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Citation: 67 Fed. Reg. 5152 2002

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### /Monday, February 4, 2002

### /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [Region 

### II Docket No. NJ50-238; FRL-7132- 4]
Approval and Promulgation of Implementation Plans; New Jersey Reasonable Further Progress Plans, Transportation Conformity Budgets and 1-Hour Ozone Attainment Demonstrations State Implementation Plans

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA is approving several New Jersey State Implementation Plans (SIP) revisions addressing several Clean Air Act requirements. Specifically, EPAis approving 1-hour Ozone Attainment Demonstrations, Reasonable Further Progress Plans for milestone years 2002, 2005 and 2007, conformity budgets for 2002, 2005 and 2007, contingency
measures, a 1996 periodic emission inventory, ozone projection year emission inventories for 2002, 2005 and 2007, enforceable commitments for the 1-hour ozone attainment demonstration, andreasonably available control

measure analysis for the New YorkNorthern New Jersey-Long Island nonattainment area (NAA) and the Philadelphia, Wilmington, Trenton NAA. The intended effect ofthis action is to approve programs required bythe Clean Air Act which will result in emission reductions that will achieve attainment ofthe 1-hournational ambient air quality standard for ozone in the New York-Northern NewJerseyLong Island NAA and the Philadelphia, Wilmington, Trenton NAA. EFFECTIVE DATE: Thisrule will be effective March 6, 2002. ADDRESSES: Copies ofthe State submittals 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 NewJersey Department of

Environmental Protection, Office of Air Quality Management, Bureau of Air Pollution Control, 401 East State Street, CN027, Trenton, NewJersey 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: Paul Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249. SUPPLEMENTARY INFORMATION:

Table ofContents

I.What action is EPA taking today? II. What are the details ofEPA's specific actions? A. Emission Inventories B. RFP Plans for 2002, 2005 and 2007 C. Ozone Contingency Measures D. Conformity Budgets E. Reasonably Available Control Measure

Analysis F. 1-hour Ozone Attainment Demonstration

SIP Including Enforceable Commitments III. What comments were received on the proposed approvals and how has EPA responded to them? A. Attainment Demonstrations 1.General Comments 2. Weight ofEvidence B. Reliance on the Nitrogen Oxide SIP Call

and the Tier2/Sulfur Rule C. Comments on RACM D. Approval ofAttainment Demonstrations

That Rely on State Commitments or State Rules For Emission Limitations to Lower Emissions in the Future not yet Adopted by a State and/or Approved by EPA E. Adequacy ofMotor VehicleEmissions

Budgets F. Attainment Demonstration and Rate of

Progress Motor Vehicle Emissions Inventories G. VOC Emission Reductions H. Credit forMeasures not Fully

Implemented I.Enforcement ofControl Programs J. MOBILE6 and Motor Vehicle Emissions

Budgets (MVEBs) K. MOBILE6 Grace Period L. Two-Year Option to Revise theMVEBs M. Measures for the 1-Hour NAAQS and

for Progress Toward 8-HourNAAQS N. Attainment and Post 1999 Reasonable

Further Progress Demonstrations IV. Conclusion V. Administrative Requirements

I. What Action Is EPA Taking Today?

EPA is approving several State Implementation Plan (SIP) revisions submitted by New Jersey to address Clean Air Act (CAA) requirements related to attainment ofthe national ambient air quality standard for ozone. These submittals apply to the New Jersey portions oftwo severe ozone nonattainment areas-the New York, Northern New Jersey, Long Island Area, and the Philadelphia, Wilmington, Trenton Area. For purposes ofthis action these areas will be referred to as, respectively, the Northern New Jersey

ozone nonattainment area (NAA) and the Trenton ozone NAA. The counties located within the Northern New Jersey NAA are: Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, and Union. The counties within the Trenton NAA are: Burlington, Camden,Cumberland, Gloucester, Mercer, and Salem. Unless otherwise noted, the submissions referenced are forboth NAAs.

Specifically, EPA is approving New Jersey's:

-1996 periodic emission inventory; -2002, 2005 and 2007 ozone emission inventories (which are referred
to as projection year emission inventories);

-2002, 2005 and 2007Reasonable Further Progress (RFP) Plans;

-ozone contingency measures; -2002, 2005 and 2007 conformity budgets;

-reasonably available control

measure analysis; and

-1-hour ozone attainment demonstrations for the Northern New Jersey andTrenton NAAs with enforceable commitments.

Table 1identifies the SIP revisions thathave been submitted to fulfill the CAA requirements for the 1-hour ozone attainment demonstrations.

TABLE 1.-SUMMARY OF SUBMITTALS RELEVANT TO NEW JERSEY'S 1- HOUR OZONE ATTAINMENT DEMONSTRATION 

### SIP

Date Content

August 31,

1998. October 16,

1998. April 26, 2000

April 11,2001 Attainment demonstrations.

Public participation appendix. 1. Revised Motor Vehicle

Emissions Budgets (MVEB). 2. Commitments to: -Adopt and submit additional control measures for attainment by October 31, 2001 -Revise transportation conformity budgets to include benefits from the Tier 2/ Sulfur-in-fuel rule -Revise attainment year

transportation conformity budgets 1year after release of MOBILE6 -Revise transportation conformity budgets if additional measures include mobile measures -Perform Mid course review 1. 1996 Periodic emission inventory. 2. 2002, 2005, 2007 projection year emission inventories. 3. Reasonable Further

Progress Plans for 2002, 2005 and 2007. 4. Contingency measures. 5. 2002, 2005 and 2007

Conformity Budgets. 

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TABLE 1.-SUMMARY OF SUBMITTALS
RELEVANT TO NEW JERSEY'S 1- HOUR OZONE ATTAINMENT DEMONSTRATION 

### SIP-Continued

Date Content

June 18, 2001 Proposed Reasonably Available Control Measures Analysis. October 8, Adopted Reasonably Avail2001. able Control Measures Analysis.

II. What Are the Details of EPA's Specific Actions?

A. EmissionInventories

On April 11, 2001, New Jersey submitted a SIP revision which contained the statewide 1996 periodic emission inventory, and 2002 and 2005

ozone projection year emission inventories for the Northern New Jersey NAA and Trenton NAA and a 2007

ozone projection year emission inventory for the Northern New Jersey NAA. These emission inventories contained information on both volatile organic compounds (VOCs) and nitrogen oxides (NOx). EPA proposed approval on September 12, 2001 (66 FR 47419), and extended the comment period on October 16, 2001 (66 FR 53560). No comments were received on these emission inventories. Therefore, EPA is approving them as part of New Jersey's SIP. B. RFPPlans for2002,2005 and2007
OnApril 11, 2001, NewJersey submitted a SIP revision which contained the 2002 and 2005 RFP Plans for the Northern NewJersey NAA and Trenton NAA and a 2007 RFP Plan for the Northern NewJersey NAA. New Jersey has identified the control

measures necessary to achieve the required emission reductions and all the

measures havebeen adopted and implemented or adopted and scheduled for implementation. These plans identified the control measures that will be generating the emission reductions needed to achieve the three percent per year emission reductions averaged over each consecutive three-year period until the area reaches attainment. EPA proposed approval on September 12, 2001 (66 FR 47419), and extended the
comment period on October 16, 2001 (66 FR 53560). No comments were received on these RFP Plans. Therefore, EPA is approving them aspart ofNew Jersey's SIP.

C. Ozone Contingency Measures
OnApril 11, 2001, NewJersey submitted a SIP revision which identified the ozone contingency

measures forthe Trenton NAA and Northern New Jersey NAAnecessary to fulfill the RFP and attainment requirements ofsection 172(c)(9) ofthe CAA. Contingency measures are control

measures that must be implemented should an ozone nonattainment area fail
to achieve RFP orto attain the NAAQS within the time-frames specified under the CAA. Consistent with EPA guidance, NewJersey used a combination ofexcess VOC and NOx emission reductions (0.3 percent VOC and 2.7 percent NOx) resulting from the implementation of adopted State control programs. These reductions are available for each milestone year (2002 and 2005) and the attainment years (2005 and 2007), for the Trenton NAA and Northern New Jersey NAA respectively. EPAproposed approval on September 12, 2001 (66 FR 47419), and extended the comment period on October 16, 2001 (66FR 53560). No
comments were received onthe contingency measures portion ofthe SIP revision. Therefore, EPA is approving it

as part ofNewJersey's SIP.

D. ConformityBudgets

On April 11, 2001, NewJersey submitted a SIP revision which contained the transportation conformity budgets for the Northern NewJersey NAA and Trenton NAA (see Table 2) and the general conformity emission budgets for McGuire Air Force Base (see Table 3). It shouldbe noted that for the Northern New Jersey NAA the 2002 and 2005 conformity budgets arebased on the RFP Plan and the 2007 budgets are based onthe 1-hour ozone attainment plan. For the Trenton NAA,the 2002 budgets are based on the RFP Plan and the 2005 budgets are based on the 1- hour ozone attainment plan.

TABLE 2.-NEW JERSEY TRANSPORTATION CONFORMITY BUDGETS

2002 2005 2007 Transportation Planning Area VOC NOx VOC NOx VOC NOx (tpd) (tpd) (tpd) (tpd) (tpd) (tpd)

North Jersey Transportation Planning Authority (NJTPA)

............................................... 140.15 240.19 98.11 187.70 93.20 175.51 South Jersey Transportation Planning Organization (SJTPO)

........................................ 17.49 33.02 13.36 26.42 1n/a n/a Delaware Valley Regional Planning Commission (DVRPC)

........................................... 55.28 73.05 38.03 55.62 n/a n/a

1. Not applicable.

TABLE 3.-MCGURE AIR FoF GENERAL CONFORMITY BUDGETS

VOC NO× VOC tons/year

1990 Baseline

....... 1,112 1996

...................... 1,186 1999

...................... 1,223 2002

...................... 1,405 2005

...................... 1,406

On June 1, 2001 (66 FR 2979 found the transportation confo budgets to be adequate for con purposes effective June 18, 20( time, EPA responded to commRCE BASE regarding adequacy ofbudgets. EPA EMISSION proposed approval ofall ofthese budgets on September 12, 2001 (66 FR 47419), and extended the comment NOx period on October 16, 2001 (66 FR tons/year 53560). No specific comments were received on the proposed approval of 1,038 New Jersey's budgets, however, EPA 1,107 1,142 received general comments concerning

875 conformity budgets which are addressed 884 in Section III. EPAis approving the budgets as part ofNewJersey's SIP. '7), EPA These budgets (seeTable 2 and 3) are rmity consistent with the measures in New formity Jersey's RFP plans and attainment )1. Atthat demonstrations that are alsobeing
ents approved today. Itis important to note thatNewJersey has committed torevise the 2005 and 2007 attainment year transportation conformity emissions budgets within one year ofthe official release ofthe MOBILE6 motor vehicles emissions model for regulatory
purposes. NewJersey has committed to submit newbudgets ifany additional

measures involve motor vehicles and affect the motor vehicle budgets. Therefore, EPA is approving these budgets only until New Jersey meets its commitments and submits new budgets, and EPAfinds those budgets adequate. Accordingly, once the revised budgets

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replace the 2005 and 2007 attainment year emissionsbudgets being approved today for conformity purposes. EPA is approving NewJersey's commitment to revise the attainment year motorvehicle emissions budgets using the MOBILE6 model within one year after the release ofthe MOBILE6 model, and the commitment to revise the budgets ifany additional measures affect the budgets.

E.ReasonablyAvailableControl MeasureAnalysis

On June 18, 2001, New Jersey submitted aproposed assessment of whether any additional RACM are available to advance the attainment date, from 2005 to an earlier year for the Trenton NAA and from 2007 to an earlieryear for the Northern NewJersey NAA. On September 24, 2001 (66 FR 48847), EPA proposed approval ofNew Jersey's RACM analysis and on October 16, 2001 (66 FR 53560), EPA extended the comment period for this proposal. No specific comments were received on NewJersey's RACM analysis, however, EPA received general comments concerning RACM which are addressed in section III. EPA is approving New Jersey's analysis which determined that there are no additional control measures available, beyond those already included in the attainment demonstrations, that are technically or economically feasible andwould advance the attainment dates of2005 or 2007 for the Trenton NAA or Northern NewJersey NAA, respectively. However, EPA does believe that the control strategies considered in New Jersey's RACM analysis may have potential for reducing ozone levels over the longer term, and we recommend that NewJersey and other states in the Ozone Transport Region revisit these control strategies when theybegin developing the 8-hour ozone standard SIP.

F. 1-hourOzoneAttainment DemonstrationSIPIncluding EnforceableCommitments
OnDecember 16, 1999 (64 FR 70380), EPA proposed approval ofNewJersey's 1-hour Ozone Attainment Demonstration SIP. However, this approval was contingent upon New Jersey submitting the following: (1)The adoptedNOx SIP Call program as a SIP revision; (2)The adopted CAA required

measures for severe nonattainment areas and adopted measures relied on in the modeled 1-hour Ozone Attainment Demonstration SIP; (3)enforceable commitments to:

a. Adopt and submitsufficient

measures to address the additional emission reductions identified by EPA

asnecessary for attainment;

b. Submit revised transportation conformity budgets to include the Tier 2/Sulfur program benefits, ifthese benefits have not already been incorporated;

c. Revise the Attainment Demonstration SIP, including recalculation ofthe transportation conformity budgets (ifany ofthe additional emission reductions pertain
to motor vehicle measures) to reflect the adopted additional measures needed for attainment; and

d. Revise the Attainment Demonstration, including transportation conformity budgets, within one year of the release ofMOBILE6.

The specifics ofhowNew Jersey fulfilled allthese requirements are discussed below. (1)NOx SIP Call Submittal

On December 10, 1999 andJuly 31, 2000, NewJersey submitted adopted SIP revisionswhich fulfilled the NOx SIP Call requirements. Specifically, New Jersey adopted Subchapter 31 "NOx Budget Program," ofTitle 7,Chapter 27 ofthe NewJersey Administrative Code in order to strengthen its 1-hour Ozone Attainment Demonstration SIP and to comply with the NOx SIP Call during each ozone season, i.e., May 1through September 30, beginning in 2003. On May 22, 2001 (66 FR 28063), EPA approved NewJersey's SIP revisions as meeting the NOx SIP Call. Itis important to note thatNew Jersey is implementing its NOx SIP Call rules requiring source compliance by 2003,

eventhough an order from the D.C. Circuit Court allowed that full implementation could be rolled backto 2004.
(2)CAA Measures and Control Measures Relied on inthe Modeled 1-hour Ozone Attainment Demonstration SIP

New Jersey has already adopted the control measures required for areas classified as severe under section 182 of the CAA forthe Northern NewJersey and Trenton NAAs. Table 4presents a summary ofthe control measures that

are relied on in the 1-hour Ozone Attainment Demonstration SIP, including the Rate ofProgress (ROP) and RFP plans. The reader is referred to EPA'sMarch 1, 1999 (64 FR 9952) proposed approval ofNewJersey's 15 and 9 Percent ROP Plans and September 12, 2001 (66FR 47419) proposed approvals ofNewJersey's RFP Plansfor

a more detailed discussion ofthe control measures identified.

TABLE 4.-SUMMARY OF OZONE CONTROL MEASURES IN NEW JERSEY'S 

### SIP

Control measure

On-Road Sources: Federal M otor Vehicle Control program (Tier 1 & 2)

................................................................... National Low Emission Vehicle 1 (NLEV)

..................................................................................... Enhanced Inspection & M aintenance

........................................................................................... Reformulated Gasoline (Phase 1 & 2)

......................................................................................... Heavy Duty Diesel Engines (On-road)

......................................................................................... Non-Road Sources: Federal Spark Ignition Small Engine standards

........................................................................... Federal New Gasoline Spark Ignition M arine Engine standards

................................................. Federal Nonroad Compression Ignition engines

.......................................................................... Locomotive & Locomotive Engines

.............................................................................................. Commercial Marine Diesel Engines

............................................................................................. Stationary Sources: VOC CTG Source Categories

...................................................................................................... VOC Non-CTG Source Categories- RACT

................................................................................. N

O RACT

................................................................................................................................... M

arine Vessel Ballasting & Loading Operations

.......................................................................... Stage IIVapor Recovery & On-board Refueling Vapor Recovery (ORVR)

................................ OTC NOx M OUControls

............................................................................................................. NOx SIP Call Program

................................................................................................................. Type of measure

Federal State opt-in-SIP approved State adopted-SIP approved Federal Federal

Federal Federal Federal Federal Federal

State adopted-SIP approved State adopted-SIP approved State adopted-SIP approved State adopted-SIP approved State adopted-SIP approved & Federal State adopted-SIP approved State adopted-SIP approved 

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TABLE 4.-SUMMARY OF OZONE CONTROL MEASURES IN NEW JERSEY'S 

### SIP-Continued

Control measure Type of measure

Area Sources: AIM Surface Coatings

.................................................................................................................. State adopted- SIP approved &Federal Consumer &Commercial Products

.............................................................................................. State adopted- SIP approved & Federal Autobody Refinishing .................................................................................................................... Federal Hazardous Organic NESHAP

....................................................................................................... Federal Landfill Controls

............................................................................................................................ State adopted- SIP approved &Federal

1To the extent NLEV not superceded by Tier 2.

In the December 16, 1999 proposal, EPA specifically identified two CAA required control programs thathad yet to be approved by EPA: Post-1999 RFP Plans with control measures needed to meet these Plans and implementation of the Enhanced Inspection and Maintenance (I/M)program. As discussed above, EPA is approving New Jersey's Post-1999 RFP Plans as part of today's action. OnJune 12, 2001 (66 FR 31544), EPA made a determination that NewJersey has implemented the enhanced I/Mprogram andreinstated the interim approval granted under Section 348 ofthe National Highway Systems Designation Act. On September 11, 2001 (66 FR 47130), EPA proposed full approval ofthe enhanced I/M
program and onJanuary 22, 2002, EPA took final action giving full approval. Therefore, New Jersey has satisfied both ofthese requirements. (3)Enforceable Commitments

On April 26, 2000, NewJersey submitted arevision to the 1-hour Ozone Attainment Demonstration SIP for the Northern NewJersey and Trenton NAAs. This submission addressed the commitments originally requested in EPA's December 16, 1999 proposal as follows:

a. Adopt and submit sufficient

measures to address the additional emission reductions identified by EPA

as necessary for attainment.

New Jersey submitted an adopted SIP revision containing the enforceable commitment to adopt and submit by October 31, 2001 additional control

measures to meet that level of reductions identified by EPA in its December 16, 1999 (64 FR 70380) proposed approval ofNew Jersey's 1- hour Ozone Attainment Demonstrations. In addition, as abackstop, New Jersey committed to adopt intrastate measures by October 31, 2001 ifthe regional

measures do not provide sufficient emission reductions to achieve the additional reductions identified byEPA. NewJersey also committed to work through the OTC process to develop a regional strategy regarding the measures necessary to meet the additional reductions identified byEPA. In fact, New Jersey has taken a active role in the OTC process ofidentifying and developing regional control strategies that would achieve the necessary additional reductions to attain the 1- hour ozone standard.

New Jersey adopted a SIP revision which identified the specific measures it would propose to adopt after public notice and comment along with the estimated emission reductions these

measures could achieve andthe role these measures play in the attainment demonstrations. The following are the

measures recommended bythe OTC and which NewJersey will be taking to public hearing: consumer and commercial products rule, architectural and industrial maintenance coatings rule, mobile equipment refinishing rule, solvent cleaning rule, controls on portable fuel containers as well as the NOx model rule (NOxreductions from

sources that arenot included in the 1994 OTC NOx Memorandum of Understanding for regional NOx reductions or covered byEPA's NOx SIP Call). NewJersey has begunits regulatory development process for these measures. In a letter dated December 11, 2001, New Jersey provided additional information on their progress in addressing the shortfall in emission reductions, including a schedule for therulemaking and publishing the schedule in the "New Jersey Register" rulemaking calendar dated January 7, 2002. See also section III.D. for an expanded discussion on New Jersey's commitment.

b. Submit revised transportation conformity budgets to include the Tier 2/Sulfur program benefits, ifthese benefits have not already been incorporated.

New Jersey submitted revised transportation conformity budgets which include the Tier 2/Sulfur program andtherefore, this commitment has been satisfied.

c. Revise the Attainment Demonstration SIP, including recalculation ofthe transportation conformity budgets (ifany ofthe additional emission reductions pertain to motor vehicle measures) to reflect the adopted additional measures needed for attainment.

New Jersey committed to revise the attainment demonstration SIP by submitting additional measures necessary for attainment and to recalculate the transportation conformity budgets, ifnecessary, based

on those measures.

d. Revise the Attainment Demonstration, including transportation conformity budgets, within one year of the release ofMOBILE6.

All states whose attainment demonstration includes the effects of the Tier 2/sulfur program have committed to revise and re-submit their
motorvehicle emissions budgets after EPAreleases MOBILE6. On April 26, 2000, NewJersey submitted an enforceable commitment to revise its attainment year transportation conformity budgets within one year of release ofMOBILE6.

As we proposed inthe July 28, 2000 supplemental notice ofproposed rulemaking (65 FR 46383), the final approval action we are taking today will be effective for conformity purposes onlyuntil revised motor vehicle emissions budgets are submitted andwe have found them adequate. We are limitingthe duration ofour approval in this mannerbecause we are only approving the attainment demonstrations and their budgets because the states have committed to revise them. Therefore, once we have confirmed that the revised budgets are adequate, they will be more appropriate thanthe budgets we are approving today.

e. Perform and submit a mid course review.

Also in the April 26, 2000 SIP revision, NewJersey revised itsprior commitment to a mid course review (MCR). Specifically, to be consistent with EPA's recommendation, New Jersey has revised the date for submitting its MCR to December 31, 2003. 

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III.What Comments Were Received on theProposed Approvals andHow Has EPA Responded to Them?

EPA received comments from the public on the Notice ofProposed Rulemaking (NPR)published on December 16, 1999 (64 FR 47419) for NewJersey's ozone attainment demonstration. In addition, EPA received comments from the public on the supplemental notice ofproposed rulemaking published onJuly 28, 2000 (65 FR 46383) on the attainment demonstrations, in which EPA clarified and expanded ontwo issues relating to the motor vehicle emissions budgets in the attainment demonstration SIPs. EPA alsoreceived comments on the September 12, 2001 (66 FR 47419) proposed approval ofNew Jersey's RFP Plans andtransportation conformity budgets for 2002, 2005 and 2007 and the September 24, 2001 (66 FR 48847) proposed approval ofNew Jersey's RACM analysis.

A. AttainmentDemonstrations

1.General Comments

Comment:Several commenters urged EPA to disapprove the attainment plan because they believe the plan does not include complete modeling, enforceable versions ofall Reasonably Available Control Measures (RACM) and a control strategy sufficient to achieve attainment. One commenter went on to say that because they believe the plan should be disapproved and, under the consent decree inNRDCv. Browner,Civ. No. 99-2976, EPA must commence promulgation ofa Federal Implementation Plan (FIP). One
commenter supported theproposed approval.

Response:In the following responses,

we address the specific concerns raised by the commenters in more detail. We believe the plans providedby the State ofNewJersey are fully approvable under the CAA and will provide for attainment as expeditiously as practicable which isby November 15, 2005 for the Trenton NAA and November 15, 2007 for the Northern NewJersey NAA and the plans includes allreasonably available control

measures. Therefore, we are finalizing

our approval in this action. Furthermore, because we are fully approving the plan as meeting the requirements of 182(c)(2) and (d) ofthe CAA, it isunnecessary to commence development ofaFIP.

Comment:NewJersey has not provided modeling that shows attainment in 2007. A commenter also
states thatthere is no demonstration of maintenance ofthe ozone standard below the 0.12 ppm one-hour standard beyond 2007.

Response:EPA has taken the position that for nonattainment areas subject to the requirements of subpart 2 ofpart D ofthe CAA, the area needs to demonstrate that in the attainment year, the area will have air quality such that the area couldbe eligible for the two one-year extensions provided under section 181(a)(5) ofthe CAA. Under section 181(a)(5), an area that does not have three-years ofdata demonstrating attainment ofthe ozone NAAQS, but has complied with all ofthe statutory requirements andthat has no more than

one exceedance ofthe NAAQS in the attainment year, may receive a one-year extension ofits attainment date. Assuming those conditions are met the following year, the area may receive an additional one-year extension. Ifthe

area has no more than one exceedance in this final extension year, then itwill have three-years ofdata indicating that it has attained the ozone NAAQS.

This position is consistentboth with EPA's modeling guidance and withthe
structure of subpart 2ofthe CAA. Under EPA's modeling guidance, states model air quality for the attainment year-they donot model air quality for the threeyear period preceding the attainment year. As afunction ofhow the model operates, the dataproduced only predicts the air quality for one year. EPA's modeling guidance has existed for many years and hasbeen relied on by numerous nonattainment areas for demonstrating attainment ofthe ozone standard. Moreover, EPAbelieves this approach is consistent with the statutory structure of subpart 2. Under subpart 2, many ofthe planning obligations for areas were not required
to be implemented until the attainment year. Thus, Congress did not assume that all measures needed to attain the standard would be implemented three years prior to the area's attainment date. For example, areas classified as marginal-which had an attainment date ofthree years following enactment ofthe 1990 CAA amendments were required to adopt andimplement RACT and I/M "fix-ups" that clearly could not be implemented three years prior to their attainment date. Similarly, moderate areas were required to implement RACT by May 1995, only 18 months prior to their attainment date of November 1996. Also, the ROP requirement formoderate and above
areas, including the 15-percent plan for reductions byNovember 1996, applies through the attainment year. Thus, EPA believes that Congress did not intend that these additional mandatory reductions be in excess ofwhat is needed to achieve three-years of"clean data." For these reasons, EPA does not agree with the commenter thatthe State's attainment demonstration needs
to demonstrate that the area will have three years of data showing attainment in the attainment year. However, EPA does believe that the CAA requires and that itis prudent for states to implement controls as expeditiously aspracticable. EPA also believes that for the Trenton and Northern New Jersey NAAs, all

measures are being implemented as expeditiously aspracticable andthat the

areas have demonstrated attainment consistent with EPA'smodeling guidance.

A plan for maintenance ofthe standard is notnecessary for the attainment demonstration tobe approved. A state is not required by the CAA to provide a maintenance plan until the state petitions for an area tobe redesignated to attainment which will
not occur until the Trenton and Northern New Jersey NAAs havethree years ofdata showing compliance with the 1-hour ozone standard. While it is
notnecessary for the state to provide for maintenance ofthe standard atthis time, we dobelieve emissions in the Trenton and Northern NewJersey NAAs will continue to decrease after 2005 and 2007, respectively, due to on- and offroadvehicle emission controlprograms that will continue toprovide additional reductions as the fleet continues to turnover after 2007. So there is reason to believe that air quality will continue
to improve after the attainment date.

2.Weight ofEvidence

Comment:The weight ofevidence approach does not demonstrate attainment ormeet CAA requirements for amodeled attainment demonstration. Commenters added several criticisms ofvarious technical aspects ofthe weight ofevidence approach, including certain specific applications ofthe approach to particular attainment demonstrations. These comments are discussed in the following response.

Response:Under section 182(c)(2) and (d) ofthe CAA, serious and severe ozone nonattainment areas were required to submitby November 15, 1994, demonstrations ofhow they would attain the 1-hour standard. Section 182(c)(2)(A) provides that "this" attainment demonstration must be based

on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least

as effective." As described in more detail below, the EPA allows states to supplement their photochemical 

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modeling results, with additional evidence designed to account for uncertainties in the photochemical modeling, to demonstrate attainment. This approach is consistent with the requirement of section 182(c)(2)(A) that the attainment demonstration "be based

onphotochemical grid modeling," because the modeling results constitute the principal component ofEPA's analysis, with supplemental information designed to account for uncertainties in the model. This interpretation and application ofthe photochemical modeling requirement ofsection 182(c)(2)(A) finds furtherjustification in the broad deference Congress granted EPA to develop appropriate methods for determining attainment, as indicated in the last phrase ofsection 182(c)(2)(A).

The flexibility granted to EPAunder section 182(c)(2)(A) is reflected in the regulations EPApromulgated for modeled attainment demonstrations. These regulations provide, "The adequacy ofa control strategy shall be demonstrated by means ofapplicable air quality models, data bases, and other requirements specified in [40 CFR part 51 Appendix W] (Guideline on Air Quality Models)."' 140 CFR 51.112(a)(1). However, the regulations further provide, "Where an air quality model specified in appendix W * * *is inappropriate, the model maybe modified or another model substituted [with approval by EPA, and after] notice and opportunity for public
comment * * * " Appendix W, in turn, provides that, "The Urban Airshed Model (UAM)is recommended for photochemical or reactive pollutant modeling applications involving entire urban areas," but further refers to EPA's modeling guidance for data requirements and procedures for operating the model. 40 CFR part 51, Appendix W, section 6.2.1.a. The modeling guidance discusses the data requirements and operating procedures,

as well as interpretation ofmodel results as they relate to the attainment demonstration. This provision references guidance published in 1991, but EPA envisioned the guidance would change as we gained experience with model applications, which is why the guidance is referenced, but does not appear, in Appendix W. With updates in 1996 and 1999, the evolution of EPA's guidance has ledus to useboth the photochemical grid model, and

1 The August 12, 1996 version of "Appendix W
to part 51-Guideline on Air Quality Models" was the rule in effect for these attainment demonstrations. EPA is proposing updates to this rule, that will nottake effect until the rulemaking
process for them is complete. additional analytical methods approved by EPA.

The modeled attainment test compares model predicted 1-hour daily maximum ozone concentrations in all grid cells for the attainment year to the level ofthe National Ambient Air Quality Standard (NAAQS). The results may be interpreted through either oftwo modeled attainment or exceedance tests: the deterministic test or the statistical
test. Under the deterministic test, a predicted concentration above 0.124 parts per million (ppm)ozone indicates that the area is expected to exceed the standard in the attainment year and a prediction at or below 0.124 ppm indicates that the area is expected to not exceed the standard. Under the statistical test, attainment is demonstrated when all predicted (i.e., modeled) 1-hour ozone concentrations inside the modeling domain are at, or below, an acceptable upper limit above the NAAQS permitted under certain conditions (depending onthe severity of the episode modeled). 2

In 1996, EPA issued guidance 3to update the 1991 guidance referenced in 40 CFR part 51, Appendix W, to make the modeled attainment test more closely reflect the form ofthe NAAQS (i.e.,the statistical test described above),
to consider the area's ozone design value andthe meteorological conditions accompanying observed exceedances, andto allow consideration ofother evidence to address uncertainties in the modeling databases and application. When the modeling does not conclusively demonstrate attainment, EPA has concluded that additional analyses may be presented tohelp determine whether the area will attain the standard. As with other predictive tools, there are inherent uncertainties associated with air quality modeling and its results. The inherent imprecision ofthe model means thatit
may be inappropriate to viewthe specific numerical result ofthe model as the only determinant ofwhether the SIP controls are likely to lead to attainment. The EPA's guidance recognizes these limitations, andprovides a means for considering other evidence to help

assess whether attainment ofthe NAAQS is likely tobe achieved. The process bywhich this is done is called

aweight ofevidence (WOE) determination. Under aWOE determination, a state canrely on, and EPA will consider in addition to the results ofthe modeled attainment test,

2Guidance on the Use OfModeled Results to
Demonstrate Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.

3Ibid. other factors such as othermodeled output (e.g., changes in the predicted frequency and pervasiveness of 1-hour

ozone NAAQS exceedances, and predicted change in the ozone design value); actual observed air quality trends (i.e., analyses ofmonitored air quality data); estimated emissions trends; and the responsiveness ofthe model predictions to further controls.

In 1999, EPA issued additional guidance4that makes further use of model results for base case andfuture emission estimates to predict afuture design value. This guidance describes the use ofan additional component of the WOE determination, which requires, under certain circumstances, additional emission reductions that are or will be approved into the SIP,but that were not included in the modeling analysis, that will further reduce the modeled design value. An area is considered to monitor attainment ifeach monitoring site has air quality observed ozone design values (4thhighest daily maximum ozone using the three most recent consecutive years ofdata) at or belowthe level ofthe standard. Therefore, itis appropriate for EPA, when making a determination that

a control strategy will provide for attainment, to determine whether or not the model predicted future design value is expected to be at or belowthe level ofthe standard. Since the form ofthe 1- hourNAAQS allows exceedances, itdid
not seem appropriate for EPAtorequire the test for attainment to be "no exceedances" inthe future model predictions.

The method outlined in EPA's 1999 guidance uses the highest measured design value across all sites in the nonattainment area for each ofthree
years. These three "design values" represent the air quality observed during the time period used to predict

ozone for the base emissions. This is appropriate because the model is predicting the change in ozone from the base period to the future attainment date. The three yearly design values (highestacross the area) are averaged to account for annual fluctuations in meteorology. The result is an estimate of

an area's base year design value. The base year design value is multiplied by

a ratio ofthe peak model predicted

ozone concentrations in the attainment year (i.e., average ofdaily maximum concentrations from all days modeled)

4"Guidance for Improving Weight ofEvidence Through Identification ofAdditional Emission Reductions, NotModeled." U.S. Environmental Protection Agency,Office ofAirQuality Planning and Standards, Emissions, Monitoring, and AnalysisDivision, AirQuality Modeling Group, Research Triangle Park, NC 27711. November 1999. Web site: http://www.epa.govlttnlscram. 

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to thepeak model predicted ozone concentrations in the base year (i.e., average ofdaily maximum concentrations from all days modeled). The result is an attainment year design value based on the relative change in peak model predicted ozone concentrations from the base year to the attainment year. Modeling results also show that emission control strategies designed toreduce areas ofpeak ozone concentrations generally result in similar ozone reductions in allcore
areas ofthe modeling domain, thereby providing some assurance ofattainment
atall monitors.

In the event thatthe attainment year designvalue is above the standard, the 1999 guidance provides a method for identifying additional emission reductions, not modeled, which at a minimum provide an estimated attainment year designvalue at the level ofthe standard. This step uses a locally derived factor which assumes a linear relationship between ozone and the precursors.

A commenter criticized the 1999 guidance as flawed on grounds thatit allows the averaging ofthe three highest air quality sites across a region, whereas EPA's 1991 and 1996 modeling guidance requires that attainment be demonstrated at each site. This has the effect ofallowing lower air quality concentrations tobe averaged against higher concentrations thus reducing the total emission reduction needed to reach attainment at the higher site. The
commenter does not appear to have described the guidance accurately. The guidance does not recommend averaging across a region or spatial averaging ofobserved data. The guidance does recommend determination ofthe highest site in the region for each ofthe three-year periods, determined by the base year modeled. For example, ifthe base year is 1990, it is the amount ofemissions in 1990 that
must be adjusted or evaluated (by accounting for growth and controls) to determine whether attainment results. These 1990 emissions would contribute
to three design value periods (1988-90, 1989-91 and 1990-92).

Under the approach ofthe guidance document, EPA determined the design value for each ofthose three-year periods, and then averaged those three designvalues, to determine the base designvalue. This approach is appropriate because, asjust noted, the 1990 emissions contributed to each of those periods, and there is no reason to believe the 1990 (episodic) emissions resulted in the highest or lowest ofthe three design values. Averaging the three
years isbeneficial for another reason: It allows consideration ofabroader range ofmeteorological conditions-those that occurred throughout the 1988-1992 period, rather than the meteorology that

occurs in one particular year or even

one particular ozone episode within that year. Furthermore, EPArelied on threeyear averaging onlyfor purposes of determining one component, i.e.-the small amount ofadditional emission reductions not modeled-ofthe WOE determination. The WOE determination, in turn, isintended to be part ofa qualitative assessment ofwhether additional factors (includingthe additional emissions reductions not modeled), taken as awhole, indicate that the area ismore likely than not to reach attainment.

A commenter criticized the component ofthis WOE factor that estimates ambientimprovement because it does not incorporate complete modeling ofthe additional emissions reductions. However, the regulations do
not mandate, nor does EPA guidance suggest, that states must model all control measures being implemented. Moreover, a component ofthis technique-the estimation offuture design value-should be considered a model-predicted estimate. Therefore, results from this technique are an extension of "photochemical grid" modeling and are consistent with Section 182(c)(2)(A). Also, a commenter believes that EPA has not provided sufficient opportunity to evaluate the calculations used to estimate additional emission reductions. EPAprovided a full 60-day period for comment on all aspects ofthe proposed rule. EPA has received several comments onthe technical aspects ofthe approach and the results ofits application, as discussed above and in the responses to the individual SIPs.

A commenter states that application ofthe method of attainment analysis used for the December 16, 1999 NPRs will yield a lower control estimate than ifwe relied entirely on reducing maximum predictions in every grid cell
to less than or equal to 124 ppb on every modeled day. However, the commenter's approach may overestimate needed controls because the form ofthe standard allows up to three exceedances in three years in every grid cell. Ifthe model over predicts observed concentrations, predicted controls may be further overestimated. EPA has considered other evidence, as described above through the weight ofevidence determination.

When reviewing a SIP, the EPA must make a determination thatthe control

measures adopted arereasonably likely to lead to attainment. Reliance on the WOE factors allows EPA to make this determination based on agreater body ofinformation presented by the states and available to EPA. Thisinformation includes model results for the majority ofthe control measures. Although not all measures were modeled, EPA reviewed the model's response to changes in emissions as well as observed air quality changes to evaluate the impact ofafew additional measures, notmodeled. EPA's decision was further strengthened by each state's commitment to check progress towards attainment in amid course review and
to adopt additional measures, ifthe anticipated progress isnot being made.

A commenter further criticized EPA's technique for estimating the ambient impact ofadditional emissions reductions not modeled on grounds that EPA employed a "rollback" modeling technique that, according to the commenter, is precluded under EPA regulations. The commenter explained that40 CFRpart 51, AppendixW, section 6.2.1.e. provides "Proportional (rollback/forward) modeling is not an acceptable procedure for evaluating

ozone control strategies." Section 14.0 ofAppendix W defines "rollback" as "a simple model that assumes thatif emissions from each source affecting a given receptor are decreased by the

same percentage, ambient air quality concentrations decrease proportionately." Under this approach if 20 percent improvement in ozone is needed for the area to reach attainment, itis assumed a 20 percent reduction in VOC would be required. There was no approach for identifying NOx reductions.

The "proportional rollback" approach isbased on a purely empirically/ mathematically derived relationship. EPA did notrely on this approach in its evaluation ofthe attainment demonstrations. The prohibition in Appendix W applies to the use of a rollback method which is empirically/ mathematically derived and independent ofmodel estimates or observed air quality and emissions changes as the sole method for evaluating control strategies. Forthe demonstrations under proposal, EPA used alocally derived (as determined by the model and/or observed changes in air quality) ratio ofchange in emissions
to change in ozone in order to estimate additional emission reductions to achieve an additional increment of ambient improvement in ozone.

For example, ifmonitoring or modeling results indicate that ozone
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andNOx emissions fell by 20 tons per day and 10 tons per day respectively duringthat period, EPA developed a ratio ofozone improvement related to reductions in VOC and NOx. This formula assumes a linear relationship between the precursors and ozone for a small amount ofozone improvement, but it isnot a "proportional rollback" technique. Further, EPA uses these locally derived adjustment factors as a component to estimate the extent to which additional emissions reductions-not the core control strategies-would reduce ozone levels andthereby strengthen the weight of evidence test.EPA uses the UAM to evaluate the core control strategies.

This limited use of adjustment factors is more technically sound than the unacceptable use ofproportional rollback to determine the ambient impact ofthe entire set ofemissions reductions required under the attainment SIP. The limited use of adjustment factors is acceptable for practical reasons: (1)It obviates the need to expend more time and resources to perform additional modeling; (2)itis

more consistent with recommendations referenced by Appendix Wbecause the adjustment factor is a locally derived relationship between ozone and its precursors based on air quality observations and/or modeling which does not assume a direct proportional relationship between ozone and its precursors; (3)lastly, therequirement that areas perform a mid course review (acheck ofprogress toward attainment) provides a margin of safety.

A commenter expressed concerns that EPA used a modeling technique (proportional rollback) that was expressly prohibited by 40 CFR part 51, Appendix W, without expressly proposing to do so in a notice of proposed rulemaking. However, the
commenter is mistaken. As explained above, EPA did not use or rely upon a proportional rollback technique in this rulemaking, but used UAM to evaluate the core control strategies and then applied its WOE guidance. Therefore, because EPA did not use an "alternative model" toUAM, it did not trigger an obligation to modify Appendix W. Furthermore, EPA did propose the use ofthe November 1999 guidance "Guidance for Improving Weight of Evidence Through Identification of Additional Emission Reductions, Not Modeled" in the December 16, 1999 proposal and has responded to all
comments received on thatguidance elsewhere in this document.

A commenter also expressed concern that EPA applied unacceptably broad discretion in fashioning and applying the WOE determinations. For all ofthe attainment submittals proposed for approval in December 1999 concerning serious and severe ozone nonattainment
areas, EPA first reviewed the UAM results. In all cases, the UAM results did
not pass the deterministic test. In two cases-Milwaukee andChicago-the UAM results passed the statistical test; in the rest ofthe cases, the UAM results failed the statistical test.The UAM has inherent limitations that, in EPA's view,

were manifest in all these cases. These limitations include: (1)Only selected time periods were modeled, not the entire three-year period used as the definitive means for determining an area's attainment status; (2)there are inherent uncertainties in the model formulation and model inputs such as hourly emission estimates, emissions growth projections, biogenic emission estimates, and derived wind speeds and directions. As aresult ofthese limitations, for all areas, even Milwaukee and Chicago, EPA examined additional analyses to indicate whether additional SIP controls wouldyield meaningful reductions in ozone values. These analyses did not point tothe need for additional emission reductions for Springfield, Greater Connecticut, Metropolitan Washington DC, Chicago andMilwaukee, but did point to the need for additional reductions, in varying amounts, in the other areas. As

aresult, the other areas submitted control requirements to provide the indicated level ofemissions reductions. EPA applied the same methodology in these areas, but because ofdifferences in the application ofthe model tothe circumstances ofeach individual area, the results differed on a case-by-case basis.

As another WOE factor, for areas within the NOx SIP Call domain, results from the EPAregional modeling for NOx controls as well asthe Tier2/Low Sulfur program were considered. Also, for all ofthe areas, EPA considered
recent changes in air quality and emissions. For some areas, this was helpful because there were emission reductions in the most recent years that couldbe related to observed changes in air quality, while for other areas there appeared tobe little change in either air quality or emissions. For areas in which air quality trends, associated with changes in emissions levels, couldbe discerned, these observed changes were used to help decide whether or not the emission controls in the plan would provide progress towards attainment.

The commenter also complained that EPA has applied the WOE determinations to adjust modeling results onlywhen those results indicate nonattainment, and not when they indicate attainment. First, we disagree with the premise ofthis comment: EPA does not apply the WOE factors to adjust model results. EPA applies the WOE factors as additional analysis to compensate for uncertainty in the air quality modeling. Second, EPA has applied WOE determinations to all of the attainment demonstrations proposed for approval inDecember 1999. Although for most ofthem, the air quality modeling resultsby themselves indicated nonattainment, for two metropolitan areas-Chicago and Milwaukee, including parts ofthe States ofIllinois, Indiana, and Wisconsin, the air quality modeling did indicate attainment on the basis ofthe statistical
test.

The commenter further criticized EPA's application ofthe WOE determination on grounds thatEPA ignores evidence indicating that continued nonattainment is likely, such
as, according to the commenter, monitoring data indicating that ozone levels in many cities during 1999 continue to exceed the NAAQS by margins as wide or wider than those predictedby the UAM. EPAhas reviewed the evidence provided bythe
commenter and has determined that the 1999 monitor values donot constitute substantial evidence indicating thatthe SIPs will not provide for attainment. The values given do not reflect either the local or regional control programs which are scheduled for implementation in the next several years. Once implemented, the local or regional control programs are expected
to lower emissions and thereby lower

ozone values. Moreover, there is little evidence to support the statement that

ozone levels in many cities during 1999 continue to exceed the NAAQS by margins as wide or wider than those predictedby the UAM. Since areas did
notmodel 1999 ozone levels using 1999 meteorology and 1999 emissions which reflect reductions anticipated by control
measures, that are orwill be approved into the SIP, there is no way to determine how the UAM predictions for 1999 compare to the 1999 air quality. Therefore, we can not determine whether or not the monitor values exceed the NAAQS by awider margin thanthe UAM predictions for 1999. In summary, there is little evidence to support the conclusion thathigh exceedances in 1999 will continue to

occur after adopted control measures are implemented.

In addition, the commenter argued that in applying the WOE determinations, EPAignored factors showing that the SIPs under-predict 

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future emissions, and the commenter included as examples certain mobile

source emissions sub-inventories. EPA did not ignore possible under-prediction in mobile emissions. EPA ispresently evaluating mobile source emissions data

aspart of an effort to update the computer model for estimating mobile

source emissions. EPAis considering various changes to the model, and is not prepared to conclude at this time that the net effect ofall these various changes wouldbe to increase or decrease emissions estimates. For attainment demonstration SIPs that rely

onthe Tier 2/Sulfur program for attainment or otherwise (i.e., reflect these programs in their motor vehicle emissions budgets), states have committed to revise their motorvehicle emissions budgets after the MOBILE6 model isreleased. EPA will workwith
states on a case-by-case basis ifthe new emission estimates raise issues about the sufficiency ofthe attainment demonstration. Ifanalysis indicates additional measures are needed, EPA will take the appropriate action. Comment:The NAAQS requires that in order to demonstrate attainment of the 1-hour NAAQS that no more than four ambient ozone concentrations exceed 0.12 ppm (235 mg/m3) within any three-year period. That standard

was based on the evidence needed to establish a margin ofsafety for ozone. Unlike the 8-hour standard, the 1-hour standard contains no "rounding convention." No provision ofthe rule provides authority for EPA to approve SIPs that will only achieve 124 ppb (242.6 g/m3). Thus even ifEPA has authority to adopt WOE criteria as a substitute for modeled demonstrations ofattainment, which we dispute, then the NewJersey SIP submissions do not demonstrate attainment ofthe 1-hour NAAQS because it only proposes to reduce ambient ozone to 124 ppb.

Response:Although the 1-hour NAAQS itselfincludes no discussion of specific data handling conventions similar to that ofthe 8-hour NAAQS, EPA's publicly articulated position and the approach long since universally adopted by the air quality management community is thatthe interpretation of the 1-hour ozone standard requires rounding ambient air quality data consistent with the stated level ofthe standard. EPA has clearly communicated the data handling conventions for the 1-hour ozone NAAQS in regulation and guidance documents. In the 1990 Amendments to the CAA, Congress expressly recognized the continuing validity ofEPA guidance. As early as 1977, two years before EPA promulgated the 1-hour ozone NAAQS, EPA provided in guidance that the level ofthe standard dictates the number of significant figures to be used in determining whether the standard

was exceeded (Guidelines for the Interpretation ofAir Quality Standards, OAQPS No. 1.2-008, February 1977). In addition, the regulations governing the reporting of annual summary statistics from ambient monitoring stations for

use byEPA in determining national air quality status clearly indicate the rounding convention to be used for 1- hour ozone data (40 CFR part 58, Appendix F). In 1979, EPA issued additional guidance specific to ozone in which EPA provided that "the stated level ofthe standard is taken as defining the number ofsignificant figures to be used in comparisons with the standard. For example, a standard level of .12
ppm means that measurements are to be rounded to two decimal places (.005 rounds up), and, therefore, .125 ppm is the smallest concentration value in

excess ofthe level ofthe standard." (Guideline for the Interpretation of Ozone Air Quality Standards, EPA-450/ 4-79-003, atp. 6.) EPA's guidance on air quality modeling is consistent with those Guidelines. See e.g., Guidance on Use ofModeled Results to Demonstrate Attainment ofthe Ozone NAAQS, July 1996.

The level ofthe 1-hour ozone NAAQS is defined in 40 CFR 50.9 as 0.12 parts
per million (ppm), not 120 parts per billion (ppb) as implied by the
commenter. In other words, the 1-hour

ozone NAAQS is specified as two significant digits and the data handling approach employed to compare ambient air quality data to the 1-hour ozone standard is to round to two decimal places as per the regulations and guidance referenced above.

In the 1990 Amendments to the CAA, Congress expressly provided that "[e]ach regulation, standard, rule, notice, order and guidance promulgated

orissued by the Administrator under this CAA, as in effect before the date of the enactment ofthe CAA Amendments of 1990 shall remain in effect according

to its terms..." Thus, under the amended CAA, Congress expressly carried forth EPA interpretations set forth in guidance such as the guideline documents interpreting the NAAQS.

B. Relianceon theNitrogen OxideSIP Callandthe Tier2/SulfurRule

Comment:Several commenters stated that given the uncertainty surrounding the NOx SIP Call at the time ofEPA's proposals on the attainment demonstrations, there is no basis for the conclusion reached by EPA that states should assume implementation ofthe NOx SIP Call, or rely onit as a part of their demonstrations. One commenter claims that there were errors in the emissions inventories used for the NOx SIP Call Supplemental Notice (SNPR) and thatthese inaccuracies were carried

over to the modeling analyses, estimates ofair quality based on that modeling, and estimates ofEPA's Tier 2tailpipe emissions reduction program not modeled in the demonstrations. Thus, because ofthe inaccuracies inthe inventories usedfor the NOx SIP Call, the attainment demonstration modeling is also flawed. Finally, one commenter suggests that modeling data demonstrates thatthe benefits of imposing NOx SIP Call controls are limited to areas near the sources controlled.

Response:These comments were submitted prior to several court decisions largely upholding EPA's NOx SIP Call,Michiganv. UnitedStatesEnv. Prot. Agency, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, U.S., 121 S.Ct. 1225, 149 L.Ed. 135 (2001);Appalachian Powerv.EPA, 251 F.3d 1026 (D.C. Cir. 2001). Although a fewissues were vacated orremanded to EPAfor further consideration, these issues donot

concern the accuracy ofthe emission inventories relied on for purposes ofthe NOx SIP Call. Moreover, contrary to the commenter's suggestion, the NOx SIP Call modeling data bases were not used
to develop estimates ofreductions from the Tier 2/Sulfur program forthe severe

area 1-hour attainment demonstrations. Accordingly, the commenter's concerns that inaccurate inventories for the NOx SIP Call modeling lead to inaccurate results for the severe-area 1-hour attainment demonstrations are inapposite.

The remanded issues do affect the ability ofEPA andthe states to achieve the full level ofthe NOx SIP Call reductions by May 2003. First, the court vacated the rule as it applied to two States-Missouri and Georgia-and also remanded the definition ofa cogenerator and the assumed emission limitfor internal combustion engines. EPAhas informed the states thatuntil EPA addresses the remanded issues, EPAwill accept SIPs that do not include those small portions ofthe emission budget. However, EPA is planning to propose a rule shortly to address the remanded issues and ensure that emission reductions from these states and the emission reductions represented by the two source categories are addressed in timeto benefit the severe nonattainment areas. Also, although the
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issued an order delaying the implementation date to no later than May 31, 2004, and the court in the AppalachianPowercase remanded an issue concerning computation ofthe electric generating unit growth factor, it is EPA'sview that states should assume that the NOx SIP Call reductions will

occur in time to ensure attainment in the severe nonattainment areas. Both EPA and the states are moving forward
to implement the NOx SIP Call. It is important to note thatNewJersey is implementing its NOx SIP Call rules requiring source compliance by 2003.

Finally, contrary to the commenter's conclusions, EPA's modeling to determine the region-wide impacts of the NOx SIP Call clearly shows that regional transport ofozone and its precursors is impacting nonattainment

areas several states away. This analysis

was upheld bythe court inMichigan.

C. Commentson RACM

Comment:Several commenters have statedthat there is no evidence that NewJersey has adopted reasonably available control measures (RACM) or that the SIPs provide for attainment as expeditiously as practicable. Specifically, the lack ofTransportation Control Measures (TCMs) was cited in several comments, but commenters also raised concerns about potential stationary source controls. One
commenter statedthat mobile source emissionbudgets in the plans are by definition inadequate because the SIPs donot demonstrate timely attainment or contain the emissions reductions required for all RACM. That commenter claims thatEPA may not find adequate

amotor vehicle emission budget (MVEB) that is derived from a SIP that is inadequate for thepurpose for which it is submitted. The commenter alleges that none ofthe MVEBs submittedby the states that EPAis considering for adequacy is consistent withthe level of emissions achieved by implementation ofall RACM, nor are they derived from SIPs thatprovide for attainment. Some
commenters stated that for measures that are not adopted into the SIP, the
state must provide ajustification for why the measures were determined to not be RACM.

Response:EPA reviewed the initial SIP submittals for the Northern New Jersey and Trenton NAA and determined that they did not include sufficient documentation concerning available RACM measures. For all ofthe

severe areas for which EPAproposed approval in December 1999, EPA consequently issued policy guidance memorandum to have these states address the RACM requirement through an additional SIP submittal. (Memorandum ofDecember 14, 2000, from John S. Seitz, Director, Office of Air Quality Planning and Standards, re: "Additional Submission on RACM from
states with Severe 1-hour Ozone Nonattainment Area SIPs").

New Jersey supplemented its original SIP with an analysis ofRACM (request
to parallel process submitted onJune 18, 2001 and adopted revision submitted on October 8, 2001). EPA proposed to approve this supplement to the SIP asmeeting the RACM requirements on September 24, 2001 (66 FR 48847). Based onthis supplement, EPA concluded thatthe SIP for the Northern New Jersey and Trenton NAA
meets the requirement for adopting RACM. Section 172(c)(1) ofthe CAArequires SIPs to contain RACM and provides for

areas to reach attainment as expeditiously aspracticable. EPA has previously provided guidance interpreting therequirements of 172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its interpretation thatpotentially available

measures that would not advance the attainment date for an area would not be considered RACM. EPA also indicated in that guidance that states should consider allpotentially available

measures to determine whether they

were reasonably available for implementation in the area, and whether they would advance the attainment date. Further, states should indicate in their SIP submittals whether

measures considered were reasonably available or not, andifmeasures are reasonably available they must be adopted as RACM.

Finally, EPAindicated that states couldreject measures asnot being RACM because they would not advance the attainment date, would cause substantial widespread andlong-term adverse impacts, would be economically

ortechnologically infeasible, orwould be unavailable based on local considerations, including costs. The EPA also issued a recent memorandum re-confirming the principles in the earlier guidance, entitled, "Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas." John S. Seitz, Director, Office ofAir Quality Planning and Standards. November 30, 1999. Web site: http://www.epa.gov/ttnl oarpg/tlpgm.html.

OnJune 18, 2001, New Jersey submitted aproposed analysis of Reasonably Available Control Measures (RACM)for the Northern NewJersey and Trenton NAA which was adopted afterpublic hearing on October 8, 2001 without substantive changes. The RACM analysis included an evaluation ofpotential transportation control

measures (TCMs) for onroad mobile
sources, potential control measures for point, area and offroad sources, and other non-TCM onroad control

measures. NewJersey rankedthe source categories by emission level to identify

source categories with the greatest potential for additional control measure benefits, above andbeyond whatthe State is already implementing, that would advance the 2005 or 2007 attainment dates. Individual measures
were then evaluated with regard to their technical feasibility, economic feasibility and the speed at which they couldbe implemented. Finally, the

sums ofthe estimated emissions benefits fromthe potentially implementable measures were then compared to the emission reductions required to advance the attainment dates for each nonattainment area. This analysis was performed for the New Jersey portions ofthe two severe nonattainment areas, the Trenton NAA and the Northern NewJersey NAA.

1.Consideration and Implementation of Transportation Control Measures (TCMs)

Fifteen prospective mobile source

measures were examined to determine if any ofthese TCMs couldbe considered reasonably available control measures. The candidate measures were screened
to determine ifthey were available for potential implementation, and then each measure analyzed forits potential emissions reduction benefit, economic impact, practicability and potential adverse impact by nonattainment area.

The mobile source measures analyzed

were grouped into the following five categories; Travel Demand Management and Commuter Choice, Transportation Pricing Strategies and Scenarios, Traffic FlowImprovements, Transit Projects and Transit Oriented Design and Vehicle Fuel and Technology. In addition,two non-mobile source land

use related measures were examined which have the potential to reduce vehicle miles traveled and vehicle emissions.

The State's analysis found that none ofthe TCM's, singularly orin combination, will yield emissions benefits sufficient to advance the attainment dates for the respective New Jersey ozone nonattainment areas. The
range ofcombined emissions benefits fromVOC and NOx was 0.0 tons/day to 2.054 tons/day in the New Jersey portion ofthe Northern New Jersey NAA and from 0.0 tons/day to 1.10

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tons/day in the New Jersey portion of the Trenton NAA. In addition, the State also found that implementing certain

measures is not cost effective. These TCMs are not reasonably available at this time, normay they be able to generate significant emission reductions by the attainment date.

Two land use measures were also reviewed and evaluated for their potential impact toreduce vehicle miles traveled and emissions. The measures
were developed to achieve other State goals and include the statewide
programs: Open Space Preservation Program in which the State commits to preserving 1,000,000 acres ofopen space over a ten-year period, and New Development and Redevelopment Plan which isbased on "smart growth" principles.

The Open Space Preservation Program

cannot be phased in any faster and, therefore, cannot advance the ozone attainment dates in the NewJersey NAAs. The State Development and Redevelopment Plan is a voluntary plan andhas no force oflaw under municipal home rule. This limits EPA's ability to enforce such aprogram as part of a SIP. It also requires long lead times before it couldbe effective on a regional scale and it is not anticipated to advance the attainment dates in the NewJersey nonattainment areas.
2.Consideration and Implementation of Stationary Source, Area Source, and otherNon-TCM Measures

The projected attainment year VOC andNOx emission inventories were separately sorted by source category for each nonattainment area. All source categories with emissions offive tons per day or greater were examined for potential application ofnew control

measures. The State evaluated 29 VOC

source categories and 25 NOx source categories. The analysis for feasibility of potential controls for each source category included evaluation ofthe potential emissions reduction benefit, technical and economic feasibility, and analysis ofwhether the measure could be implemented in time to advance the attainment date.

Six potentially implementable control

measures were identified with a combined potential emission reduction benefit of2.2 tons per day ofVOC and 0.4 tons per day ofNOx in 2004 for the Trenton NAA and 7.3 tons per day of VOC and 3.3 tons per day ofNOx in 2006 for the Northern NewJersey NAA. Based on a comparison ofthe emission reductions which are scheduled to

occur in the year immediately before the attainment year, the combined benefit of the potential control measures resulted in less emission reductions. Therefore,

no TCM or othermeasure, either singularly or combined, has been identified which could advance the attainment dates ofeither area andbe considered RACM.

New Jersey evaluated all source categories that could contribute meaningful emission reductions. An extensive list ofpotential control

measures was identified and reviewed. The State considered the time needed to implement these measures as a further

screen oftheir reasonableness and availability. However, EPAbelieves that

some ofthese control measures may offer some benefits in the future for
purposes ofan 8-hour ozone standard, andrecommends thatNew Jersey and other states in the OTR revisit these controls in the context of any future planning obligations.

Therefore, EPA proposed in the September 24, 2001 Federal Register (66 FR 48847) to approve New Jersey's RACM analysis and its finding that no additional measures, individually or as combined measures, were technically and economically feasible nor would they advance the 1-hour ozone attainment dates.

Although EPA does notbelieve that section 172(c)(1) requires implementation of additional measures for the NewJersey NAAs, this conclusion is not necessarily valid for other areas. Thus, a determination of RACM is necessary on acase-by-case basis andwill depend on the circumstances for the individual area. In addition,ifin the future EPAmoves forward to implement another ozone standard, thisRACM analysis would not control what is RACM for these or any other areas for that other ozone standard.

Also, EPA has long advocated that
states consider the kinds ofcontrol

measures thatthe commenters have suggested, andEPA has indeed provided guidance onthose measures. See, e.g., http://www.epa.gov/otaql transp.htm.In order to demonstrate that they will attain the 1-hour ozone NAAQS as expeditiously aspracticable,

some areas may need to consider and adopt anumber ofmeasures, including the kind that NewJersey itselfevaluated in its RACM analysis, that even collectively do not result in many emission reductions. Furthermore, EPA
encourages areas to implement technically available and economically feasible measures to achieve emissions reductions in the short term-even if suchmeasures donot advance the attainment date-since such measures will likely improve air quality. Also,

over time, emission control measures that may not be RACM nowfor an area may ultimatelybecome feasible forthe

same area due to advances in control technology or more cost-effective implementation of all techniques. Thus,

areas should continue to assess the state ofcontrol technology as they make progress toward attainment and consider new control technologies that may in factresult in more expeditious improvement in air quality.

Because EPA is finding thatthe SIP
meets the CAA's requirement for RACM and thatthere areno additional reasonably available control measures that can advance the attainment date, EPA concludes thatthe attainment dates being approved are as expeditious as practicable.

EPA previously responded to comments concerning the adequacy of MVEBs when EPA tookfinal action determining the budgets adequate and does not address those issues again here. The previous responses are found
athttp://www.epa.gov/otag/transpl conform/nJrspnd.pdf.

D.Approvalof Attainment DemonstrationsThatRely on State CommitmentsorStateRulesfor EmissionLimitationstoLower Emissionsin theFutureNot Yet Adopted bya Stateand/or Approvedby EPA
Comment:Several commenters disagreed with EPA's proposal to approve states' attainment andrate of
progress demonstrations because not all ofthe emissions reductions assumed in the demonstrations (a)have actually taken place, (b) are reflected in rules yet to be adopted and approved by a state and approved by EPA as part ofthe SIP, and (c) are credited legally as part ofa demonstration because they are not approved by EPA as part ofthe SIP. Also a commenter maintains thatEPA does not have authority to accept enforceable state commitments to adopt

measures inthe future in lieu ofcurrent adopted measures to fill anear-term shortfall ofreductions.

New Jersey submitted an enforceable commitment on April 26, 2000, to participate inthe OTC process and to adopt measuresby October 31, 2001. NewJersey did participate in the OTC process, however, the deadline for choosing and adopting shortfall

measures has come andgone. So far, NewJersey has not submitted anything
to EPA which states which control

measures NewJersey plans to use to address the shortfall. Nor has New Jersey adopted measures to address the required emission shortfall reductions.

With respectto the commitments fromNew Jersey, the commenters 

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contend that the emissions gap mustbe closed now. Deferred adoption and submittal are not consistent with the statutory mandates and are not consistent with the CAA's demand that all SIPs contain enforceable measures. EPA does not have authority to approve

a SIP ifpart of the SIP is not adequate
to meet all tests for approval. Because the submittal consists in part of commitments, NewJersey has not adopted rules implementing final control strategies, and the plan includes insufficient reduction strategies to meet the emission reduction goals established by NewJersey. Thus, NewJersey has failed to adopt a SIP with sufficient adopted and enforceable measures to achieve attainment. Forthese reasons, the submittal also does not meet the definition ofa "full attainment demonstration SIP," in a consent decree EPA entered into in NRDCv. Browner, Civ. No. 99-2976 (D.CT. D.C.), which obligates EPA topropose a federal implementation planby November 30, 2001 ifEPA has not fully approved the NewJersey 1-hour Ozone Attainment Demonstration SIP by that date. 5 For these reasons, EPA should reject the NewJersey 1-hour Ozone Attainment Demonstration SIP andimpose sanctions on the area and publish a proposed FIP no later than October 15, 2001.

Response:EPA disagrees with the comments, andbelieves, consistent with past practice, thatthe CAAallows full approval ofenforceable commitments that are limited in scope where circumstances exist thatwarrant the use ofsuch commitments in place of adopted measures. 6 Once EPA determines that circumstances warrant consideration of an enforceable commitment, EPAbelieves that three factors shouldbe considered in determining whether to approve the enforceable commitment: (1)Whether

5Since this comment was submitted, the court granted an extension from November 30, 2001 to January 15, 2002.

6These commitments are enforceable by theEPA
and citizens under, respectively, sections 113 and 304 ofthe CAA. In the past, EPA has approved enforceable commitments and courts have enforced these actions against states that failed to comply with those commitments. See, e.g., AmericanLung Ass'n ofN.J v.Kean, 670 F. Supp.1285 (D.N.J. 1987), affd, 871 F.2d 319 (3rd Ch. 1989); ARDCv.
N.Y. StateDept.ofEnvs. Cons., 668 F. Supp. 848 (S.D.N.Y.1987); Citizens foraBetterEnv'tv. Deukmejian,731 F. Supp. 1448, recon.granted in
part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition forCleanAirv. South Coast Air Quality Mgt.Dist.,
No. CV 97-6916 HLH, (C.D. Cal. Aug. 27, 1999). Further, ifa state fails to meet its commitments, EPA could make a finding offailure to implement the SIPunder section 179(a) ofthe CAA, which
starts an 18-month period for the State to begin implementation before mandatory sanctions are imposed. the commitment addresses alimited portion ofthe statutorily-required program; (2)whether the state is capable offulfilling its commitment; and (3) whether the commitment is for a reasonable and appropriate period of time.

It is also noted that while NewJersey does rely on commitments to adopt additional measures asrequested by EPA to insure demonstrating attainment, it does not rely on commitments to demonstrate RFP. See 66 FR 47419, September 12, 2001. New Jersey's RFP plans, discussed above, demonstrate RFP with VOC and NOx emission reductions achieved within the nonattainment area by the implementation offully promulgated Federal and fully adopted SIP-approved
state measures.

As an initial matter, EPAbelieves that present circumstances for the New York City, Philadelphia, Baltimore and Houston nonattainment areas warrant the consideration ofenforceable commitments. The Northeast states that make up the New York, Baltimore, and Philadelphia nonattainment areas submitted SIPs thatthey reasonably believed demonstrated attainment with fully adopted measures. After EPA's initial review ofthe plans, EPA recommended tothese areas that additional controls would be necessary to ensure attainment. Because these

areas had already submitted plans with many fully adopted rules and the adoption of additional rules would take

some time, EPAbelieved itwas appropriate to allow these areas to supplement their plans with enforceable commitments to adopt and submit control measures to achieve the additional necessary reductions. For New Jersey's attainment demonstrations for the Northern NewJersey and Trenton NAA, EPAhas determined that the submission ofenforceable commitments inplace of adopted control measures for these limited sets ofreductions will not interfere with either area's ability to meet the attainment obligation.

EPA's approach here ofconsidering enforceable commitments that are limited in scope is not new. EPA has historically recognized that under certain circumstances, issuing full approval may be appropriate for a submission that consists, in part, ofan enforceable commitment. See e.g., 62 FR 1150, 1187, Jan. 8, 1997 (ozone attainment demonstration for the South Coast Air Basin; 65 FR 18903, Apr. 10, 2000 (revisions to attainment demonstration for the South Coast Air Basin); 63 FR 41326, Aug. 3, 1998 (federalimplementation plan for PM-10 for Phoenix); 48 FR 51472 (state implementation plan for NewJersey). Nothing inthe CAA speaks directly to the approvability ofenforceable commitments. 7However, EPAbelieves that its interpretation is consistent with provisions ofthe CAA. For example, section 110(a)(2)(A) provides that each SIP "shall include enforceable emission limitations and other control measures,

means ortechniques.

. . as wellas schedulesandtimetables for compliance,as maybe necessary or appropriate to met the applicable requirement ofthe CAA." (emphasis added). Section 172(c)(6) ofthe CAA requires, as a rule generally applicable
to nonattainment SIPs, that the SIP "include enforceable emission limitations and such other control
measures, means or techniques

. . . as maybenecessaryorappropriate to provide for attainment.

. . by the applicable attainment date

... " (emphasis added.) The emphasized
terms mean that enforceable emission limitations and other control measures do notnecessarily need to generate reductions in the full amount needed to reach attainment. Rather, the emissions limitations and other control measures maybe supplemented with other SIP rules-for example, the enforceable commitments EPAis approving todayas long as the entire package of

measures andrules provides for attainment.

As provided, after concluding that the circumstances warrant consideration of

an enforceable commitment-as they do for the Northern NewJersey and Trenton NAAs-EPA would consider three factors in determining whether to approve the submitted commitments. First, EPAbelieves thatthe commitments mustbe limited in scope. In 1994, in considering EPA's authority under section 110(k)(4) to conditionally
approve unenforceable commitments, the Court ofAppeals for the District of Columbia Circuit struck down an EPA policy that would allow states to submit (under limited circumstances) commitments for entire programs. Natural ResourcesDefenseCouncilv. EPA, 22 F.3d 1125 (D.C. Cir. 1994). While EPA does not believe that case is directly applicable here because the commitments made here are limited in
scope. EPA agrees with the Court that

7Section 110(k)(4) provides for "conditional approval" ofcommitments thatneed notbe enforceable. Under that section, astate maycommit to "adopt specific enforceable measures" within one-year ofthe conditional approval. Ratherthan enforcing such commitments against the state, the CAAprovides thatthe conditional approval will convert to adisapproval if"the statefails tocomply withsuchcommitment." 5163

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otherprovisions in the CAA contemplate that a SIP submission will consist ofmore than a mere commitment. See NRDC,22 F.3d at 1134.

In the present circumstances, the commitments address only a small portion ofNewJersey's attainment plans. Forthe Trenton NAA, the commitment addresses only 10.6 percent and 0.7 percent ofthe total VOC andNOx emissions reductions, respectively, necessary to attain the standard. For the Northern New Jersey NAA, the commitment addresses only 9.1 percent ofthe VOC and 0.8 percent ofthe NOx emissions reductions
necessary to attain the standard. A summary ofthe adopted control

measures and other components credited in NewJersey's attainment demonstration submission are discussed in Section II ofthis document. These adopted and implemented control

measures are the majority ofthe total emissions reductions needed to demonstrate attainment.

As tothe second factor, whether the State is capable offulfilling the commitment, EPA considered the
current or potential availability of

measures capable of achieving the additional level ofreductions represented by the commitment. Forthe New York, Philadelphia and Baltimore nonattainment areas, EPA believes that there are sufficient untapped sources of emission reductions that could achieve the minimal levels ofadditional reductions thatthe areas need. This is supported bythe recent recommendation ofthe Ozone Transport Commission (OTC) regarding specific controls that could be adopted to achieve the level ofreductions needed for each ofthese three nonattainment

areas. Thus, EPAbelieves thatthe states will be able to find sources of reductions to meet the shortfall. The
states that comprise the New York, Philadelphia and Baltimore nonattainment areas are making significant progress toward adopting the

measures to fillthe shortfall. The OTC, ofwhich NewJersey is a part, has performed an extensive study and model rule development effort. Public meetings were held and the OTC model rules where also made available for
comment. On March 29, 2001 the OTC recommended a set ofcontrol measures and model rules. Currently, the states

are working through their adoption processes with respect tothose, and in

some cases other, control measures.

New Jersey was an active participant in the OTC rule development effort and concurred on therecommendation that the Northeast States adopt these measures. NewJersey's involvement and support for these regional measures is evidence ofNewJersey's intent to also adopt them statewide. This was demonstrated when NewJersey took to public hearing a SIP revision which identified the specific control measures they would be proceeding with rulemaking on, alongwith a description ofthe measures andprojected emission reductions. This was submitted as part ofthe adopted October 8, 2001 SIP revision. NewJersey is well underway with theregulatory development
process for these measures. While New Jersey has not made the submission on the date to which it committed, EPA believes that itis making sufficient progress to support approval ofthe attainment demonstration because, within a short time period, NewJersey will adopt andimplement measures that

are fully consistent with the Northern New Jersey and Trenton NAAs attaining the standard by its approved attainment date.

The third factor, EPA has considered in determining to approve limited commitments forthe NewJersey attainment demonstrations is whether the commitment isfor areasonable and appropriate time period. EPArecognizes that both the CAA and EPAhave historically emphasized the need for submission of adopted control measures in order to ensure expeditious implementation and achievement of required emissions reductions. Thus, to the extent that otherfactors, such as the need to consider innovative control strategies orthe need to work aspart of

amulti-state effort, support the consideration ofan enforceable commitment in place of adopted control

measures. The commitment should provide for the adoption ofthe necessary control measures on an expeditious, yet practicable, schedule.

As provided above, for New York, Baltimore andPhiladelphia, EPA proposed thatthese areas have time to work within the framework ofthe OTC
to develop, ifappropriate, aregional control strategy to achieve the necessary reductions and then to adopt the controls on a state-by-state basis. In the proposed approval ofthe attainment demonstrations, EPA proposed that these areas would have approximately 22 months (untilOctober 31, 2001), to complete the OTC and state-adoption
processes.

As a starting point in suggesting this time frame for submission ofthe adopted controls, EPAfirst considered the CAA "SIP Call" provision ofthe CAA-section 110(k)(5)-which provides states with up to 18 months to submit a SIP after EPArequests a SIP revision. While EPAmay have ended its inquiry there, andprovided for the
states to submit the measures within 18 months ofit'sproposed approval ofthe attainment demonstrations, EPAfurther considered thatthese areas are all located within the Northeast Ozone Transport Region (OTR) and determined that itwas appropriate to provide these

areas with additional timeto work through the OTR process to determine if regional controls wouldbe appropriate for addressing the shortfall. See e.g., 64 FR 70428. EPAbelieved that allowing these states until 2001 to adopt these additional measures would not undercuttheir attainment dates of November 2005 or 2007.

EPA still believes, consistent with the memoranda ofunderstanding signed by Robert C. Shinn, Commissioner, New Jersey Department ofEnvironmental Protection, that itis New Jersey's stated intention topropose, adopt and implement the identified control

measures. The actual OTC model regulation development process took longer than EPA anticipated, 15 months ofthe 22 months that EPAhad thought the complete effort should take. This onlyleft the states in the OTC seven months to complete the individual state regulatory adoption process. Although,

as described below, NewJersey did not make its submission bythat date, EPA believes thatthe State is sufficiently on track and that the SIP should not be disapproved atthis time. Moreover, if EPA or citizens are concerned about the delay in adoption ofthe measures, EPA and citizens have the abilityto take action under CAA (e.g., sections 179(a) and (b) and 304)to ensure NewJersey completes the adoption process.

New Jersey is well underway with the regulatory development process for all six ofthe OTC model rules, which include consumer products and architectural and industrial coatings rules, a mobile equipment refinishing rule, solvent cleaning rule, controls on portable fuel containers as well asthe NOx model rule (NOxreductions from

sources that are notincluded in the 1994 OTC NOx Memorandum of Understanding for regional NOx reductions or covered byEPA's NOx SIP Call). EPAbelieves that NewJersey is making sufficient progress to support approval ofthe commitment, because NewJersey will adopt and implement the additional measures well within a timeperiod fully consistent with New Jersey attaining the standard by November 15, 2005 for the Trenton NAA and November 15, 2007for the Northern New Jersey NAA. In a letter dated December 11, 2001, NewJersey provided additional information on 

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their progress in addressing the shortfall in emission reductions. See also section II.F. for further discussion on New Jersey's commitment.

The enforceable commitments submittedby NewJersey for the Northern New Jersey and Trenton NAAs, in conjunction with the other SIP

measures and other sources ofemissions reductions, constitute the required demonstration of attainment and the commitments will not interfere with the area's abilityto make reasonable progress under section 182(c)(2)(B) and (d). EPAbelieves that the delay in submittal ofthe final rules is permissible under section 110(k)(3) because New Jersey has obligated itself
to submit therules by specified shortterm dates, because it ismaking reasonable efforts to adopt and submit them andbecause the State's commitment is enforceable byEPA and the public. Moreover, as discussed in the December 16, 1999 proposal, its Technical Support Document (TSD), and Section II ofthis document, the SIP submittal approved today contains major substantive components submitted as adopted regulations and enforceable orders.

EPAbelieves thatthe NewJersey SIP
meets the NRDC Consent Decree definition ofa "full attainment demonstration." The consent decree defines a "full attainment demonstration" as a demonstration according to CAA section 182(c)(2). As

awhole, the attainment demonstration-consisting of photochemical grid modeling, adopted control measures, an enforceable commitment with respect to a limited portion ofthe reductions necessary to attain, and other analyses and documentation-is approvable since it "provides for attainment ofthe ozone [NAAQS] by the applicable attainment date." See section 182(c)(2)(A).

Comment:One commenter raises

concerns regarding the enforceability of NewJersey's commitments to adopt and submitthe additional control measures to achieve additional emission reductions necessary for attainment. Specifically, the commenter is concerned thatthe lack of specific identified measures and specific identified emission reductions associated with those measures undercuts their enforceability. The
commenter suggests thatthe commitments made by New York and NewJersey are more "discretionary" than the types ofcommitments that
courts have enforced in the pastbecause these state's commitments do not identify specific measures. Response:EPA believes thatthe CAA provides for enforcement ofthe terms of

an approved SIP. See e.g., CAA 304(a)(1) and (f). Thus, in a case where a state commits to adopt a specific control strategy thatwill achieve a specific level ofreductions by a specific date, the
courtmay require the state to take action to adopt that measure and achieve the prescribed level of reductions. In the case, such as here, where the state commits to adopt and submitby a specific date measures to achieve a certain level ofemission reductions, the court may order the state to adopt measures to achieve that level ofreductions. Simply because the state retains authority regarding theprecise mix ofcontrols that itmay adopt, does
not interfere withthe enforceability of the commitment to achieve the level of reductions necessary for attainment. EPA has determined that there are sufficient available controls to achieve the level ofreduction to which the State has committed. This determination is supported bythe recommendation of the OTC regarding specific controls. Thus, EPA believes thatthe commitment submittedby NewJersey is enforceable by EPA and citizens and that a court could order the State to adopt controlmeasures that will achieve the level ofreductions necessary for attainment.

Comment:The mid course review process outlined by NewJersey is not a permissible substitute for a currently complete attainment demonstration or adopted enforceable controlmeasures. The mid course review will delay final approval ofthe SIP until 2004, 10 years after the SIP was required under the CAA.

Response:The mid course review is
not intended as a replacement for a complete attainment demonstration or

as areplacement for adopted control

measures. Rather, itis intended to reflect thereality that the modeling techniques and inputs are uncertain. Thus, EPA provided in its modeling guidance that theprogress of implementing the plan shouldbe evaluated so that adjustments canbe made to ensure theplan is successful. EPA isfully approving the attainment demonstration because based on the information currently available, EPA believes that itwill provide for attainment. However, the mid course review allows the state and EPA an opportunity to consider additional information closer to the attainment date to assess whether adjustments are necessary. In the case ofNew Jersey, the State has extensive plans to fully evaluate the inputs to the model andthe modeling itselfusing the most up to date information possible. The State will alsobe evaluating several new control measures forinclusion in the SIP. We are fully supportive ofthis continued evaluation ofthe science supporting the plan to reach attainment.

E.Adequacy of MotorVehicle Emissions Budgets

Comment:Wereceived a number of
comments about the process and substance ofEPA's review ofthe adequacy ofmotor vehicle emissions budgets for transportation conformity purposes.

Response:EPA's adequacy process for these SIPs hasbeen completed, and we have found the motor vehicle emissions budgets in all ofthese SIPs to be adequate. Wehave already responded to any comments related to adequacy of the budgets that we are approving in this action, when we issued our adequacy findings. Therefore we are not listing the individual comments or responding to them here. All of our findings of adequacy and responses to comments canbe accessed at www.epa.gov/otaq/traq(once there, click on the "conformity" button). At the web site, EPA regional contacts are identified.

On September 12, 2001 (66 FR 47419),

we proposed to approve the transportation conformity budgets for the Northern NewJersey and Trenton NAAs. See Table 2.We received no specific comments on NewJersey's budgets. In thisfinal rule we are approving these budgets.

F.AttainmentDemonstrationandRate ofProgress MotorVehicleEmissions Inventories

Comment:Several commenters stated thatthe motor vehicle emissions inventory is not current, particularly with respect to the fleet mix. Commenters stated thatthe fleet mix does not accurately reflect the growing proportion ofsport utility vehicles and gasoline trucks, which pollute more than conventional cars. Also, a commenter statedthat EPA and states have not followed a consistent practice in updating SIP modeling to account for changes in vehicle fleets.For these
reasons, commenters recommend disapproving the SIPs.

Response:All ofthe SIPs on which

we are taking final action are based on the most recentvehicle registration data available at the time the SIP was submitted. The SIPs use the same vehicle fleet characteristics that were usedin the most recent periodic inventory update. New Jersey used 1999 vehicle registration data, including information on sports utilityvehicles, 

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for modeling and inventory purposes. EPA requires the most recent available datato be used,but we do not require it to be updated on a specific schedule. Therefore, different SIPs base their fleet mix on different years ofdata. Our guidance does not suggest that SIPs shouldbe disapproved onthis basis. Nevertheless, we do expect that revisions to these SIPs that are submitted using MOBILE6 (as required in those cases where the SIP is relying

on emissions reductions from the Tier 2 standards) will use updated vehicle registration data appropriate for use with MOBILE6, whether itis updated local data or the updated national default data that will be part of MOBILE6.
G. VOCEmissionReductions

Comment:For states that need additional VOC reductions, one commenter recommends a process to achieve these VOC emission reductions, which involves the use ofHFC-152a (1,1 difluoroethane) as theblowing agent in manufacturing ofpolystyrene foam products such as food trays and eggcartons. The commenter states that HFC-152a, afluorine compound, could be used instead ofhydrocarbons, a known pollutant, as ablowing agent. Use ofHFC-152a, which is classified as VOC exempt, would eliminate nationwide the entire 25,000 tons/year ofVOC emissions from this industry.

Response:EPA has met with the
commenter andhas discussed the technology described bythe company to reduce VOC emissions from polystyrene foam blowing through the use ofHFC152a (1,1 difluoroethane), which is a VOC exempt compound, as a blowing agent. Since the HFC-152a isVOC exempt, itsuse could result in a VOC reduction compared to the use ofVOCs such a pentane orbutane as a blowing agent. However, EPA has not studied this technology exhaustively.

It is each state's prerogative to specify which measures itwill adopt in order to achieve the additional VOC reductions it needs. In evaluating the use ofHFC152a, states may want to consider claims thatproducts made with this blowing agent are comparable in quality
to products made with other blowing agents. Also the question ofthe over-all long term environmental effect of encouraging emissions offluorine compounds would be relevant to consider. UsingHFC-152a as ablowing agent is a technology which states may want to consider, but ultimately, the decision ofwhether torequire this particular technology to achieve the necessary VOC emissions reductions
must be made by each affected state. Finally, EPAnotes thatunder the significant new alternatives policy (SNAP) program, created under CAA section 612, EPA has identified acceptable foam blowing agents many of which are not VOCs (http:// www.epa.gov/ozone/title6/snap/).

H. Credit forMeasuresNotFully Implemented
Comment:States shouldnot be given credit for measures that are not fully implemented. For example, the states

are being given full credit for Federal coating, refinishing and consumer product rules that have been delayed or weakened.

Response:Architectural and Industrial Maintenance (AIM)Coatings: OnMarch 22, 1995 EPAissued a memorandum 8 that provided that states could claim a 20 percent reduction in VOC emissions from the AIM coatings category in ROP and attainment plans based onthe anticipated promulgation ofa national AIM coatings rule. In developing the attainment andROP SIPs for their nonattainment areas, states relied on this memorandum to estimate emission reductions from the anticipated national AIM rule. EPA promulgated the final AIM rule in September 1998, codified at40 CFR part 59, subpart D. In the preamble toEPA's final AIM coatings regulation, EPA estimated thatthe regulation will result in 20 percent reduction ofnationwide VOC emissions from AIM coatings categories (63 FR 48855). The estimated VOC reductions from the final AIM rule resulted in the same level as those estimated in the March 1995 EPApolicy memorandum. In accordance with EPA's final regulation, states have assumed a 20 percent reduction from AIM coatings source categories in their attainment andROP plans. AIM coatings manufacturers were required to be in compliance with the final regulation within one year of promulgation, except for certain pesticide formulations which were given an additional year to comply. Thus all manufacturers were required to comply, atthe latest, by September 2000. Industry confirmed in comments

onthe proposed AIM rule that 12 months between the issuance ofthe final rule and the compliance deadline would be sufficient to "use up existing label stock" and "adjust inventories" to conform to the rule. 63 FR 48848 (September 11, 1998). In addition, EPA

8 "Credit for the 15 Percent Rate-of-Progress Plans for Reductions from theArchitectural and Industrial Maintenance (AIM)Coating Rules," March 22, 1995, fromJohn S.Seitz, Director, Office of AirQuality Planning and Standards toAir Division Directors, Regions I-X. determined that, after the compliance date, the volume ofnonconforming products would be very low (less than

one percent) and wouldbe withdrawn fromretail shelves anyway. Therefore, EPAbelieves that compliant coatings

were in useby the Fall of 1999 with full reductions to be achieved by September 2000 and thatit was appropriate for the
states to take credit for a 20 percent emission reduction in their SIPs.

Autobody Refinish Coatings Rule: Consistentwith a November 27, 1994 EPApolicy,9many states claimed a 37 percent reduction from this source category based on aproposed rule. However, EPA's final rule, "National Volatile Organic Compound Emission Standards forAutomobile Refinish Coatings," published on September 11, 1998 (63 FR48806), did not regulate lacquer topcoats andwill result in a smaller emission reduction ofaround 33 percent overall nationwide.

The 37 percent emission reduction fromEPA's proposed rule was an estimate ofthe total nationwide emission reduction. Since this number is an overall national average, the actual reduction achieved in any particular

area could vary depending on the level ofcontrol which already existedin the

area. For example, in California the reduction from the national rule is zero because California's rules are more stringent than the national rule. In the proposed rule, the estimated percentage reduction for areas that were unregulated before the national rule was about 40 percent. However as a result of the lacquer topcoat exemption added between proposal and final rule, the reduction is now estimated to be 36 percent for previously unregulated

areas. Thus,most previously unregulated areas will need to make up the approximately one percent difference between the 37 percent estimate ofreductions assumed by states, following EPA guidance based on the proposal, and the 36 percent reduction actually achieved bythe final rule forpreviously unregulated areas.

EPA's best estimate ofthereduction potential ofthe final rule was spelled
outin a September 19, 1996 memorandum entitled "Emissions Calculations for the Automobile Refinish Coatings Final Rule" from Mark Morris to Docket No. A-95-18.

9"Credit for the 15 Percent Rate-of-Progress Plans forReductions from the Architectural and Industrial Maintenance (AIM) Coating Rule and the AutobodyRefinishing Rule," 11/29/94, John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-X. 

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Consumer Products Rule: Consistent with aJune 22, 1995 EPA guidance,10
states claimed a 20 percent reduction from this source category based on EPA's proposed rule. The final rule, "National Volatile Organic Compound Emission Standards for Consumer Products," (63 FR 48819), published on September 11, 1998, has resulted in a 20 percent reduction after the December 10, 1998 compliance date. Moreover, these reductions largely occurred by the Fall of 1999. In the Consumer Products rule, EPA determined andthe consumer products industry concurred, that a significant proportion of subject products have been reformulated in
response to state regulations and in anticipation ofthe final rule (63 FR 48819). That is, industry reformulated the products covered by the consumer products rule in advance ofthe final rule. Therefore, EPA believes that complying products in accordance with the rule were in useby the Fall of 1999. It was appropriate for the states to take credit for a 20 percent emission reduction for the consumer products rule in their SIPs.

L EnforcementofControlPrograms

Comment:The attainment demonstrations do not clearly set out programs for enforcement ofthe various control strategies relied on for emission reduction credit.

Response:In general, state enforcement, personnel and funding
program elements are contained in SIP revisions previously approved by EPA under obligations set forth in section 110(a)(2)(c) ofthe CAA. Once approved by EPA, there is no need for states to readopt andresubmit these programs with each and every SIP revision generally required by other sections ofthe CAA. In addition, emission control regulations will also contain specific enforcement mechanisms, such as record keeping and reporting requirements, and may also provide for periodic state inspections and reviews ofthe affected sources. EPA's review of these regulations includes review ofthe enforceability ofthe regulations. Rules that are not enforceable are generally
not approved by the EPA. To the extent that the ozone attainment demonstration depends on specific state emission control regulations, these individual regulations have undergone review by the EPAin past approval actions.

10"Regulatory Schedule for Consumer and
Commercial Products under section 183(e) ofthe Clean Air Act," June 22, 1995, John S. Seitz, Director OAQPS, to AirDivision Directors, Regions I-X. J.MOBILE6andMotor Vehicle EmissionsBudgets(MVEBS)

Comment:One commenter generally supports a policy ofrequiring motor vehicle emissions budgets to be recalculated when revised MOBILE6 models are released.

Response:The attainment demonstrations thatrely on Tier 2 emission reduction credit contain commitments to revise the motor vehicle emissions budgets after MOBILE6 is released. Comment:The revised budgets calculated using MOBILE6 will likely be submitted afterthe MOBILE5 budgets have already been approved. EPA's policy isthat submitted SIPs may not replace approved SIPs.

Response:Thisis thereason thatEPA proposed inthe July 28, 2000, a supplemental notice (65 FR 46383) that the approval ofthe MOBILE5 budgets for conformity purposes would last only until MOBILE6 budgets had been submitted andfound adequate. In this way, the MOBILE6 budgets can apply for conformity purposes as soon asthey

are found adequate.

Comment:Ifa state submits additional controlmeasures that affect the motor vehicle emissions budget, but does not submit a revised motor vehicle emissions budget, EPA shouldnot approve the attainment demonstration.

Response:EPA agrees. The motor vehicle emissions budgets in the Northern New Jersey and Trenton attainment demonstrations reflect the
motor vehicle control measures in the attainment demonstrations. In addition, New Jersey has committed to submit

new budgets as a revision tothe attainment SIP consistent with any new

measures submitted to fill any shortfall, ifthe additional control measures affect on-road motor vehicle emissions.

Comment:EPA should make it clear that the motor vehicle emissions budgets tobe used for conformity purposes will be determined from the total motor vehicle emissions reductions required in the SIP, evenifthe SIP does
not explicitly quantify arevised motor vehicle emissions budget.

Response:EPA will not approve SIPs without motor vehicle emissions budgets that are explicitly quantified for conformity purposes. The Northern New Jersey andTrenton attainment demonstrations contain explicitly quantified motor vehicle emissions budgets. Comment:Ifa state fails to follow through onits commitment to submit the revised motor vehicle emissions budgets using MOBILE6, EPA could make a finding offailure to submit a portion ofa SIP, which wouldtrigger a sanctions clock under section 179.

Response:Ifa state fails to meet its commitment, EPA could make a finding offailure to implement the SIP, which would start a sanctions clock under section 179 ofthe CAA.

Comment:Ifthebudgets recalculated using MOBILE6 are larger thanthe MOBILE5 budgets, then attainment shouldbe demonstrated again.

Response:As EPAproposed in its December 16, 1999 notices, we will workwith states on a case-by-case basis ifthe new emissions estimates raise issues about the sufficiency ofthe attainment demonstration.

Comment:Ifthe MOBILE6 budgets are smaller than the MOBILE5 budgets, the difference between the budgets should
notbe available for reallocation to other

sources unless air quality data show that the area is attaining, and arevised attainment demonstration is submitted that demonstrates that the increased emissions are consistent with attainment and maintenance. Similarly, the MOBILE5 budgets shouldnot be retained (whileMOBILE6 isbeing used for conformity demonstrations) unless the above conditions are met.

Response:EPA agrees that if recalculation using MOBILE6 shows lower motorvehicle emissions than MOBILE5, then these motor vehicle emission reductions cannot be reallocated to other sources or assigned
to the motorvehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment demonstration and shows that itwill still attain. In other words, the area must

assess how its original attainment demonstration is impacted by using MOBILE6 versus MOBILE5 before it reallocates any apparent motorvehicle emission reductions resulting from the

use ofMOBILE6. In addition, New Jersey will be submitting new budgets based onMOBILE6, so the MOBILE5 budgets will not be retained in the SIP indefinitely.

K.MOBILE6 GracePeriod
Comment:Wereceived a comment on whether the grace period before MOBILE6 is required in conformity determinations willbe consistent with the schedules for revising SIP motor vehicle emissions budgets within 1 or 2
years ofMOBILE6's release.

Response:This comment is not germane to this rulemaking, since the MOBILE6 grace period for conformity determinations is not explicitly tied to EPA's SIP policy and approvals. However, EPAunderstands that a longer grace period would allow some areas to better transition to newMOBILE6 

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budgets. EPA is considering the maximum 2-year grace period allowed by the conformity rule, and EPAwill address this in the future when the final MOBILE6 emissions model andpolicy guidance is released. Comment:One commenter asked EPA
to clarify in the final rule whether MOBILE6 will be required for conformity determinations once new MOBILE6 budgets are submitted and found adequate.

Response:This comment is not germane to this rulemaking. However, it is important to note that EPAintends to clarify its policy for implementing MOBILE6 in conformity determinations when the final MOBILE6 model is released. EPAbelieves thatMOBILE6 shouldbe used in conformity determinations once new MOBILE6 budgets are found adequate.

L. Two-Year OptionTo Revise the MVEBs

Comment:One commenter did not prefer the additional option for a second year before the state has to revise the conformity budgets withMOBILE6, since new conformity determinations and new transportation projects could be delayed in the second year.

Response:EPA proposed the additional option to provide further flexibility in managing MOBILE6 budget revisions. The supplemental proposal did not change the original option to revise budgets within one year of MOBILE6's release. State and local governments can continue touse the 1-
year option,ifdesired, or submit a new commitment consistent with the alternative 2-year option. EPA expects that state and local agencies have consulted onwhich option is appropriate and have considered the impact onfuture conformity determinations. NewJersey has committed to revise itsbudgets within one-year ofMOBILE6's release.

M.Measures forthe 1-HourNAAQS and forProgressToward8-HourNAAQS

Comment:One commenter notes that EPA hasbeen working toward promulgation ofa revised 8-hour ozone National Ambient Air Quality Standard (NAAQS)because the Administrator deemed attaining the 1-hour ozone NAAQS is not adequate to protect public health. Therefore, EPA must

ensure that measuresbe implemented

now that will be sufficient to meet the 1-hour standard and that make as much progress toward implementing the 8- hour ozone standard as the requirements ofthe CAA and implementing regulations allow. Response:The 1-hour standard remains in effect for all ofthese areas andthe SIPs that have been submitted

are for the purpose ofachieving thatthe 1-hour ozone NAAQS. Congress has provided the states with the authority to choose the measures necessary to attain the NAAQS and EPA cannot second guess the states' choice ifEPA determines thatthe SIP meets the requirements ofthe CAA. EPA believes that the SIPs for the severe areas meet the requirements for attainment demonstrations for the 1-hour standard andthus, could not disapprove them

even ifEPA believed other control requirements might be more effective for attaining the 8-hour standard. However, EPA generally believes that emission controls implemented to attain the 1- hour ozone standard will be beneficial towards attainment ofthe 8-hour ozone standard as well. This is particularly
true regarding the implementation of NOx emission controls resulting from EPA's NOx SIP Call. Finally, EPA notes that although the 8-hour ozone standard has been adopted bythe EPA, implementation ofthis standard has been delayed while certain aspects of the standard remain before the United States Circuit Court ofAppeals. The
states and the EPA have yet to define the 8-hour ozone nonattainment areas andthe EPAhas yet to issue guidance andrequirements for the implementation ofthe 8-hour ozone standard.

N. AttainmentandPost1999 ReasonableFurther Progress Demonstrations
Comment:One commenter claims that the plans fail to demonstrate emission reductions of 3percent per year over each 3-year period between November 1999 and November 2002; and November 2002 and November 2005; andthe 2-year period between November 2005 and November 2007, as required by42 U.S.C. section 7511a(c)(2)(B). The states have not even attempted to demonstrate compliance with these requirements, andEPA has
not proposed to find that they have been
met.

The EPAhas absolutely no authority
to waive the statutorymandate for 3 percent annual reductions. The statute does not allow EPA touse the NOx SIP Call or 126 orders as an excuse for waiving ROP deadlines. The statutory ROP requirement is for emission reductions-not ambientreductions. Emission reductions in upwind states donot waive the statutory requirement for 3percent annual emission reductions within the downwind nonattainment area. Response:Under no condition is EPA waiving the statutory requirement for 3 percent annual emission reductions. For
many areas, EPA did not propose approval ofthe post-99 RFP demonstrations at the same time as EPA proposed action onthe area's attainment demonstration. NewJersey submitted its Post-99RFP Plans on April 11, 2001 and EPAproposed approval on September 12, 2001 (66FR 47419). EPA is approving the RFP Plans as part ofthis action. Moreover, EPA has not provided that area's may rely onupwind reductions for purposes ofmeeting the ROPrequirements. Rather, states, including NewJersey, are relying oninstate NOx and VOCmeasures to meet the ROP requirement.

IV. Conclusion

As described above, EPA does not believe any ofthe comments we received on the proposals published for the attainment demonstrations for the NewJersey portions ofthe Northern NewJersey and the Trenton ozone NAAs should affect EPA's determination thatthe SIP is fully approvable as meeting the attainment demonstration requirements of sections 182(c)(2) and (d) ofthe CAA. EPA is approving several SIP revisions that relate to attainment ofthe one-hour

ozone standard in NewJersey. The SIP revisionsinclude NewJersey's one-hour

ozone attainment demonstrations for the state's portions ofthe Northern New Jersey andthe Trenton NAAs, all ofthe enforceable commitments, a RACM analysis, 1996 periodic emission inventory, 2002, 2005 and 2007 ozone projection year emission inventories, 2002, 2005 and 2007RFP Plans, and

ozone contingency measures.

New Jersey's one-hour ozone attainment demonstrations include 2005 and 2007 motor vehicle emissions budgets for the Trenton and Northern NewJersey NAAs, respectively. EPAis approving these attainment budgets until new budgets using MOBILE6 are submitted and found adequate. Similarly, ifnew mobile source

measures are submitted to fill the shortfall, the revised budgets will apply after they are submitted and found adequate. Also, EPAis approving the
motorvehicle emissions budgets for 2002 and 2005 contained in New Jersey's RFP plans for transportation conformity purposes.
V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is
not a "significant regulatory action" and therefore is not subject toreview bythe Office ofManagement and Budget. For 

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this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by
state law. Accordingly, the Administrator certifies thatthis rule will not have a significant economic impact on asubstantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.). Because this rule approves pre-existing requirements under state lawand does not impose
any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4).

This rule also does not have tribal implications because itwill not have a substantial direct effect on one or more Indian tribes, on therelationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes,

as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States,

onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely
approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution ofpower andresponsibilities established in the Clean Air Act. This rule also isnot subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPAhas no authority
to disapprove a SIP submission for failure touse VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) donot apply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, 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 ofthe Congress andto the Comptroller General ofthe United States. EPA will submit areport containing this rule and other required information tothe U.S. Senate, the U.S. House ofRepresentatives, andthe Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. A major rule
cannot take effect until 60 days after it is published in the Federal Register. This actionis not a "major rule" as defined by 5U.S.C. section 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by April 5, 2002. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: January 14, 2002.
Jane M. Kenny, RegionalAdministrator, Region 2.

Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

1.The authority citation for part 52 continues to read asfollows:

Authority: 42 U.S.C. 7401 et seq. Subpart FF-New Jersey

2. Section 52.1582 is amended by adding newparagraph (h)to read as follows:
§52.1582 Control strategy and regulations: Ozone (volatile organic substances) and carbon monoxide.

(h)(1) The statewide 1996 periodic emission inventory included in New Jersey's April 11, 2001 State Implementation Plan revision is approved.

(2)The 2002 and 2005 ozone projection year emission inventories for the NewJersey portion ofthe Philadelphia/Wilmington/Trenton nonattainment area and the 2002, 2005 and 2007 ozone projection year emission inventories for the New Jersey portion ofthe New York/Northern New Jersey/Long Island nonattainment area included in NewJersey's April 11, 2001 State Implementation Plan revision are approved.

(3)The 2002 and 2005 Reasonable Further Progress Plans for the New Jersey portion ofthe Philadelphia/ Wilmington/Trenton nonattainment

area and the 2002, 2005 and 2007 Reasonable Further Progress Plans for the NewJersey portion ofthe New York/ Northern New Jersey/Long Island nonattainment area included in New Jersey's April 11, 2001 State Implementation Plan revision are approved.

(4) The contingency measures for the NewJersey portions ofthe Philadelphia/ Wilmington/Trenton nonattainment

area and the New York/Northern New Jersey/Long Island nonattainment area included in NewJersey's April 11, 2001 State Implementation Plan revision are approved.

(5)The 2002 and 2005 conformity emission budgets forthe NewJersey portion ofthe Philadelphia/ Wilmington/Trenton nonattainment

area and the 2002, 2005 and 2007 conformity emission budgets forthe NewJersey portion ofthe New York/ Northern New Jersey/Long Island nonattainment area included in New Jersey's April 11, 2001 State Implementation Plan revision are approved. The 2005 and 2007 attainment year budgets are only approved until such time asNew Jersey submits revised budgets consistent with its commitments to revise the budgets with respect to MOBILE6 and additional

measures andEPA finds those revised budgets adequate. (6) The Reasonably Available Control Measure Analysis for the NewJersey portion ofthe Philadelphia/ 

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Wilmington/Trenton and New YorkNorthern New Jersey-Long Island nonattainment areas included in New Jersey's October 16, 2001 State Implementation Plan revision is approved.

(7)The revisions to the State Implementation Plan submitted byNew Jersey on August 31, 1998, October 16, 1998, and April 26, 2000 are approved. The revisions are for the purpose of satisfying the attainment demonstration requirements of section 182(c)(2)(A) of the Clean Air Act for the NewJersey portions ofthe Philadelphia/ Wilmington/Trenton and New YorkNorthern New Jersey-Long Island severe

ozone nonattainment areas. The revisions establish attainment dates of November 15, 2005 for the Philadelphia/Wilmington/Trenton nonattainment area and November 15, 2007 for the New York-Northern New Jersey-Long Island ozone nonattainment

area. The revisions include the enforceable commitments for future actions associated with attainment of the 1-hour ozone national ambient air quality:

(i) To adopt additional control

measures by October 31, 2001 to meet the level ofreductions identified by EPA for attainment ofthe 1-hour ozone standard;

(ii)To submitrevised State Implementation Plan and motor vehicle emissions budgets by October 31, 2001 ifadditional adopted measures affect the motor vehicle emissions inventory; (iii)To revise State Implementation Plan and attainment year motor vehicle emissions budgets within one year after the MOBILE6 mobile emissions model is released; (iv)To perform a mid-course review and submitthe results to EPAby December 31, 2003. [FRDoc. 02-1753 Filed 2-1-02; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [Region 2 Docket No. NY55-237, FRL-7132- 5]
Approval and Promulgation of Implementation Plans; New York's Reasonable Further Progress Plans, Transportation Conformity Budgets, Reasonably Available Control Measure Analysis and 1-hour Ozone Attainment Demonstration State Implementation Plan
AGENCY: Environmental Protection Agency (EPAor Agency). ACTION: Finalrule.

SUMMARY: EPA is approving New York State Implementation Plan revisions involving the 1-hour Ozone Plan which
is intended to meet several Clean Air Act requirements for the New York portion ofthe New York-Northern New Jersey-Long Island nonattainment area. These requirements include the Reasonable Further Progress Plans, projection year inventories and transportation conformity budgets for milestone years 2002, 2005 and 2007,

ozone contingency measures, Reasonably Available Control Measure Analysis, 1-hour Ozone Attainment Demonstration and enforceable commitments. The intended effect of this action is to approve programs required bythe Clean Air Act which will result in emission reductions that will help achieve attainment ofthe 1- hour national ambient air quality standard for ozone in the New YorkNorthern New Jersey-Long Island nonattainment area. EFFECTIVE DATE: This rule willbe effective March 6, 2002. ADDRESSES: Copies of the State's submittals are available atthe following addresses for inspection during normal business hours: Environmental Protection Agency,

Region 2Office, Air Programs Branch, 290 Broadway, 25th Floor, New York,
NY 10007-1866 New York State Department of

Environmental Conservation, Division ofAir Resources, 625 Broadway, 2nd Floor, Albany, New York 12233 Environmental Protection Agency, Air andRadiation Docket and Information Center, AirDocket (6102), 401 M Street, S.W., Washington, D.C. 20460
FOR FURTHER INFORMATION CONTACT: Kirk J.Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3381. SUPPLEMENTARY INFORMATION:

Table ofContents I.What actions isEPAtaking today? II.What are the details ofEPA's specific actions? A. 2002, 2005 and 2007Projection Year

Emission Inventories B. 2002, 2005 and 2007Reasonable Further

Progress Plans C. Ozone Contingency Measures D. Conformity Budgets E. New York's Reasonably Available

Control Measure (RACM) Analysis F. 1-hour Ozone Attainment Demonstration

State Implementation Plan (SIP) including enforceable commitments 1.NOx SIP Call submittal 2. Clean Air Act measures and control

measures relied on in the modeled 1- hour Ozone Attainment Demonstration SIP 3. Enforceable commitments III. What comments werereceived in response to EPA's proposals and how has EPA responded to those comments? A. Attainment Demonstration 1.General Comments 2. Weight ofEvidence B. Reliance on the NOx SIP Call and the

Tier 2/Sulfur Rule C. Comments on RACM 1.General RACM Comments 2. RACM Requirements (Comments on

EPA's October 16, 2000 Notice of Availability) 3. Point Source NOx Controls 4.Mobile Source Control Measures D. Approval ofAttainment Demonstrations

That Rely on State Commitments or State Rules For Emission Limitations to Lower Emissions in the Future not yet Adopted by a State and/or Approved byEPA E. Adequacy ofMotor Vehicle Emissions

Budgets F. Attainment Demonstration and Rate of

Progress Motor Vehicle Emissions Inventories G. VOC Emission Reductions H. Credit for Measures not Fully

Implemented I.Enforcement ofControl Programs J. MOBILE6 and Motor Vehicle Emissions

Budgets K. MOBILE6 Grace Period L. Two-Year Option to Revise theMotor

VehicleEmissions Budgets M. Measures for the 1-hournational

ambient air quality standards (NAAQS) and forProgress Toward 8-hour NAAQS N. Attainment and Post 1999 Reasonable

Further Progress Demonstrations IV.What are EPA's conclusions? V. Administrative Requirements

I. What Action Is EPA Taking Today?

EPA is approving several State Implementation Plan (SIP)revisions submitted by New York to address Clean Air Act (CAA) requirements related to attainment ofthe 1-hour national ambient air quality standard (NAAQS) for ozone. These SIP submittals address the requirements for the New York-Northern New JerseyLong Island ozone nonattainment area, which is classified as severe nonattainment. The New York portion ofthe New York-Northern New JerseyLong Island Area is composed ofNew York City and the counties ofNassau, Suffolk, Westchester and Rockland and the towns ofBlooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick and Woodbury in Orange County (40 CFR 81.333). This nonattainment area willbe referred to as the New York Metro Area.

Specifically, EPA is approving New York's:
-Emission inventories for 2002, 2005

and 2007 (referredto as projection
year inventories); 

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