Approval and Promulgation of Implementation Plans; New Jersey 15 Percent Rate of Progress Plans, Recalculation of 9 Percent Rate of Progress Plans and 1999 Transportation Conformity Budget Revisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ33-1-190 FRL-6237-1]

Approval and Promulgation of Implementation Plans; New Jersey 15

Percent Rate of Progress Plans, Recalculation of 9 Percent Rate of

Progress Plans and 1999 Transportation Conformity Budget Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing

approval of a New Jersey State Implementation Plan (SIP) revision

involving the State's Ozone plan. Specifically, EPA's proposed approval

includes the 15 Percent Rate of Progress (ROP) Plans, recalculation of

the 9 Percent ROP Plans, updates to the 1990 base year emission

inventories, 1996 and 1999 projection year emission inventories, and

the 1999 transportation conformity budgets. 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

1-hour national ambient air quality standard for ozone. In addition, a

final approval of this SIP revision would correct the deficiency which

led EPA to disapprove on December 12, 1997 New Jersey's 15 Percent ROP

Plans. Consequently, the sanction and Federal Implementation Plan (FIP)

process that was started by EPA's disapproval would terminate when EPA

takes action to approve in final form, today's proposed approval. The

clocks associated with the State's failure to implement the enhanced

inspection and maintenance program continue to run.

DATES: Comments must be received on or before March 31, 1999.

ADDRESSES: All comments should be addressed to: Raymond Werner, Acting

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

Office, 290 Broadway, New York, New York 10007-1866.

Copies of the state submittal are available at the following

addresses for inspection 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 and Energy,

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. Introduction/Background

Section 182 of the Clean Air Act (Act) specifies what states are

required to submit to EPA for areas classified as nonattainment for

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

Jersey's plan designed to meet several of these Act requirements,

including all of those which were subsequently revised by New Jersey

and are being proposed for action today. On June 30, 1997 (62 FR

35100), EPA either approved or gave conditional interim approval to

these requirements. The reader is referred to these actions for further

details.

On December 12, 1997, EPA announced by letter that the conditional

approval of New Jersey's 15 Percent ROP Plans had converted to a

disapproval because the enhanced inspection and maintenance program,

which was part of the State's plans, did not start as scheduled and

resulted in an emission reduction shortfall. This disapproval applied

to the New Jersey portions of the two severe ozone nonattainment areas:

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 nonattainment area (NAA) and the Trenton NAA.

II. State Submittal

On February 10, 1999, Commissioner Shinn of the New Jersey

Department of Environmental Protection (NJDEP) submitted a request to

EPA to process its revision of the 15 Percent ROP portion of its ozone

SIP. This SIP revision includes: updates to the 1990 base year emission

inventories, 1996 and 1999 projection year emission inventories, 15

Percent ROP Plans and the 1999 transportation conformity budgets. The

intended effect is to provide sufficient emission reductions to address

the shortfall.

A. Revisions to the 1990 Base Year and 1996 and 1999 Projection Year

Emission Inventories

As part of New Jersey's efforts to continually improve the accuracy

of its emission estimates, the NJDEP identified an update/correction to

the estimate of emissions from landfills which affects the 1990 base

year and 1996 and 1999 projection year emission inventories. This

update/correction is the result of three changes: (1) revised modeling

guidance from the USEPA for estimating landfill emissions; (2)

correction of errors identified in the NJDEP's landfill emissions data

base; and (3) updated landfill emissions data. The changes to these

inventories are summarized in Table 1.

Table 1.--1990 VOC Emission Inventories, and 1996 and 1999 VOC Projection Emission Inventories

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

Northern New Jersey NAA (VOC tons/ Trenton NAA (VOC tons/day)

day) --------------------------------------

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

1990 1996 1999 1990 1996 1999

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

Major Point Sources............... 238.02 211.93 216.28 111.68 85.87 87.93

Minor Point Sources............... 170.24 162.81 166.82 63.49 61.41 62.61

Area Sources...................... 115.52 117.29 118.01 33.78 35.53 36.36

Highway Mobile Sources............ 296.66 246.71 242.41 103.45 89.22 88.17

Off-Highway Mobile Sources........ 136.58 139.82 141.44 45.76 48.13 49.34

Biogenic Sources \1\.............. 209.66 ........... ........... 203.20 ........... ...........

Use of Pre-1990 Banked ERC........ ........... 5.00 5.00 ........... 3.00 3.00

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

[[Page 9953]]

Total......................... 1166.69 883.56 889.96 561.35 323.16 327.42

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

\1\ The State did not account for biogenic sources in its 1996 and 1999 Projections.

Using the revised emission inventories, New Jersey recalculated

target emission reductions. They used the same procedure used in its

earlier 15 Percent ROP Plans. A detailed discussion of this procedure

is contained in the April 30, 1997 Federal Register (62 FR 23413).

Table 2 summarizes the original and revised 15 Percent ROP

calculations.

Table 2.--Original and Revised 15 Percent ROP Plan Calculations

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

Original 15% plan Revised 15% plan

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

Northern Northern

Component of the plan New Jersey Trenton NAA New Jersey Trenton NAA

NAA VOC VOC (tons/ NAA VOC VOC (tons/

(tons/day) day) (tons/Day) day)

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

1990 Base Year Emission Inventory........................... 1173.96 564.67 1166.69 561.35

1990 Baseline Emission Inventory............................ 958.19 359.90 950.91 356.59

Non-Creditable Emission Reductions.......................... 69.18 21.17 69.18 21.17

1990 Adjusted Baseline Emission Inventory................... 889.01 338.74 881.73 335.42

15% Reduction Target........................................ 133.35 50.81 132.26 50.31

1996 Target Emission Inventory.............................. 755.66 287.93 749.47 285.11

1996 Projected Emission Inventory........................... 885.48 325.11 883.56 323.16

Required 15 Percent Reductions.............................. 129.82 37.18 134.10 38.05

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

Based on EPA's review of the methodology New Jersey used to make

these calculations, EPA proposes to approve the revisions to the 1990

base year VOC emission inventories, and 1996 and 1999 projection year

VOC emission inventories. In addition, EPA proposes to approve the 15

Percent ROP calculations.

B. New 15 Percent ROP Plans

New Jersey has provided a plan to achieve the reductions required

for the two nonattainment areas. The following is a concise description

of each control measure New Jersey plans on using to achieve the

emission reductions in its 15 Percent ROP Plans. All the State measures

have been adopted and submitted as SIP revisions except for

administrative changes to New Jersey's Low Emission Vehicle Program.

The revisions to New Jersey's Low Emission Vehicle Program are in the

proposal stage and are needed to formalize New Jersey's opt-in to the

National Low Emission Vehicle Program which is included in the 15

Percent ROP Plans. EPA anticipates that New Jersey will submit these

administrative changes by March 1, 1999. EPA will not include these

emission reductions in the final action unless New Jersey has submitted

them in final form.

Table 3.--Summary of Revised 15 Percent ROP Plans

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

Northern New

Jersey NAA VOC Trenton NAA

(tons/day) VOC (tons/day)

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

Required VOC reductions to meet 15 134.10 38.05

Percent Plan...........................

Previous 15 Percent ROP Plan measures:

Mobile Source control measures:

Tier 1 vehicles................. 14.85 5.53

Reformulated gasoline--on 45.98 16.77

highway........................

Reformulated gasoline--off 4.37 1.36

highway........................

Enhanced Inspection and 0.00 0.00

Maintenance....................

Stationary source control measures:

Barge loading................... 22.75 1.23

Subchapter 16................... 16.74 3.79

NJ consumer products rule....... 5.98 1.84

Federal HON rule................ 0.12 0.06

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

Total VOC reductions........ 110.79 30.58

Shortfall............................... 23.31 7.47

New Control Measures:

[[Page 9954]]

Mobile Source control measures:

National Low Emission Vehicle 0.48 0.18

program........................

Federal Off highway small 16.16 5.70

engines........................

Revisions to Basic I/M program.. 2.47 1.10

Stationary Source control measures:

NJ Landfill controls............ 0.37 0.12

NJ Architectural Coatings rule.. 4.91 1.51

Federal Architectural Coatings 3.22 1.15

rule...........................

Federal Autobody Refinishing 13.23 3.44

rule...........................

VOC reductions from new control measures 40.84 13.20

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

Total VOC reductions from all 151.63 43.78

measures...........................

Surplus................................. 17.53 5.73

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

C. Measures Achieving the Projected Reductions

(1) Previous 15 Percent ROP Plan Measures

New Jersey included all of the control measures previously

contained in its 15 Percent ROP Plan in the new 15 Percent ROP Plans

except enhanced inspection and maintenance (I/M). New Jersey assumed

that no emission reductions from enhanced I/M would occur by November

15, 1999 and so no credit is being taken for these initially

anticipated reductions. These measures are summarized in Table 3. New

Jersey is moving forward with implementing the Enhanced I/M program

which should start inspecting vehicles in late 1999, thus providing

reductions for years beyond 1999. The reader is referred to the

original Federal Register documents for details on these non-I/M

control measures.

(2) New Control Measures

National Low Emission Vehicle Program

EPA proposed the National Low Emission Vehicle (NLEV) Program in

September 1995 and promulgated a supplemental final rule for the NLEV

Program on January 7, 1998 (63 FR 925). The program consists of the

sale of low emission vehicles (LEVs) beginning with model year 1999 in

the Ozone Transport Region (OTR), which includes New Jersey, and model

year 2001 for the rest of the country (except California and other

states implementing the California LEV program). Under the NLEV

program, the emissions from all cars manufactured by an auto maker are

averaged together and must meet an average emission standard. This

average emission standard gets progressively more stringent, until in

2001 that average would correspond to the emissions that would result

if 100 percent of the vehicles met low emission vehicle standards.

While the enforceability of the NLEV Program is the responsibility of

EPA, New Jersey must make some administrative changes to its SIP. These

were proposed in November 1998 and the changes need to be adopted and

submitted to EPA by March 1, 1999. The 15 Percent ROP Plans take credit

for only one year of the NLEV program, that is, through 1999. EPA

agrees with the calculated emission reductions associated with this

program. EPA proposes to approve reliance on these reductions, but EPA

will not include them in the final action unless New Jersey has

submitted them in final form.

Federal Nonroad Spark Ignition Engines

On May 16, 1994, EPA published a notice of proposed rulemaking for

small nonroad engines (59 FR 25399). The Federal Register notice,

``Control of Air Pollution; Emission Standards for New Nonroad Spark-

Ignition Engines at or Below 19 Kilowatts.'' EPA estimates the proposed

emission standards will result in a 32 percent reduction in VOC

emissions and a 14 percent reduction in carbon monoxide emissions

nationally, by the year 2020 when complete engine turnover is

projected. In the July 3, 1995 Federal Register (60 FR 34581), EPA

promulgated the first phase of the regulations to control emissions

from new nonroad spark-ignition engines. This regulation is contained

in the Code of Federal Regulations (CFR), Title 40, ``Part 90--Control

of Emissions From Nonroad Spark-Ignition Engines.'' The second phase

will be adopted in the future.

EPA has determined that the first phase of the new nonroad

standards will cause a reduction of VOC emissions by 13.1 percent in

1997, 19.5 percent in 1998 and 23.9 percent in 1999 nationally. New

Jersey applied these percentages to New Jersey's specific engine

population, and calculated that the resulting VOC emission reductions

in 1999 will be 16.16 tons per day in the Northern New Jersey

Nonattainment area and 5.70 tons per day in the Trenton Nonattainment

area. EPA agrees with the calculated emission reductions associated

with this program.

Revisions to Basic Inspection and Maintenance Program

Since 1990, New Jersey has made several changes to its basic (I/M)

program. These included increased penalties and enforcement for failing

to have valid inspection sticker, adding a test for the integrity of a

vehicle's gas cap at centralized inspection stations, and adding a

visual inspection of the gas cap and evaporative emission control

system at decentralized inspection stations. New Jersey also changed

the inspection frequency from annual to biennial in order to facilitate

installation of test equipment needed for the enhanced I/M program. EPA

final approval of this SIP revision is described in 63 FR 45402, August

26, 1998. The changes in the inspection frequency reduces the emission

benefits from the original program, but the additional test features,

which were added, resulted in a net increase in emission reductions.

EPA agrees with the emission reductions calculated by New Jersey. The

emission reductions from this control measure have already been

achieved.

New Jersey Architectural Coatings Rule

New Jersey developed an architectural coatings regulation,

Subchapter 23 ``Prevention of Air Pollution From Architectural Coatings

and Consumer Products'' which was originally adopted in 1989 and

subsequently revised. EPA

[[Page 9955]]

approved Subchapter 23 as part of the SIP on May 23, 1993 (58 FR

29975). The regulation took effect in January 1990 for Group 1 products

and March 1990 for Group 2 products. The regulation allowed coatings

manufactured before 1990 to be sold until 1993. Because of the

uncertainty in determining when the emission reductions occurred, New

Jersey treated this source category as uncontrolled in the 1990 base

year emission inventory and did not take credit in the original 15

Percent ROP Plans. As part of this SIP revision, New Jersey reassessed

the emission reductions which would be achieved from this regulation.

For traffic paints and high performance maintenance coatings, New

Jersey took no emission reduction credit because they were already

included in the 1990 base year. For the remaining categories subject to

Subchapter 23 limits, New Jersey calculated the emission reductions

since all coatings sold after 1993 were required to comply.

EPA agrees with the calculated emission reductions. The emission

reductions from this control measure have already been achieved.

New Jersey Landfill Controls

New Jersey has implemented a landfill closure program which

requires the installation of a gas collection system and control

system. EPA approved this as part of the SIP on June 29, 1990 (55 FR

26687). The requirements only become applicable upon closure of the

landfill and, therefore, the emission reductions from landfills closed

after 1990 are creditable for 15 Percent ROP Plan purposes. EPA agrees

with the calculated emission reductions. The emission reductions from

this control measure have already been achieved.

Federal Architectural Coatings Rule

EPA developed national regulations for architectural coatings as

part of the larger requirement to control VOC emissions from certain

categories of consumer and commercial products. EPA proposed the

``National Volatile Organic Compound Emission Standards for

Architectural Coatings'' (Architectural rule) on June 25, 1996 (61 FR

32729), and September 3, 1996 (61 FR 46410). On September 11, 1998 (63

FR 48848), EPA promulgated 40 CFR part 59, subpart D--``National

Volatile Organic Compound Emission Standards For Architectural

Coatings.'' The reader is referred to these Federal Registers for

greater detail.

New Jersey is taking credit only for the emission reductions

associated with those categories of coatings where EPA's national rule

goes beyond New Jersey's rule. EPA agrees with the calculated emission

reductions and EPA guidance permits these emission reductions to be

used in 15 and 9 Percent ROP Plans.

Federal Autobody Refinishing Rule

EPA developed national regulations for Automobile refinish coatings

and coating components. These were proposed on April 30, 1996 (61 FR

19005) and on September 11, 1998 (63 FR 48806), EPA promulgated 40 CFR

part 59, subpart B--``National Volatile Organic Compound Emission

Standards for Automobile Refinish Coatings'' (subpart B). The reader is

referred to these Federal Registers for greater detail. EPA agrees with

the calculated emission reductions. The emission reductions from this

control measure will be achieved by November 15, 1999.

15 Percent ROP Plan Evaluation

New Jersey has identified control measures necessary for achieving

the required emission reductions and in addition, they provided surplus

reductions. All the measures have been adopted and are either

implemented or will be shortly. EPA is proposing to find that the 15

Percent ROP Plans contain the necessary measures as identified in Table

3 to achieve the required emission reductions. The original 15 Percent

ROP Plans demonstrated that the emission reductions would be achieved

by November 15, 1999. The new 15 Percent ROP Plans will also achieve

these reductions by November 15, 1999. Therefore, EPA is proposing

approval of the 15 Percent ROP Plans.

D. The 9 Percent ROP Plans and Transportation Conformity Budgets

EPA's June 30, 1997 (62 FR 35100) approval of New Jersey's 9

Percent ROP Plans was conditioned on the State submitting revised

emission reduction calculations. The purpose of these calculations was

to ensure that New Jersey correctly accounted for the amount of

emission reductions attributable to its enhanced I/M program and

appropriately adjusted the ROP plans to make use of the surplus

emission reductions that these plans identified in the event that the

enhanced I/M program provided less emission reductions than

anticipated. Since the enhanced I/M program will not begin operation

until late 1999 at the earliest, it was necessary for New Jersey to

submit revised emission reduction calculations that removed and

replaced all of the emission reductions that had been attributed to the

enhanced I/M program for years prior to 2000. New Jersey fulfilled this

condition in a July 30, 1998 letter from Commissioner Robert C. Shinn,

Jr. to EPA Region 2 Deputy Regional Administrator William J. Muszynski.

Table 4, which appears below, summarizes the State's recalculated 9

Percent ROP Plans. As indicated in the table, these recalculations show

that New Jersey will still show 9 percent reductions by November 15,

1999, without relying on any credit from enhanced I/M.

Table 4.--Summary of New Jersey's 9 Percent ROP Plans

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

Northern New Jersey NAA (tons/ Trenton NAA (tons/day)

day) -------------------------------

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

VOC NOX VOC NOX

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

Required VOC reductions to meet 9 Percent Plan.. 95.91 .............. 41.98 ..............

Creditable Reductions

Surplus reductions from 15 Percent ROP Plans.... 17.53 .............. 5.73 ..............

Mobile Source control measures:

Tier I Vehicles............................. .............. 29.53 .............. 10.14

National Low Emission Vehicle Program....... .............. 0.44 .............. 0.17

Reformulated Gasoline-On highway............ .............. 0.74 .............. 0.22

Reformulated Gasoline-Off highway

Enhanced Inspection & Maintenance

Stationary source control measures: .............. .............. .............. ..............

Barge and Tanker loading

Subchapter 16 & 19--RACT................ .............. 70.92 .............. 58.21

[[Page 9956]]

Federal CTG--RACT

Consumer Products rule--Subchapter 24

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

Total Reductions.................... 17.53 \1\ 101.63 5.73 \1\ 68.74

Shortfall....................................... 78.38 .............. 36.25 ..............

VOC equivalents from NOX Substitution........... 93.48 .............. 54.12 ..............

Surplus reductions from 15 Percent ROP Plans.... 15.1 .............. 17.87 ..............

Reductions not credited in today's action Ozone .............. 23.22 .............. 0.00

Transport Commission NOX MOU2..................

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

\1\ 101.63 tons/day of NOX converts to 93.48 tons/day of VOC equivalent in the Northern New Jersey NAA. 68.74

tons/day of NOX converts to 54.12 tons/day of VOC equivalent in the Trenton NAA.

\2\ New Jersey has fulfilled the Ozone Transport Commission NOX Memorandum of Understanding by adopting

Subchapter 31 ``Ozone Transport Commission NOX Budget Program.'' New Jersey is in the process of submitting

Subchapter 31 as a SIP revision.

In its December 14, 1998 addendum to its proposed 15 Percent ROP

plans and proposed 1999 Transportation Conformity Budgets, New Jersey

clarified its intention that the revised emission reduction

calculations contained in the July 30, 1998 letter from Commissioner

Shinn to Deputy Regional Administrator Muszynski be considered as part

of this SIP revision. Therefore, EPA is proposing to approve these

revisions to New Jersey's 9 Percent ROP plans.

The submittal also included proposed revised 1999 transportation

conformity budgets based on the revised control strategies included in

the 15 Percent ROP plans and in the July 30, 1998 version of the 9

Percent ROP plans. Table 5 contains the 1999 conformity budgets in

tons/day of VOC and nitrogen oxides (NOX) emissions. EPA is

proposing to approve these conformity budgets for both the 15 Percent

and 9 Percent ROP Plans as replacements for the budgets contained in

the previously approved 9 Percent ROP plans for 1999.

Table 5.--1999 Mobile Source On-road Emission Budgets for Conformity

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

VOC (tons/day) NOX (tons/day)

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

North Jersey Transportation Planning 182.23 279.14

Authority..............................

Delaware Valley Regional Planning 57.97 81.57

Commission (New Jersey Portion)........

South Jersey Transportation Planning 21.45 33.86

Organization...........................

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

EPA's December 12, 1997 disapproval of New Jersey's 15 Percent ROP

Plans resulted in New Jersey not being able to make conformity

determinations or changes to their transportation plans and programs

involving non-exempt projects funded by federal transportation funds.

This is known as a conformity freeze. On February 10, 1999, EPA

informed New Jersey that it had found the conformity budgets adequate

and that the conformity freeze was being lifted.

III. Conclusion

EPA has evaluated this submittal for consistency with the Act,

applicable EPA regulations and EPA policy. EPA is proposing approval of

the following: (1) Revisions to the New Jersey 1990 base year emission

inventories, (2) revisions to the New Jersey 1996 and 1999 projection

year emission inventories, (3) the New Jersey 15 Percent ROP Plans, (4)

recalculation of the 9 Percent ROP Plans, and (5) the transportation

conformity budgets as revised by the 15 Percent ROP Plans and

recalculated 9 Percent ROP Plans.

In addition, final approval of this SIP revision would eliminate

the shortfall identified in EPA's December 12, 1997 disapproval of New

Jersey's 15 Percent ROP Plans and, thereby, terminate the sanction

process associated with this deficiency and the requirement for EPA to

promulgate a Federal Implementation Plan (FIP). EPA must evaluate any

public comments received on this proposal before it can take final

approval action.

EPA's proposed FIP was published on January 22, 1999 (64 FR 3465).

Should EPA take final action on today's proposed approval of New

Jersey's 15 Percent ROP Plans, it would eliminate the need for the

January 22, 1999 proposed FIP and the proposed FIP will therefore be

withdrawn.

If and when EPA promulgates this proposed action, EPA will make its

approval effective upon the date of publication in the Federal

Register, based upon a finding of good cause. Approval of this action

would relieve restrictions that have been placed on the State when EPA

disapproved its SIP on December 12, 1997 and will not adversely affect

other parties.

IV. 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.''

B. Executive Order 12875

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

[[Page 9957]]

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. EPA is proposing approval of New Jersey's 15 Percent Plan

which only allocates emission reductions, it does not create any new

requirements. Accordingly, the requirements of section 1(a) of

Executive Order 12875 do not apply to this rule.

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 approval is not subject to

E.O. 13045 because it proposes approval of a state program implementing

a Federal standard, 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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to 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 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

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

Clean Air Act, preparation of 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. 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 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.

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.

Authority: 42 U.S.C. 7401 et seq.

Dated: February 19, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 99-4966 Filed 2-26-99; 8:45 am]

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