Approval and Promulgation of Air Quality Implementation Plans; State of New Jersey; Disapproval of the 15 Percent Rate of Progress Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ28-1-162-3; FRL-6151-2]

Approval and Promulgation of Air Quality Implementation Plans;

State of New Jersey; Disapproval of the 15 Percent Rate of Progress

Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final rule.

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SUMMARY: EPA hereby gives notification that pursuant to its authority

under Clean Air Act (the Act), section 110(k)(4), in a December 12,

1997 letter, EPA notified New Jersey that the conditional interim

approval of the New Jersey 15 Percent Rate of Progress Plan had been

converted to a disapproval. The letter triggered the 18-month time

clock for the mandatory application of sanctions under section 179(a)

of the Act and the 24-month time clock for the Federal Implementation

Plan (FIP) under section 110(c)(1). This also serves to amend Title 40,

part 52 to note the conversion of the conditional interim approval to a

disapproval.

EFFECTIVE DATE: This action is effective as of December 12, 1997.

ADDRESSES: Copies of New Jersey's original submittals and EPA's

Technical Support Document are available at the following addresses for

inspection of them during normal business hours:

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

290 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: On April 30, 1997 (62 FR 23410), EPA

proposed a conditional interim approval of New Jersey's December 31,

1996 and February 25, 1997 SIP submittals pertaining to New Jersey's 15

Percent Rate of Progress (ROP) Plan as well as taking action on other

Clean Air Act requirements. On June 30, 1997, an interim final rule was

published in the Federal Register (62 FR 35100) which granted a

conditional interim approval of New Jersey's 15 Percent ROP Plan.

EPA's conditional interim approval of the 15 Percent ROP Plan was

based on, among other things, the State starting the enhanced

inspection and maintenance program component of the 15 Percent ROP Plan

in sufficient time to achieve the 15 percent reduction in volatile

organic compounds (VOC) emissions that the State relied upon to fulfill

the 15 percent requirement. EPA granted the conditional interim

approval of the 15 Percent ROP Plan based on New Jersey achieving the

emission reductions from the enhanced inspection and maintenance

program. Based on New Jersey's schedule and due to New Jersey's delays

in starting the enhanced inspection and maintenance program, New Jersey

cannot achieve the required 15 percent emission reductions.

As a result, EPA notified New Jersey by a December 12, 1997 letter

that the

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conditional interim approval of the New Jersey 15 Percent ROP Plan had

been converted to a full disapproval pursuant to section 110(k) of the

Clean Air Act (the Act), 42 U.S.C. 7410(k). This action taken on

December 12, 1997 started a mandatory sanctions clock for the 15

Percent ROP Plan. Unless this clock is stopped, starting 18 months from

December 12, 1997, increased emissions from new or modified major

sources of VOCs and nitric oxides must be offset at a rate of two tons

of reduction for every one ton of increased emissions, pursuant to

section 179(b)(2) of the Act, 42 U.S.C. 7509(b)(2). Starting six months

thereafter, restrictions on New Jersey's receipt of federal highway

funds will also begin, pursuant to section 179(b)(1), 42 U.S.C.

7509(b)(1).

In addition, two Federal Implementation Plan (FIP) clocks began as

a result of EPA's December 12, 1997 notification. First, a statutory

24-month 15 Percent ROP Plan FIP clock began for the New Jersey portion

of the New York-Northern New Jersey-Long Island ozone nonattainment

area, pursuant to section 110(c) of the Act, 42 U.S.C. 7410(c). Second,

pursuant to a consent decree entered on March 26, 1997 in American Lung

Association of Northern Virginia, et al. v. Carol M. Browner, Civ. No.

1:96CV01388, in the United States District Court for the District of

Columbia, an expedited 15 Percent ROP Plan FIP clock began for the New

Jersey portion of the Philadelphia-Wilmington-Trenton ozone

nonattainment area. This clock requires that EPA propose a 15 Percent

ROP Plan FIP by January 15, 1999 and adopt it by August 15, 1999. In

order to stop the sanctions and FIP clocks, New Jersey must submit a

new 15 Percent ROP Plan SIP and EPA must take rulemaking approval

action on the submittal.

EPA's approval of New Jersey's enhanced inspection and maintenance

program remains in effect. However, the December 12, 1997 letter began

a sanctions clock for New Jersey's failure to implement its enhanced

inspection and maintenance program, in accordance with section

179(a)(4) of the Act. Unless New Jersey begins implementation of its

enhanced inspection and maintenance program, starting 18 months from

December 12, 1997, increased emissions from new or modified major

sources of VOCs and nitric oxides must be offset at a rate of two tons

of reduction for every one ton of increased emissions. Starting six

months thereafter, restrictions of New Jersey's receipt of federal

highway funds will also begin.

The enhanced inspection and maintenance SIP approval was a separate

action and the delayed start date has different consequences for the 15

Percent ROP Plan SIP than for the enhanced inspection and maintenance

SIP. Specifically, the New Jersey enhanced inspection and maintenance

program remains an approved part of the applicable implementation plan

for New Jersey; therefore, no FIP requirements are triggered. This is

because the start date was significant only for purposes of taking

credit for reductions under the National Highway System Designation

Act. However, the 15 Percent ROP Plan SIP was converted to a

disapproval because the 15 Percent ROP Plan SIP was not viable without

the reductions from enhanced inspection and maintenance that the State

had projected based upon the start date.

Effective Date Under the Administrative Procedures Act

EPA has issued this action as a rulemaking because EPA has treated

this type of action as rulemaking in the past. However, EPA believes

that it would have the authority to issue this action in an informal

adjudication, and is considering which administrative process-

rulemaking or informal adjudication-is appropriate for future actions

of this kind. Because EPA has issued this action as a rulemaking, the

Administrative Procedures Act (APA) applies.

Today's action was effective on December 12, 1997. Under the APA, 5

U.S.C. 553(d)(3), agency rulemaking may take effect sooner than 30 days

after the date of publication in the Federal Register if the Agency

finds and publishes good cause to mandate an earlier effective date.

Today's action concerns SIP deadlines that have already passed; and EPA

previously cautioned the affected state that the SIP submission was

overdue and that EPA was considering the action it is taking today. In

addition, today's action simply provides notice of a ``clock'' that was

initiated on December 12, 1997, which will not result in sanctions

against the state for 18 months after December 12, 1997, and that the

state may ``turn off'' through the submission of a complete and

approvable SIP submittal meeting EPA policy and guidance. These reasons

support an effective date prior to 30 days after the date of

publication.

EPA believes that the good cause exception to the notice and

comment rulemaking requirement applies to this rulemaking action.

(Administrative Procedure Act (APA) section 553(a)(B)). Section

553(a)(B) of the APA provides that the Agency need not provide notice

and an opportunity for comment if the Agency, for good cause,

determines that notice and comment are ``impracticable, unnecessary, or

contrary to the public interest.'' In the present circumstance, notice

and comment are unnecessary. The conversion of the conditional interim

approval to a disapproval does not require any judgment on the part of

the Agency. The issue is clear that the Agency must convert the

conditional interim approval to a disapproval based upon the 15 Percent

ROP Plan notice, the enhanced inspection and maintenance plan notice

and the consent decree entered on March 26, 1997 in American Lung

Association of Northern Virginia, et al. v. Carol M. Browner, Civ. No.

1:96CV01388. No substantive review is required to determine that the

state did not start the program. There is no dispute about the fact

that the state did not start the enhanced inspection and maintenance

program. Because there is nothing on which to comment, notice and

comment rulemaking are unnecessary. In addition, EPA is obligated by

Court Order to take these actions and the Court Order has previously

been subject to notice in the Federal Register pursuant to section

113(g) of the Act, 42 U.S.C. 7413(g).

Remodeling Condition

EPA's June 30, 1997 conditional interim approval contained a

remodeling condition (see 40 CFR 52.1580(b)(1)). On July 30, 1998, New

Jersey satisfied the condition by submitting this remodeling.

Therefore, section 1580(b)(1) is removed from the CFR.

Administrative Requirements

Executive Order (E.O.) 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review entitled, ``Regulatory

Planning and Review.'' The final rule is not subject to E.O. 13045,

entitled ``Protection of Children From Environmental Health Risks and

Safety Risks,'' because it is not an ``economically significant''

action under E.O. 12866.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.

generally requires an agency to conduct a regulatory flexibility

analysis of any rule subject to notice and comment rulemaking

requirements 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 not-for-profit

enterprises, and small

[[Page 45401]]

governmental jurisdictions. This final rule will not have a significant

impact on a substantial number of small entities because EPA's

disapproval of the state's 15 Percent Plan under section 110 and

subchapter I, part D of the Clean Air Act does not affect any existing

requirements applicable to small entities. Any pre-existing federal

requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements at this time. Any new Federal

requirements will be subject to separate notice and comment rulemaking

at which time any impact on small entities will be determined.

Therefore, I certify that this action will not have a significant

economic impact on a substantial number of small entities.

Unfunded Mandates and E.O. 12875

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. E.O. 12875 states that

no federal executive department or agency shall promulgate any

regulation not required by statute that creates an unfunded mandate on

any state, local or tribal government.

EPA has determined that this disapproval action 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 disapproves

the State's 15 Percent ROP Plan, but does not affect any specific state

or local control measures nor imposes any new requirements. Any new

Federal requirements will be subject to separate notice and comment

rulemaking at which time any costs will be determined. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action. For these reasons, E.O. 12875

also does not apply.

Congressional Review Act--Submission to Congress and the Comptroller

General

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by

the Small Business Regulatory Enforcement Fairness Act of 1996,

generally provides that before a rule may take effect, the agency

promulgating the rule must submit a rule report, which includes a copy

of the rule, to each House of the Congress and to the Comptroller

General of the United States. However, section 808 provides that any

rule for which the issuing agency for good cause finds (and

incorporates the finding and a brief statement of reasons therefor in

the rule) that notice and public procedure thereon are impracticable,

unnecessary or contrary to the public interest, shall take effect at

such time as the agency promulgating the rule determines. 5 U.S.C.

808(2). As stated previously, EPA has made such a good cause finding,

including the reasons therefor, and established an effective date of

December 12, 1997. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

Paperwork Reduction Act

This rule does not contain any information collection requirements

which require OMB approval under the Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Pub. L. 104-113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA directs EPA

to provide Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards. This

action does not involve technical standards. Therefore, EPA did not

consider the use of any voluntary consensus standards.

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 October 26, 1998. 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 action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Ozone.

Dated: August 14, 1998.

William J. Muszynski,

Deputy Regional Administrator, Region 2.

40 CFR part 52 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 et seq.

Subpart FF--New Jersey

2. Section 52.1580 is amended by revising paragraph (b) as follows:

Sec. 52.1580 Conditional approval.

* * * * *

(b) 9 Percent Ozone Plan. New Jersey's December 31, 1996 and

February 25, 1997 submittals for the 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 condition for approvability is as follows: New

Jersey must demonstrate by December 14, 1998 that the 9 percent

emission reduction is 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. New Sec. 52.1581 is added to read as follows:

Sec. 52.1581 Part D approval status.

The conditional interim approval of the New Jersey 15 Percent ROP

Plan (62 FR 35100) submitted on December 31, 1996 and February 25, 1997

by the New

[[Page 45402]]

Jersey Department of Environmental Protection was converted to a

disapproval by a December 12, 1997 letter from EPA to New Jersey.

4. Section 52.1582 is amended by adding new paragraph (e) as

follows:

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

substances) and carbon monoxide.

* * * * *

(e) The State of New Jersey's March 27, 1996 submittal for an

enhanced motor vehicle inspection and maintenance (I/M) program, as

amended on November 27, 1996 and April 1997, is approved pursuant to

section 110 of the Clean Air Act, 42 U.S.C. 7410. However, since New

Jersey failed to start its program by November 15, 1997, the interim

approval granted under the provisions of Section 348 of the National

Highway Systems Designation Act of 1995 (NHSDA), 23 U.S.C. 348, which

allowed the State to take full credit in its 15 Percent ROP Plan for

all the emission reduction credits in its proposal, converted to a

disapproval when EPA sent finding letters to the State on December 12,

1997. The finding letters also informed the state that the underlying

enhanced I/M program approval, pursuant to Section 110 of the Act,

remained in effect as part of the federally enforceable SIP.

[FR Doc. 98-22791 Filed 8-25-98; 8:45 am]

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