# Approval and Promulgation of Air Quality Implementation Plans; New Jersey; Approval of Carbon Monoxide State Implementation Plan Revision; Determination of Carbon Monoxide Attainment

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-23279

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 9, 1999
- **Citation:** 64 FR 48970

## Text

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NJ35-2-196; FRL-6434-1]

Approval and Promulgation of Air Quality Implementation Plans;
New Jersey; Approval of Carbon Monoxide State Implementation Plan
Revision; Determination of Carbon Monoxide Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In today's action, the EPA is determining that the New York-
Northern New Jersey-Long Island carbon monoxide nonattainment area has
attained the carbon monoxide National Ambient Air Quality Standards. As
a consequence of this determination, EPA is proposing to approve a
State Implementation Plan revision submitted by the State of New Jersey
on August 7, 1998. That revision removes New Jersey's oxygenated
gasoline program as a carbon monoxide control measure from the State's
SIP.

DATES: Comments must be received on or before October 12, 1999.

ADDRESSES: All comments should be addressed to: Raymond Werner, Acting
Chief, Air Programs Branch, Environmental Protection Agency, Region 2,
290 Broadway, 25th Floor, New York, NY 10007-1866.
Copies of the State submittal and EPA's technical support document
are available for public inspection during normal business hours, by
appointment, at the following addresses:
Environmental Protection Agency, Region 2, Air Programs Branch, 290
Broadway, 25th Floor, New York, NY 10007-1866.
New Jersey Department of Environmental Protection, Bureau of Air
Quality Planning, 401 East State Street, CN027, Trenton, New Jersey
08625.

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Air Programs

[[Page 48971]]

Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-
3710.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What Action is EPA Taking Today?
2. What is the oxygenated gasoline program and how does it apply in
New Jersey?
3. What is the purpose and content of New Jersey's SIP revision?
4. What is EPA's authority for approving oxyfuel removal?
5. How have the criteria for oxyfuel removal been met?
6. Conclusion
7. Administrative Requirements

1. What Action is EPA Taking Today?

EPA is determining that the New York-Northern New Jersey-Long
Island carbon monoxide (CO) nonattainment area 1 (``the New
York City CO nonattainment area'', ``the New York City area,'' or ``the
area'') has attained the CO National Ambient Air Quality Standards
(NAAQS). EPA is also determining that New Jersey's oxygenated gasoline
(oxyfuel) program is no longer needed to maintain the CO NAAQS. As a
consequence of these determinations, EPA is proposing to approve a
State Implementation Plan (SIP) revision submitted by the State of New
Jersey on August 7, 1998. That revision removes New Jersey's oxyfuel
program as a CO control measure from the State's CO SIP. In today's
action, EPA is proposing to approve removal of the oxyfuel program
because it has been determined that the program is no longer necessary
to keep ambient CO concentrations below the CO NAAQS.
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\1\ This area is comprised of counties in Northern New Jersey,
downstate New York and Southwestern Connecticut. The Connecticut
portion of the area was redesignated to attainment on March 10, 1999
at 64 FR 12005. The remainder of the area is still designated
nonattainment.
---------------------------------------------------------------------------

Under Clean Air Act (CAA) section 211(m), states with certain CO
nonattainment areas are required to implement oxyfuel programs. Under
section 211(m)(6), once such an area subsequently attains the CO NAAQS,
oxyfuel requirements may be removed if it is demonstrated that the
program is not needed for maintaining attainment in that area. Air
quality trends show that CO concentrations throughout the New York City
area have been below the CO NAAQS for more than four years. Complete
monitoring data for the area demonstrating this trend can be found in
the technical support document for this notice.
EPA has determined, through use of EPA's MOBILE computer model and
air quality dispersion modeling, that the oxyfuel program is no longer
necessary for New Jersey because it has been demonstrated through
technical analyses that the CO NAAQS will not be violated anywhere in
the area if the program is removed as a control strategy. By using
these modeling tools, EPA and New Jersey have determined that improved
CO levels are attributable primarily to three sources of emission
reductions: (1) turnover of vehicle fleets in the area to more
sophisticated cleaner technology vehicles; (2) implementation of
reformulated gasoline year round; and (3) the recent implementation of
the enhanced vehicle inspection and maintenance (I/M) program in New
York (enhanced I/M in New Jersey is anticipated to begin this winter).
This modeling, which is discussed in section 5. C of this notice and
detailed in the technical support document, supports the conclusion
that levels of CO meeting the NAAQS are able to be maintained without
the wintertime oxyfuel program in place.

2. What is the Oxygenated Gasoline Program and How Does it Apply to
New Jersey?

The oxygenated gasoline (oxyfuel) program is designed to reduce CO
pollution from gasoline powered vehicles including passenger cars,
sport utility vehicles and light trucks, which, combined, are
significant contributors of CO emissions. EPA established a NAAQS for
CO for the protection of human health. See 40 CFR 50.8; 50 FR 37501
(Sept. 13, 1985). Inhalation of CO results in inhibition of the blood's
capacity to carry oxygen to organs and tissues. Persons with heart
disease, infants, elderly persons, and individuals with respiratory
diseases are particularly sensitive to CO. Effects of CO on healthy
adults include impaired exercise capacity, visual perception, manual
dexterity, learning functions, and ability to perform complex tasks.
The Clean Air Act (CAA) sets forth a number of SIP requirements for
states with areas designated as nonattainment for the CO NAAQS. Section
211(m) of the CAA requires states with CO nonattainment areas, having
design values of 9.5 parts per million (ppm) CO or above for any two-
year period after 1989, to implement oxyfuel programs. The requirement
for an oxyfuel program is to apply during the high CO season, which is
generally during the colder winter months when cars tend to have higher
tailpipe CO emissions. Oxyfuel programs require that, during the high
CO season, gasoline contain at least 2.7% oxygen by weight. This
requirement was intended to assure more complete gasoline combustion,
thus achieving a reduction in tailpipe emissions.
The requirement for an oxyfuel program applies to certain areas in
New Jersey because portions of the State are included in the New York
City CO nonattainment area which had a design value for CO above 9.5
ppm. The New Jersey nonattainment area includes the counties of Bergen,
Essex, Hudson, Union, and parts of Passaic. Specifically in Passaic
County it includes the cities of Clifton, Paterson, and Passaic.
Because the CAA section 211(m) requirement applies to the larger of the
Consolidated Metropolitan Statistical Areas (CMSA) or the metropolitan
statistical area in which the nonattainment area is located, the
oxyfuel requirement for the area applies throughout the larger CMSA.
New Jersey's portion of the larger CMSA, within which the sale of
oxyfuel is required, consists of the following counties: Bergen, Essex,
Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic (the
entire county), Somerset, Sussex, Union and Warren.
On November 15, 1992, New Jersey submitted to EPA its oxyfuel
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). 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 oxyfuel
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. On February 12, 1996, EPA approved New
Jersey's oxyfuel program into the SIP for the control period November 1
through the last day of February. 61 FR 5299. On July 25, 1996, EPA
approved oxyfuel programs for Connecticut and New York at 61 FR 38574
and 61 FR 38594, respectively. EPA approved those oxyfuel programs for
the New York City area for the same four-month period. At the same
time, EPA made a final determination that November 1 through the end of
February is the control period when the New York City area is prone to
high ambient CO concentrations. 61 FR 38594.

3. What is the Purpose and Content of New Jersey's SIP Revision?

New Jersey submitted a proposed CO SIP revision to EPA on August 7,
1998. That submittal proposed to revise the SIP to remove New Jersey's
oxyfuel program as a CO control measure. The

[[Page 48972]]

SIP revision documents that the New Jersey Department of Environmental
Protection (NJDEP) held a public hearing on August 11, 1997 to take
comment on the State's proposed rulemaking to remove the State
requirements for its oxyfuel program in Northern New Jersey. On July
17, 1998, the NJDEP filed the adoption of its rulemaking proposal with
the State's Office of Administrative Law. The adopted rulemaking was
published in the New Jersey Register on August 17, 1998. 30 N.J.R.
3025.
The August 7, 1998 CO SIP revision contains the following elements,
on which EPA is proposing action today:
(1) Air quality and ``hot spot'' modeling data demonstrating that
the New Jersey portion of the New York City nonattainment area attains
the NAAQS for carbon monoxide;
(2) The removal of the requirements for the oxyfuel program in
Northern New Jersey.
That submittal also contained an update to the State's carbon
monoxide attainment demonstration and an update to the carbon monoxide
emission inventory. EPA is not taking action on these updates at this
time because they are not directly related to, or required for, the
action EPA is proposing today. Rather, these updates will be more
appropriately included in an eventual SIP change to redesignate
Northern New Jersey for attainment of the CO NAAQS. New Jersey's August
7, 1998 SIP submittal does not request redesignation, although the
State has expressed an interest in redesignating the nonattainment area
to attainment in the future. EPA will act on these updates after New
Jersey formally requests redesignation.
New Jersey's SIP revision and today's action primarily concern the
removal of requirements for the oxyfuel program in Northern New Jersey.
Removal of the oxyfuel program is supported by the State's
demonstration, using monitored air quality data and vehicle emission
and air dispersion modeling data, that the area is attaining the CO
NAAQS, and will continue to attain even without implementation of the
oxyfuel program in Northern New Jersey. In addition New Jersey's
submittal provides analysis of multi-state air quality and impacts of
oxyfuel removal in New Jersey on the New York portion of the New York
City area. This includes an analysis by New Jersey of certain congested
intersections in New York City. EPA has supplemented this analysis,
specifically with respect to the New York intersection analysis, to
confirm that the area will continue to attain the CO NAAQS with the
removal of oxyfuel. Based on the analyses, the area has been
demonstrated to attain the CO NAAQS without oxyfuel in New Jersey. For
further detail regarding analysis of the technical demonstration, the
reader is referred to section 5 below and also to the technical support
document for this proposal.
Based on EPA's determination that the New York City area is
attaining the CO NAAQS, and the demonstration of maintenance for the
area, EPA is proposing to approve New Jersey's SIP revision, submitted
on August 7, 1998, which removes the State's oxyfuel program from its
CO SIP.

4. What is EPA's Authority for Approving Oxyfuel Removal?

Section 211(m) of the Clean Air Act (CAA) generally requires states
to adopt oxygenated gasoline programs for certain areas that, as of
1990, failed to meet the National Ambient Air Quality Standard (NAAQS)
for carbon monoxide (CO). Section 211(m)(6) adds, however, that,
``Nothing in this subsection shall be interpreted as requiring an
oxygenated gasoline program in an area which is in attainment for
carbon monoxide. * * *'' (emphasis added).
In EPA's redesignation of the Camden County, New Jersey CO
nonattainment area, EPA elaborated on its interpretation of section
211(m)(6). 60 FR 62741 (Dec. 7, 1995). In that rulemaking, EPA
explained, ``Whether an area is `in attainment' depends solely on a
determination of whether an area is attaining the NAAQS (a
determination based on the air quality of the area) * * *.'' 60 FR
62744. EPA concluded that once it determines that a CO nonattainment
area is actually attaining the CO NAAQS, and the area demonstrates that
it does not need oxyfuel to maintain the NAAQS, section 211(m) no
longer requires a state to adopt an oxyfuel program into its state
implementation plan (SIP) so long as the area continues to maintain the
CO standard. Thus, New Jersey was not required in the first instance to
adopt an oxyfuel program for Camden County because the area was
attaining the CO NAAQS, and the State demonstrated that the area could
maintain the standard without additional emissions reductions.
In the Camden rulemaking, EPA also briefly addressed the
applicability of section 211(m)(6) to those areas attaining the CO
NAAQS that had already adopted an oxyfuel program:

Where a state that is in fact attaining the CO NAAQS has an
oxygenated gasoline program as part of an approved SIP, the program
would remain in the SIP; section 211(m)(6) only would allow the
state to submit a SIP revision to remove the program, and then only
if it is not needed for maintenance and its removal complied with
section 110(l). Also the entire nonattainment area must be actually
achieving the CO NAAQS before oxygenated gasoline would not be
required in any portion of the MSA or CMSA in which an area is
located. Furthermore, unless the area is redesignated to attainment,
the oxygenated gasoline program requirement would again become
effective upon a subsequent violation of the standard.

60 FR 62745.
New Jersey has already adopted an oxyfuel program for the Northern
New Jersey nonattainment area. In order to remove the program, the
above criteria must be met. The following section evaluates New
Jersey's request to drop the oxyfuel program for the Northern New
Jersey nonattainment area against these criteria.

5. How Have the Criteria for Oxyfuel Removal Been Met?

To determine if a state can remove its oxyfuel program prior to
redesignation for attainment, certain criteria must be met. These
criteria, which are derived directly from our policy for section
211(m)(6) (discussed above in section 4.), are stated below. Following
each is a brief discussion of how New Jersey has met these criteria. A
more detailed technical discussion can be found in the technical
support document for this Federal Register document.

A. Is the entire designated nonattainment area actually attaining the
CO NAAQS?

The entire New York City CO nonattainment area has attained the CO
NAAQS since 1995. The applicable CO NAAQS is 9.0 ppm averaged over an
eight-hour period. The last CO NAAQS violation occurred in
1994.2 A summary and short discussion of the air quality
monitoring data which shows that the entire three-state area attained
the CO NAAQS follows for each state. Complete data and a detailed
discussion of it can be found in the technical support document for
this notice.
---------------------------------------------------------------------------

\2\ A violation occurs when two non-overlapping exceedances are
recorded at the same monitoring site during the same calendar year.
An exceedance occurs when an average CO concentration greater than
or equal to 9.5 ppm is recorded over an eight-hour period.
---------------------------------------------------------------------------

1. Monitored Air Quality in New Jersey
Six carbon monoxide (CO) monitors meeting EPA siting criteria are
maintained in the Northern New Jersey portion of the New York City CO
nonattainment area. Locations for these monitors were selected to
assure good representation of both CO exposure to

[[Page 48973]]

people and the maximum CO concentrations which would occur. Monitoring
stations (one each) are located in the following cities and towns: Fort
Lee, Hackensack, Newark, Jersey City, North Bergen and Elizabeth.
Monitoring data from these locations is collected and quality-
assured in accordance with 40 CFR part 58. In 1994 New Jersey
experienced two violations of the CO NAAQS. These violations were
recorded at monitoring stations in North Bergen and Elizabeth in
Northern New Jersey (see table 5.1). Since 1995, no subsequent
violations were recorded in Northern New Jersey. In accordance with
EPA's protocol for determining CO violations, the following table lists
the second highest recorded CO concentrations, in parts per million
(ppm), at each monitoring station for the calendar years 1994 through
1998:

Table 5.1--New Jersey CO Air Quality Data Summary (Second Maxima)
[Parts per million CO]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fort Lee Hackensack Newark Jersey City North Bergen Elizabeth
--------------------------------------------------------------------------------------------------------------------------------------------------------
1994.................................................... 5.3 7.0 6.0 5.9 *10.7 *11.3
1995.................................................... 5.0 4.8 5.3 6.2 8.1 7.7
1996.................................................... 3.5 4.0 3.8 4.9 6.7 6.0
1997.................................................... 3.4 6.1 3.8 4.3 6.7 5.1
1998.................................................... 3.7 3.7 2.6 4.1 5.6 5.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Indicates the second highest concentration exceeded the CO NAAQS, triggering a violation.

2. Monitored Air Quality in New York
Eight CO monitors meeting EPA siting criteria have been maintained
over the period 1994 to 1998 in the New York portion of the New York
City CO nonattainment area. Locations for these monitors were selected
to assure good representation of both CO exposure to people and the
maximum CO concentrations which would occur. Monitoring stations are
located at the following areas: Manhattan (4), Bronx (1), Brooklyn (2)
and Nassau County (1).
Monitoring data from these locations is collected and quality-
assured in accordance with 40 CFR 58. Since 1994, no violations of the
CO NAAQS were recorded in the New York portion of the area. In
accordance with EPA's protocol for determining CO exceedances, the
following table lists the second highest recorded CO concentrations, in
ppm, at each monitoring station for the calendar years 1994 through
1998:

Table 5.2--New York CO Air Quality Data Summary (Second Maxima)
[Parts per million CO]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bot.
Gardens Downtown Park Slope Nassau E 57th St. Canal St. E 59th St. E 34th St.
Bronx Brooklyn Brooklyn County Manhattan Manhattan Manhattan Manhattan
--------------------------------------------------------------------------------------------------------------------------------------------------------
1994.................................................... () 6.4 4.5 5.4 4.9 7.2 7.3 6.7
1995.................................................... 3.6 7.9 5.8 5.0 5.4 7.0 7.9 6.5
1996.................................................... 3.3 6.1 3.4 4.9 3.9 4.4 6.3 5.0
1997.................................................... 3.5 4.3 2.7 4.7 3.2 4.2 6.1 3.8
1998.................................................... 3.2 4.1 2.4 4.0 4.0 4.2 5.8 3.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
No data was available at this site for this year.

3. Monitored Air Quality in Connecticut
Two CO monitors meeting EPA siting criteria are maintained in the
Southwest Connecticut portion of the New York City CO nonattainment
area. Locations for these monitors were selected to assure good
representation of both CO exposure to people and the maximum CO
concentrations which would occur. Monitoring stations are located in
the following cities: Bridgeport and Stamford.
Monitoring data from these locations are collected and quality-
assured in accordance with 40 CFR part 58. Since 1994, no violations of
the CO NAAQS were recorded in the Southwest Connecticut portion of the
area. In accordance with EPA's protocol for determining CO exceedances,
the following table lists the second highest recorded CO
concentrations, in ppm, at each monitoring station for the calendar
years 1994 through 1998:

Table 5.3--Connecticut CO Air Quality Data Summary (Second Maxima)
[Parts per million CO]
------------------------------------------------------------------------
Bridgeport Stamford
------------------------------------------------------------------------
1994.......................................... 5.8 6.2
1995.......................................... 4.9 5.4
1996.......................................... 3.0 4.1
1997.......................................... 4.0 5.1
1998.......................................... 2.8 3.8
------------------------------------------------------------------------

B. Is the program to be removed already approved into the SIP? If so,
has the state submitted a SIP revision request, which complies with CAA
section 110(l), to remove the oxyfuel program from the SIP?

The oxyfuel program was approved into the New Jersey SIP on
February 12, 1996. Subsequently, New Jersey submitted a SIP revision on
August 7, 1998 to remove New Jersey's oxyfuel program as a CO control
measure from the SIP. CAA section 110(l) requires that a state's SIP
revision cannot interfere with a state's attainment or rate of progress
toward attainment. EPA has determined that New Jersey's August 7, 1998
SIP revision meets the requirements of section 110(l) because it
demonstrates that removal of the oxyfuel program from the SIP will not
interfere with any state's CO attainment (see discussion in the
following

[[Page 48974]]

subsection). This action will also not interfere with any state's
attainment of any other criteria pollutants.

C. Is maintenance of the CO NAAQS, without implementation of oxyfuel,
demonstrated for the entire area?

Attainment has been demonstrated in the entire area without the use
of oxygenated fuels. New Jersey submitted an attainment demonstration
which shows that each of their previously modeled SIP intersections
attains the CO standard even if oxyfuel is removed. In addition, New
Jersey performed an analysis for certain congested intersections in New
York City demonstrating attainment of the CO standard at those
intersections without the oxyfuel program in Northern New Jersey. A
summary and discussion of the modeled air quality findings for the New
Jersey, New York and Connecticut portions of the area follows.
Additional details regarding these analyses can be found in the
technical support document for this notice.
1. Modeled Air Quality in New Jersey
New Jersey's 1998 CO SIP submittal included an updated attainment
demonstration showing how the State can attain the CO standard without
the oxyfuel program in New Jersey. This demonstration included all of
the locations which were originally modeled in New Jersey's 1992 CO
SIP, submitted on November 15, 1992. All modeling procedures employed
by New Jersey in its current analysis are the same as those followed in
the State's 1992 CO SIP. The modeling protocol employed by the State
includes use of a vehicle emissions model and an ambient air dispersion
model.
In-use automobile emissions were determined through the use of the
most recent EPA-approved mobile emissions computer model, ``MOBILE5b.''
This model takes into account local area parameters such as elevation
and temperature, and vehicle information including registration
distribution, mileage accumulation fractions, fuel type, vehicle
operation modes, and type of inspection program, if any. Data results
from this modeling analysis are then used as input to an ambient air
dispersion model. CAL3QHC, which is the most current EPA-approved plume
dispersion model, uses this information as well as street
intersections, traffic signal timing, road type, and monitored
background information as data inputs. Based on these inputs, CAL3QHC
predicts maximum CO concentrations, in parts per million, for ``worst
case'' meteorological conditions at the locations of concern.
Additional details regarding this and additional modeling
demonstrations considered in EPA's proposed approval can be found in
the technical support document for this notice.
Twenty-five locations in five counties in the Northern New Jersey
portion of the New York City area were modeled. The results of modeling
done for Northern New Jersey demonstrate no violations of the CO NAAQS
at any of the modeled locations when oxyfuel is removed. Results show
only 3 intersections had modeled CO concentrations above 7.2 ppm. The
maximum predicted concentration was 8.0 ppm. Additional details
regarding these results can be found in the technical support document.
2. Modeled Air Quality in New York
In order to demonstrate that removal of oxyfuel in Northern New
Jersey would not cause or contribute to exceedances of the CO NAAQS in
the New York portion of the New York City area, New Jersey analyzed
certain locations in New York. These locations were chosen by EPA, and
agreed upon by both New York, New Jersey, Connecticut and EPA Regions 1
and 2 during several meetings, to be traffic intersections which have
historically demonstrated the highest modeled CO concentrations (see
New York's November 15, 1992 CO SIP submittal), and which are
representative of CO exposure in New York's portion of the area.
Confirmation of agreement to this protocol was detailed in a letter
dated August 22, 1997, from EPA Regional Administrator Jeanne M. Fox to
NJDEP Commissioner Robert C. Shinn. The agencies ultimately agreed upon
a total of 11 intersections located over six counties. Additional
detail on these analysis locations can be found in the technical
support document.
New Jersey's 1998 CO SIP revision could not fully demonstrate
attainment at all 11 New York locations under then-current conditions.
Since that analysis was performed, New York's enhanced I/M program
began being implemented. As mentioned previously, this program can
contribute significantly to reductions of CO. Consequently, EPA chose
to reconsider New Jersey's 1998 submittal to take into account the
effects of New York's enhanced I/M program on predicted CO
concentrations at the New York locations originally predicted to exceed
the CO NAAQS. The results of this re-analysis show that all 11 New York
locations will now continue to attain the CO NAAQS once oxyfuel is
removed. Details regarding the analyses for New York can be found in
the technical support document.
3. Modeled Air Quality in Connecticut
Prior to today's action, EPA approved the redesignation of the
Southwest Connecticut portion of the New York City CO nonattainment
area. As part of its action to approve Connecticut's redesignation, EPA
reviewed a maintenance demonstration for Southwest Connecticut. EPA
determined that CO maintenance is demonstrated in Southwest Connecticut
without reliance on oxyfuel implementation anywhere in the New York
City CMSA. Additional detail on the CO maintenance demonstration
analysis for Connecticut can be found at 63 FR 58637 (November 2, 1998)
and 64 FR 12005 (March 10, 1999).

6. Conclusion

EPA is determining that the New York-Northern New Jersey-Long
Island carbon monoxide nonattainment area has attained the carbon
monoxide National Ambient Air Quality Standards. As a consequence of
this determination, and our determination that the criteria listed in
section 5 of this notice have been adequately met, EPA is proposing to
approve New Jersey's August 7, 1998 SIP revision to remove the State's
oxygenated gasoline program from the federally approved State
Implementation Plan. EPA's authority to approve removal of a state's
oxyfuel program is set forth at Clean Air Act section 211(m)(6). EPA
has determined that the criteria of section 211(m)(6) have been
satisfied and removal of the oxyfuel program at this time is
appropriate.
EPA can only approve removal of the oxyfuel program in New Jersey,
pursuant to CAA section 211(m)(6), because of EPA's determination that
the area is actually attaining the CO NAAQS. In the unlikely event that
the New York City CO nonattainment area subsequently records a
violation of the CO NAAQS, EPA's basis for approval of oxyfuel removal
would no longer exist and the requirements of section 211(m) would
again become effective for New Jersey. This means that the State would
need to implement an oxyfuel program in accordance with the
requirements of CAA section 211(m).

7. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''

[[Page 48975]]

B. Executive Orders on Federalism

Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
On August 4, 1999, President Clinton issued a new executive order
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)),
which will take effect on November 2, 1999. In the interim, the current
Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism
still applies. This rule will not have a substantial direct effect on
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 12612.
The rule affects only two states, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This proposed SIP revision is not subject to
E.O. 13045 because it proposes approval of a state program revision,
and it is not economically significant under E.O. 12866.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) 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 governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the 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 create
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
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).

F. 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 proposed approval 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 proposes
to approve amendments to 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations.

[[Page 48976]]

Dated: August 31, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 99-23279 Filed 9-8-99; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-23279. Public record. Not legal advice.