Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) proposes to find that New Jersey has not fully implemented the 1-hour Ozone State Implementation Plan that EPA approved for two nonattainment areas, the New Jersey portions of the New York—Northern New Jersey—Long Island nonattainment area and the Philadelphia—Wilmington—Trenton nonattainment area. If EPA finalizes this proposed determination, New Jersey will be required to correct the identified deficiencies within 18 months of a final determination, or the first set of sanctions will be imposed pursuant to sections 179(a) and (b) of the Clean Air Act and 40 CFR 52.31.
Comments must be received on or before June 28, 2004.
Submit your comments, identified by Regional Material in EDocket (RME) ID Number R02–OAR–2004–NJ–0001 by one of the following methods:
1. Federal eRulemaking Portal:
2. Agency Web site:
3. E-mail:
4. Fax: (212) 637–3901.
5. Mail: “RME ID Number R02–OAR–2004–NJ–0001”, Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007–1866.
6. Hand Delivery or Courier. Deliver your comments to: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007–1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.
Paul R. Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007–1866, (212) 637–3711 or
Section 182 of the Clean Air Act (Act) identifies specific requirements for State Implementation Plans (SIP) for areas classified as nonattainment for the 1-hour ozone standard. Section 182 also establishes schedules for submission of SIP revisions to EPA by the states. The specific requirements and deadlines vary depending upon the severity of the ozone problem. This action applies to the New Jersey portion of two severe ozone nonattainment areas: the New York—Northern New Jersey—Long Island Area, and the Philadelphia—Wilmington—Trenton Area. For purposes of this action these areas will be referred to as, respectively, the Northern New Jersey ozone area and the Trenton ozone area. The counties located within the Northern New Jersey area are: Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, and Union. The counties within the Trenton area are: Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem. Under section 182(c)(2) and (d) of the Act, states with severe nonattainment areas were required to submit by November 15, 1994 demonstrations of how the areas would attain the 1-hour standard. In addition, states needed to demonstrate how they would achieve reductions in volatile organic compound (VOC) emissions of nine percent for each three-year period until the attainment year, this latter requirement is called the rate-of-progress plan. In some cases, oxides of nitrogen (NO
States are required to develop any additional measures to further reduce emissions that are required to attain the air quality standard by the attainment deadlines specified in the Act. On December 16, 1999 (64 FR 70380), EPA proposed approval of New Jersey's SIP demonstrating attainment of the 1-hour ozone standard for the two nonattainment areas, if, among other things, the State submitted an enforceable commitment to adopt additional control measures to fill an emission reduction shortfall identified by EPA in its review. To assist several states, including New Jersey, in developing additional emission control strategies, the Ozone Transport Commission (OTC) developed model rules to control emissions from six types of sources and estimated emission reduction benefits that would be achieved from implementing these model rules. These model rules are commonly referred to as the Ozone Transport Commission measures, or OTC measures. These model rules were designed for use by states in developing their own regulations to achieve the additional VOC and NO
On February 4, 2002 (67 FR 5152), EPA approved New Jersey's 1-hour ozone attainment demonstration SIP. This approval was based, in part, on enforceable commitments made by New Jersey in a SIP revision dated April 26, 2000. New Jersey committed to adopt additional control measures by October 31, 2001, to close the shortfalls in emission reductions identified by EPA. New Jersey indicated, as part of its commitment, that it expected the additional emission reductions would be achieved by adopting measures recommended during the OTC process which was completed on March 31, 2001.
In a letter dated December 11, 2001, New Jersey provided an update on the rulemaking schedule, which was to be published in the New Jersey Register, that included the six OTC measures. Based on this information, EPA proceeded with a final rulemaking approval of New Jersey's 1-hour ozone attainment demonstration SIP even after New Jersey missed the October 31, 2001 deadline, because at that time, EPA determined New Jersey was making sufficient progress to support approval of the commitment.
While New Jersey has made progress in implementing its ozone SIP, the State has missed the deadline to adopt and submit the additional control measures necessary to meet the emission reduction shortfall. The State indicated in its September 12, 2001 SIP revision, that the six OTC measures would result in sufficient emission reductions to meet the EPA identified emission shortfalls. To date, four control measures have been adopted and submitted as SIP revisions, but are insufficient by themselves to provide the emission reductions needed to attain the one hour ozone standard. Consequently, EPA is proposing to find that New Jersey is not fully implementing its approved attainment demonstration SIP because it has not met its commitment to adopt additional control measures, by October 31, 2001, which are needed to attain the 1-hour ozone standard.
Under the authority of section 179(a)(4) of the Act, if EPA makes a finding that provisions of an approved plan are not being implemented, then the deficiencies identified in the finding must be corrected within 18 months of the final finding or sanctions will begin to apply. There are two types of sanctions: Highway Sanctions (section 179(b)(1)) and Offset Sanctions (section 179(b)(2)).
EPA promulgated, at 40 CFR part 52, regulations to implement the sanction requirements of section 179 of the Act. 40 CFR 52.31(d)(1) provides that the offset sanction apply when a state has not corrected the deficiencies identified in the finding within 18 months of the effective date of the final finding. This sanction requires any entity or individual that is subject to nonattainment new source review and is constructing a new facility or modifying an existing facility over a certain size to reduce emissions in the area in which it is located by two tons for every one ton of VOC and/or NO
The current offset ratio in the two New Jersey nonattainment areas for VOC and NO
40 CFR 52.31(d)(1) further provides that the section 179(b)(2) highway sanction will apply if New Jersey does not correct the deficiencies identified in the finding within six months after the offset sanction is imposed. This sanction prohibits the U.S. Department
The sanctions time clock will be stopped or imposed sanctions lifted only if EPA determines, after an opportunity for public comment, that the deficiencies which resulted in today's failure to implement finding have been corrected. The time clock may be stayed or the imposition of sanctions may be deferred based on a proposed determination that the State has corrected the implementation deficiencies (40 CFR 52.31(d)(4)). EPA will be working with New Jersey to correct this deficiency as quickly as possibly to ensure that sanctions need not be imposed.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that is based on SBA size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. The sanctions provided for pursuant to section 179(b) for failure to implement under section 110 apply only to new or modified major stationary sources subject to section 173 of the Clean Air Act.
Under sections 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 costs to state, local, or tribal governments in the aggregate; or to the 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 finding of failure to implement action proposed does not include a Federal mandate that may result in estimated 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 find failure to implement pre-existing requirements under state or local law, and imposes no new requirements on the state. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.
This rule will not have substantial direct effects on the 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 13132, because it does not establish any new requirement with which the state must comply nor does it alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Rather, consistent with the Clean Air Act requirements, this action proposes that the state is not complying with provisions already approved in the SIP. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000). Thus, Executive Order 13175 does not apply to this rule.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401–7671q.