EPA has evaluated these submittals for consistency with the CAA and

Agency regulations and policy. EPA is approving New Jersey's: revisions

to the 1990 base year ozone emission inventory; the 1996 and 1999 ozone

projection emission inventories; photochemical assessment monitoring

stations network; demonstration that emissions from growth in vehicle

miles traveled will not increase motor vehicle emissions and,

therefore, offsetting measures are not necessary; modeling efforts

completed to date; transportation conformity budget; and enforceable

commitments.

EPA is granting conditional interim approval of New Jersey's 15

Percent ROP Plan and 9 Percent RFP Plan as a revision to the New Jersey

SIP. EPA is approving the credits on an interim basis, pending

verification of New Jersey's enhanced I/M program's performance,

pursuant to section 348 of the NHSDA. The interim approval of the 15

Percent ROP and 9 Percent RFP plans will expire on December 14, 1998,

18 months from the effective date of EPA's final conditional interim

rulemaking of New Jersey's I/M program which was published in the

Federal Register on May 14, 1997 (62 FR 26401). The interim approval

will be replaced by appropriate EPA action based on the evaluation EPA

receives from New Jersey concerning the enhanced I/M program's

performance.

This rulemaking action is a conditional interim approval that will

convert to interim approval when New Jersey has completed the

remodeling condition of this rulemaking. If the condition is not met

within 12 months from the effective date of today's rulemaking, this

rulemaking will convert to a disapproval. EPA would notify New Jersey

by letter that the condition has not been met and that the conditional

interim approval of the 15 Percent ROP and 9 Percent RFP Plans has

converted to a disapproval. In addition, the reader should note that

there is a condition on the conditional interim approval of New

Jersey's enhanced I/M program which if not met, will affect EPA's

action on the 15 Percent ROP and 9 Percent RFP Plans conditional

interim approval. If EPA disapproves the New Jersey's enhanced I/M

program, EPA's conditional interim approval of the 15 Percent ROP and 9

Percent RFP Plans will also convert to a disapproval.

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.

VI. Administrative Requirements

A. Executive Order 12866

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.

B. Regulatory Flexibility Act

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, the EPA certifies 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 flexibility analysis would constitute Federal

[[Page 35102]]

inquiry into the economic reasonableness of state action. The CAA

forbids EPA to base its actions concerning SIPs on such grounds. Union

Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

Conditional approvals of SIP submittals 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, EPA certifies 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 flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The CAA forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427

U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing State requirements applicable to small

entities. Federal disapproval of the State submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

Under Section 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

annual costs to State, local, or tribal governments in the aggregate;

or to 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 approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

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

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 5 U.S.C. 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. 5 U.S.C. 804(2).

E. Petitions for Judicial Review

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

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

of Appeals for the appropriate circuit by August 29, 1997. Filing a

petition for reconsideration by the Administrator of this final rule to

conditionally approve the New Jersey 15 Percent ROP and 9 Percent RFP

Plans of the SIP, on an interim basis, does not affect the finality of

this rule for the purposes of judicial review, nor does it extend the

time within which a petition for judicial review may be filed, and

shall not postpone the effectiveness of such rule or action. This

action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2) of the Administrative Procedure

Act).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: June 18, 1997.

William J. Muszynski,

Deputy Regional Administrator, Region II.

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 52.1580 is amended by redesignating paragraphs (a)

through (c) as paragraphs (a)(1) through (a)(3); by adding a paragraph

heading before newly designated paragraph (a)(1); and adding new

paragraph (b) to read as follows:

Sec. 52.1580 Conditional approval.

(a) Enhanced Inspection and Maintenance. (1) * * *

* * * * *

(b) 15 Percent and 9 Percent Ozone Plans. New Jersey's December 31,

1996 and February 25, 1997 submittals for the 15 Percent Rate of

Progress Plan (15 Percent Plan) and 9 Percent Reasonable Further

Progress Plan (9 Percent Plan) for the Northern New Jersey (New York,

Northern New Jersey, Long Island Area) nonattainment area and the

Trenton (Philadelphia, Wilmington, Trenton Area) nonattainment area, is

conditionally approved for an interim period as referenced in paragraph

(a) of this section. The conditions for approvability are as follows:

(1) New Jersey must remodel by July 30, 1998 to determine

affirmatively the creditable reductions from the enhanced inspection

and maintenance (I/M) program as used in the 15 Percent and 9 Percent

Plans. This remodeling must be in accordance with EPA guidance

documents: ``Date by which States Need to Achieve all the Reductions

Needed for the 15 Percent Plan from I/M and Guidance for

Recalculation,'' note from John Seitz and Margo Oge, dated August 13,

1996, and ``Modeling 15 Percent VOC Reductions from I/M in 1999--

Supplemental Guidance'', memorandum from Gay MacGregor and Sally

Shaver, dated December 23, 1996. Should the State fail to fulfill the

remodeling condition by July 30, 1998, this conditional interim

approval will convert to a disapproval pursuant to section 110(k)(4) of

the Clean Air Act.

(2) New Jersey must demonstrate by December 14, 1998 that 15

percent and 9 percent emission reductions are still achievable in the

Northern New Jersey and Trenton nonattainment areas as required by

sections 182(b)(1) and 182(c)(2)(B) of the Clean Air Act and in

accordance with EPA's policies and guidance.

3. Section 52.1582 is amended by adding a sentence to the end of

paragraph (d)(1), and adding new

[[Page 35103]]

paragraphs (d)(3) through (d)(7) to read as follows:

Sec. 52.1582 Control strategy and regulations: Ozone (volatile organic

substances) and carbon monoxide.

* * * * *

(d)(1) * * * Revisions to the 1990 base year emission inventory

dated December 31, 1996 for the New York/Northern New Jersey/Long

Island and Philadelphia/Wilmington/Trenton nonattainment areas of New

Jersey have been approved.

* * * * *

(3) The 1996 and 1999 ozone projection year emission inventories

included in New Jersey's December 31, 1996 State Implementation Plan

revision for the New York/Northern New Jersey/Long Island and

Philadelphia/Wilmington/Trenton nonattainment areas have been approved.

(4) The conformity emission budgets for the three metropolitan

planning organizations and McGuire Air Force Base included in New

Jersey's December 31, 1996 State Implementation Plan revision have been

approved.

(5) The photochemical assessment monitoring stations network

included in New Jersey's December 31, 1996 State Implementation Plan

revision for the New York/Northern New Jersey/Long Island and

Philadelphia/Wilmington/Trenton nonattainment areas has been approved.

(6) The demonstration that emissions from growth in vehicle miles

traveled will not increase motor vehicle emissions and, therefore,

offsetting measures are not necessary which was included in New

Jersey's December 31, 1996 State Implementation Plan revision for the

New York/Northern New Jersey/Long Island and Philadelphia/Wilmington/

Trenton nonattainment areas has been approved.

(7) The enforceable commitments to: participate in the consultative

process to address regional transport; adopt additional control

measures as necessary to attain the ozone standard, meet rate of

progress requirements, and eliminate significant contribution to

nonattainment downwind; identify any reductions that are needed from

upwind areas for the area to meet the ozone standard; and implement the

Ozone Transport Commission NOx Memorandum of Understanding included in

New Jersey's December 31, 1996 State Implementation Plan revision for

the New York/Northern New Jersey/Long Island and Philadelphia/

Wilmington/Trenton nonattainment areas have been approved.

[FR Doc. 97-17058 Filed 6-28-97; 8:45 am]

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