Air quality implementation plans; approval and promulgation; various States: New Jersey,
[Federal Register: August 26, 1998 (Volume 63, Number 165)]
[Rules and Regulations]
[Page 45399-45402]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au98-9]
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.
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
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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 filedin 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]
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The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart FF--New Jersey
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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.
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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
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Jersey Department of Environmental Protection was converted to a disapproval by a December 12, 1997 letter from EPA to New Jersey.
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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. 98-22791Filed8-25-98; 8:45 am]
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