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Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of New Jersey; Revised Policy Regarding Applicability of Oxygenated Fuels Requirements
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[Federal Register: June 28, 1996 (Volume 61, Number 126)] [Rules and Regulations] [Page 33678-33680] From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [Region II Docket No. 146, NJ23-1-7243(c); FRL-5524-4] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of New Jersey; Revised Policy Regarding Applicability of Oxygenated Fuels Requirements AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.
SUMMARY: On September 28, 1995, the New Jersey Department of Environmental Protection (NJDEP) submitted requests to redesignate the Camden County nonattainment area and nine not-classified areas from nonattainment to attainment for carbon monoxide (CO). NJDEP also submitted the required plans to assure continued attainment of the CO standards in the redesignated areas. On December 7, 1995, EPA published a direct final rulemaking (60 FR 62741) approving New Jersey's redesignation requests along with several elements of the New Jersey State Implementation Plan (SIP) for CO. This action announced that the rulemaking would take effect on February 5, 1996 (60 days after publication), unless EPA received adverse comments by January 8, 1996 (30 days after publication), in response to a notice of proposed rulemaking published on the same day (60 FR 62792). EPA also committed to withdraw the direct final rule in the event that it received adverse comments, and to respond to any adverse comments in a subsequent final rulemaking action. EPA did receive adverse comments on this action, but failed to withdraw the final rule within the 60 days given in the notice of direct final rulemaking. Therefore, the rule took effect on February 5, 1996. [[Page 33679]] EPA is responding to the comments it received; but, for the following reasons, EPA is not changing the final rule in response to those comments. Had EPA withdrawn the direct final rule prior to its going into effect, EPA would have taken final action based on the proposal to promulgate a rule identical to the direct final rule that went into effect. Rather than now take the action of withdrawing the direct final rule only to repromulgate simultaneously an identical rule, in this action EPA is deciding to maintain the rule unchanged. EPA believes that withdrawal and repromulgation are unnecessary since the results would be identical to that obtained simply by leaving the rule unchanged and responding to the comments. This action provides interested parties an opportunity to review how EPA addressed the comments and to petition for judicial review of EPA's action in this final rulemaking within 60 days of this publication, as provided in section 307(b)(1) of the Clean Air Act. EFFECTIVE DATES: February 5, 1996. ADDRESSES: 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, 20th Floor, New York, New York 10007-1866 New Jersey Department of Environmental Protection, Office of Energy, Bureau of Air Quality Planning, 401 East State Street, CN027, Trenton, New Jersey 08625
Environmental Protection Agency, Air and Radiation Docket and Information Center, Air Docket (6102), 401 M Street, SW, Washington, DC 20460 FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs Branch, Environmental Protection Agency, Region II Office, 290 Broadway, New York, New York 10007-1866, (212) 637-4249. SUPPLEMENTARY INFORMATION: I. Background Camden County, which is in the Philadelphia-Wilmington-Trenton Consolidated Metropolitan Statistical Area (CMSA), was designated nonattainment for CO under the provisions of sections 186 and 187 of the Clean Air Act. Because the area had a design value of 11.6 parts per million based on 1988 and 1989 data, the area was classified moderate. (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40 CFR part 81, Sec. 81.331.) This design value was based on ambient CO data recorded in the City of Philadelphia. For moderate CO nonattainment areas, the Clean Air Act requires that air quality must attain the National Ambient Air Quality Standard (NAAQS) by December 31, 1995. The last exceedance of the CO NAAQS in Camden County occurred in 1989.
In addition, nine areas were designated as not-classified nonattainment under section 107(d)(1)(C) of the Clean Air Act. Three of these not-classified areas, the City of Trenton, the City of Burlington and the Borough of Penns Grove (part), are located within the Philadelphia-Wilmington-Trenton CMSA. Five of the not-classified areas, the Borough of Freehold, the City of Morristown, the City of Perth Amboy, the City of Toms River and the Borough of Somerville, are located in the New York-Northern New Jersey-Long Island CMSA. The remaining not-classified area is the City of Atlantic City, which is not contained within a CMSA. Atlantic City is part of the Atlantic City MSA. The oxygenated gasoline requirements applicable to each of these areas depend upon its location in the State. These requirements are discussed in a December 7, 1995 direct final notice (60 FR 62741). The nine areas were considered ``not-classified'' because they previously had been designated nonattainment; however, air quality data collected during the period 1988 and 1989 showed that the NAAQS were met or data were not available. In those instances where air quality was no longer being monitored, concentrations measured in prior years had been well below the CO NAAQS.
In an effort to comply with the Clean Air Act and to ensure continued attainment of the NAAQS, on September 28, 1995, the State of New Jersey submitted CO redesignation requests and maintenance plans for Camden County and the nine not-classified areas. This submittal contained evidence that public hearings were held on September 8, 1995. EPA published a direct final notice (60 FR 62741) and a proposed notice (60 FR 62792) on December 7, 1995. Since comments were received which needed addressing, EPA is addressing these comments at this time. The reader is referred to the direct final notice for a detailed discussion of EPA's action. II. Comments EPA received comments from The New York Mercantile Exchange (NYMEX) and the New York State Department of Environmental Conservation (NYSDEC) on the December 7, 1995 notice. EPA's response to the comments is contained in a Technical Support Document entitled ``New Jersey Carbon Monoxide Redesignation Request For Camden County & Nine NotClassified Areas Technical Support Document (TSD); October 16, 1995; Amended March 7, 1996'' found in Docket No. 146. EPA does not believe that any of the comments present reasons why the Agency should not proceed with its proposed action, and the Agency is confident that New Jersey's redesignation request is technically sound. Therefore, EPA reaffirms its redesignation of Camden County and the nine not-classified areas in New Jersey to attainment of the CO NAAQS. III. Summary EPA is approving the Camden County and nine not-classified CO maintenance plans because they meet the requirements set forth in section 175A of the Clean Air Act. In addition, the Agency is approving the requests for redesignating Camden County and the nine notclassified areas to attainment because the State has demonstrated compliance with the requirements of section 107(d)(3)(E) of the Act for redesignation.
In the December 7, 1995 notice EPA also took action on the contingency measures and statewide emissions inventory found in the New Jersey CO SIP. The contingency measures include transportation control measures which cover traffic flow improvements, park & ride lots, and increased ridesharing. EPA received no comments on these SIP elements. The State has demonstrated to EPA's satisfaction that Camden County and the nine not-classified areas had attained the CO standard before the implementation of the oxygenated gasoline program and that as a result the oxygenated gasoline program was not needed to attain or maintain the CO standard. Therefore, EPA finds that the oxygenated gasoline program is not required in these areas in order to meet the criteria for redesignation.
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.
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 [[Page 33680]] and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.
SIP approvals under section 110 and Subchapter I, Part D of the Clean Air Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the federal SIP-approval does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected. Moveover, due to the nature of the federal-state relationship under the Clean Air Act, preparation of a regulatory flexibility analysis would constitute federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v US EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2). Under sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must undertake various actions in association with proposed or final rules that include a federal mandate that may result in estimated annual costs of $100 million or more to the private sector, or to state, local, or tribal governments in the aggregate. Through submission of this SIP or plan revision, the state and any affected local or tribal governments have elected to adopt the program provided for under sections 110 and 187 of the Clean Air Act. These rules may bind state, local and tribal governments to perform certain actions and also require the private sector to perform certain duties. To the extent that the rules being approved by this action would impose any mandate upon the state, local or tribal governments either as the owner or operator of a source or as a regulator, or would impose any mandate upon the private sector, EPA's action will impose no new requirements; such sources are already subject to these regulations under State law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action. EPA has also determined that this final action does not include a mandate that may result in estimated annual costs of $100 million or more to state, local, or tribal governments in the aggregate or to the private sector.
Under 5 U.S.C. section 605(b), I certify that redesignations do not have a significant economic impact on a substantial number of small entities. (See 46 FR 8709.)
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. Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this rule must be filed in the United States Court of Appeals for the appropriate circuit within 60 days from date of publication. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This rule may not be challenged later in proceedings to enforce its requirements. (See 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations. 40 CFR Part 81 Air pollution control, National parks, and Wilderness areas. Authority: 42 U.S.C. 7401-7671q. Dated: May 31, 1996.
William J. Muszynski, Acting Regional Administrator.
[FR Doc. 96-16158 Filed 6-27-96; 8:45 am] BILLING CODE 6560-50-P