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Federal Register/Vol. 67, No. 23 / 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, EPA is

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,

and reasonably available control

measure analysis for the New YorkNorthern New Jersey-Long Island

nonattainment area (NAA) and the

Philadelphia, Wilmington, Trenton

NAA. The intended effect of this action

is to approve programs required by the

Clean Air Act which will result in

emission reductions that will achieve

attainment of the 1-hour national

ambient air quality standard for ozone

in the New York-Northern New JerseyLong Island NAA and the Philadelphia,

Wilmington, Trenton NAA.

EFFECTIVE DATE: This rule will be

effective March 6, 2002.

ADDRESSES: Copies of the 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

New Jersey Department of

Environmental Protection, Office of

Air Quality Management, Bureau of

Air Pollution Control, 401 East State

Street, CN027, Trenton, New Jersey

08625

Environmental Protection Agency, Air

and Radiation Docket and Information

Center, Air Docket (6102), 401 M

Street, SW, Washington, DC 20460

FOR FURTHER INFORMATION CONTACT: Paul

Truchan, Air Programs Branch,

Environmental Protection Agency, 290

Broadway, 25th Floor, New York, New

York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?

II. What are the details of EPA'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 of Evidence

B. Reliance on the Nitrogen Oxide SIP Call

and the Tier2/Sulfur Rule

C. Comments on RACM

D. Approval of Attainment 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 of Motor 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 of Control Programs

J. MOBILE6 and Motor Vehicle Emissions

Budgets (MVEBs)

K. MOBILE6 Grace Period

L. Two-Year Option to Revise the MVEBs

M. Measures for the 1-Hour NAAQS and

for Progress Toward 8-Hour NAAQS

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 of the national

ambient air quality standard for ozone.

These submittals apply to the New

Jersey portions of two severe ozone

nonattainment areas-the New York,

Northern New Jersey, Long Island Area,

and the Philadelphia, Wilmington,

Trenton Area. For purposes of this

action these areas will be referred to as,

respectively, the Northern New Jersey

ozone 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

for both 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 2007 Reasonable

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 and Trenton NAAs with

enforceable commitments.

Table 1 identifies the SIP revisions

that have 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 1 year 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. Emission Inventories

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. RFP Plans for 2002, 2005 and 2007

On April 11, 2001, New Jersey

submitted a SIP revision which

contained the 2002 and 2005 RFP Plans

for the Northern New Jersey NAA and

Trenton NAA and a 2007 RFP Plan for

the Northern New Jersey NAA. New

Jersey has identified the control

measures necessary to achieve the

required emission reductions and all the

measures have been 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 as part of New

Jersey's SIP.

C. Ozone Contingency Measures

On April 11, 2001, New Jersey

submitted a SIP revision which

identified the ozone contingency

measures for the Trenton NAA and

Northern New Jersey NAA necessary to

fulfill the RFP and attainment

requirements of section 172(c)(9) of the

CAA. Contingency measures are control

measures that must be implemented

should an ozone nonattainment area fail

to achieve RFP or to attain the NAAQS

within the time-frames specified under

the CAA. Consistent with EPA

guidance, New Jersey used a

combination of excess 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. 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 the

contingency measures portion of the SIP

revision. Therefore, EPA is approving it

as part of New Jersey's SIP.

D. Conformity Budgets

On April 11, 2001, New Jersey

submitted a SIP revision which

contained the transportation conformity

budgets for the Northern New Jersey

NAA and Trenton NAA (see Table 2)

and the general conformity emission

budgets for McGuire Air Force Base (see

Table 3). It should be noted that for the

Northern New Jersey NAA the 2002 and

2005 conformity budgets are based on

the RFP Plan and the 2007 budgets are

based on the 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 comm

RCE BASE regarding adequacy of budgets. EPA

EMISSION proposed approval of all of these

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. EPA is approving the

budgets as part of New Jersey's SIP.

'7), EPA These budgets (see Table 2 and 3) are

rmity consistent with the measures in New

formity Jersey's RFP plans and attainment

)1. At that demonstrations that are also being

ents approved today. It is important to note

that New Jersey has committed to revise

the 2005 and 2007 attainment year

transportation conformity emissions

budgets within one year of the official

release of the MOBILE6 motor vehicles

emissions model for regulatory

purposes. New Jersey has committed to

submit new budgets if any 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 EPA finds those budgets adequate.

Accordingly, once the revised budgets

are submitted by the State and found

adequate by EPA, those budgets will

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replace the 2005 and 2007 attainment

year emissions budgets being approved

today for conformity purposes. EPA is

approving New Jersey's commitment to

revise the attainment year motor vehicle

emissions budgets using the MOBILE6

model within one year after the release

of the MOBILE6 model, and the

commitment to revise the budgets if any

additional measures affect the budgets.

E. Reasonably Available Control

Measure Analysis

On June 18, 2001, New Jersey

submitted a proposed 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

earlier year for the Northern New Jersey

NAA. On September 24, 2001 (66 FR

48847), EPA proposed approval of New

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

New Jersey'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 and would

advance the attainment dates of 2005 or

2007 for the Trenton NAA or Northern

New Jersey 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

New Jersey and other states in the

Ozone Transport Region revisit these

control strategies when they begin

developing the 8-hour ozone standard

SIP.

F. 1-hour Ozone Attainment

Demonstration SIP Including

Enforceable Commitments

On December 16, 1999 (64 FR 70380),

EPA proposed approval of New Jersey's

1-hour Ozone Attainment

Demonstration SIP. However, this

approval was contingent upon New

Jersey submitting the following:

(1) The adopted NOx 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 submit sufficient

measures to address the additional

emission reductions identified by EPA

as necessary for attainment;

b. Submit revised transportation

conformity budgets to include the Tier

2/Sulfur program benefits, if these

benefits have not already been

incorporated;

c. Revise the Attainment

Demonstration SIP, including

recalculation of the transportation

conformity budgets (if any of the

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 of MOBILE6.

The specifics of how New Jersey

fulfilled all these requirements are

discussed below.

(1) NOx SIP Call Submittal

On December 10, 1999 and July 31,

2000, New Jersey submitted adopted SIP

revisions which fulfilled the NOx SIP

Call requirements. Specifically, New

Jersey adopted Subchapter 31 "NOx

Budget Program," of Title 7, Chapter 27

of the New Jersey 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 1 through

September 30, beginning in 2003. On

May 22, 2001 (66 FR 28063), EPA

approved New Jersey's SIP revisions as

meeting the NOx SIP Call. It is

important to note that New Jersey is

implementing its NOx SIP Call rules

requiring source compliance by 2003,

even though an order from the D.C.

Circuit Court allowed that full

implementation could be rolled back to

2004.

(2) CAA Measures and Control Measures

Relied on in the 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 for the Northern New Jersey

and Trenton NAAs. Table 4 presents a

summary of the control measures that

are relied on in the 1-hour Ozone

Attainment Demonstration SIP,

including the Rate of Progress (ROP)

and RFP plans. The reader is referred to

EPA's March 1, 1999 (64 FR 9952)

proposed approval of New Jersey's 15

and 9 Percent ROP Plans and September

12, 2001 (66 FR 47419) proposed

approvals of New Jersey's RFP Plans for

a more detailed discussion of the

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 Em ission Vehicle 1 (NLEV) .....................................................................................

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

Reform ulated Gasoline (Phase 1 & 2) .........................................................................................

Heavy Duty Diesel Engines (O n-road) .........................................................................................

Non-Road Sources:

Federal Spark Ignition Sm all Engine standards ...........................................................................

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

Federal Nonroad Com pression Ignition engines ..........................................................................

Locom otive & Locom otive Engines ..............................................................................................

Com m ercial M arine Diesel Engines .............................................................................................

Stationary Sources:

VO C CTG Source Categories ......................................................................................................

VO C Non-CTG Source Categories- RACT .................................................................................

N O R A C T ...................................................................................................................................

M arine Vessel Ballasting & Loading O perations ..........................................................................

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

O TC NOx M O U Controls .............................................................................................................

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

A uto b o d y R e fin is h in g .................................................................................................................... F e d e ra l

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 that had 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. On June 12, 2001 (66 FR

31544), EPA made a determination that

New Jersey has implemented the

enhanced I/M program and reinstated

the interim approval granted under

Section 348 of the National Highway

Systems Designation Act. On September

11, 2001 (66 FR 47130), EPA proposed

full approval of the enhanced I/M

program and on January 22, 2002, EPA

took final action giving full approval.

Therefore, New Jersey has satisfied both

of these requirements.

(3) Enforceable Commitments

On April 26, 2000, New Jersey

submitted a revision to the 1-hour

Ozone Attainment Demonstration SIP

for the Northern New Jersey 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 of New Jersey's 1-

hour Ozone Attainment Demonstrations.

In addition, as a backstop, New Jersey

committed to adopt intrastate measures

by October 31, 2001 if the regional

measures do not provide sufficient

emission reductions to achieve the

additional reductions identified by EPA.

New Jersey also committed to work

through the OTC process to develop a

regional strategy regarding the measures

necessary to meet the additional

reductions identified by EPA. In fact,

New Jersey has taken a active role in the

OTC process of identifying 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 and the role

these measures play in the attainment

demonstrations. The following are the

measures recommended by the OTC and

which New Jersey 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 (NOx reductions from

sources that are not included in the

1994 OTC NOx Memorandum of

Understanding for regional NOx

reductions or covered by EPA's NOx SIP

Call). New Jersey has begun its

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 the rulemaking 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, if these

benefits have not already been

incorporated.

New Jersey submitted revised

transportation conformity budgets

which include the Tier 2/Sulfur

program and therefore, this commitment

has been satisfied.

c. Revise the Attainment

Demonstration SIP, including

recalculation of the transportation

conformity budgets (if any of the

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, if necessary, based

on those measures.

d. Revise the Attainment

Demonstration, including transportation

conformity budgets, within one year of

the release of MOBILE6.

All states whose attainment

demonstration includes the effects of

the Tier 2/sulfur program have

committed to revise and re-submit their

motor vehicle emissions budgets after

EPA releases MOBILE6. On April 26,

2000, New Jersey submitted an

enforceable commitment to revise its

attainment year transportation

conformity budgets within one year of

release of MOBILE6.

As we proposed in the July 28, 2000

supplemental notice of proposed

rulemaking (65 FR 46383), the final

approval action we are taking today will

be effective for conformity purposes

only until revised motor vehicle

emissions budgets are submitted and we

have found them adequate. We are

limiting the duration of our approval in

this manner because 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

than the budgets we are approving

today.

e. Perform and submit a mid course

review.

Also in the April 26, 2000 SIP

revision, New Jersey revised its prior

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

the Proposed Approvals and How Has

EPA Responded to Them?

EPA received comments from the

public on the Notice of Proposed

Rulemaking (NPR) published on

December 16, 1999 (64 FR 47419) for

New Jersey's ozone attainment

demonstration. In addition, EPA

received comments from the public on

the supplemental notice of proposed

rulemaking published on July 28, 2000

(65 FR 46383) on the attainment

demonstrations, in which EPA clarified

and expanded on two issues relating to

the motor vehicle emissions budgets in

the attainment demonstration SIPs. EPA

also received comments on the

September 12, 2001 (66 FR 47419)

proposed approval of New Jersey's RFP

Plans and transportation conformity

budgets for 2002, 2005 and 2007 and the

September 24, 2001 (66 FR 48847)

proposed approval of New Jersey's

RACM analysis.

A. Attainment Demonstrations

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 of all 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 in NRDC v. Browner, Civ. No.

99-2976, EPA must commence

promulgation of a Federal

Implementation Plan (FIP). One

commenter supported the proposed

approval.

Response: In the following responses,

we address the specific concerns raised

by the commenters in more detail. We

believe the plans provided by the State

of New Jersey are fully approvable

under the CAA and will provide for

attainment as expeditiously as

practicable which is by November 15,

2005 for the Trenton NAA and

November 15, 2007 for the Northern

New Jersey NAA and the plans includes

all reasonably 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) of the

CAA, it is unnecessary to commence

development of a FIP.

Comment: New Jersey has not

provided modeling that shows

attainment in 2007. A commenter also

states that there is no demonstration of

maintenance of the 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 of part D

of the CAA, the area needs to

demonstrate that in the attainment year,

the area will have air quality such that

the area could be eligible for the two

one-year extensions provided under

section 181(a)(5) of the CAA. Under

section 181(a)(5), an area that does not

have three-years of data demonstrating

attainment of the ozone NAAQS, but

has complied with all of the statutory

requirements and that has no more than

one exceedance of the NAAQS in the

attainment year, may receive a one-year

extension of its attainment date.

Assuming those conditions are met the

following year, the area may receive an

additional one-year extension. If the

area has no more than one exceedance

in this final extension year, then it will

have three-years of data indicating that

it has attained the ozone NAAQS.

This position is consistent both with

EPA's modeling guidance and with the

structure of subpart 2 of the CAA. Under

EPA's modeling guidance, states model

air quality for the attainment year-they

do not model air quality for the threeyear period preceding the attainment

year. As a function of how the model

operates, the data produced only

predicts the air quality for one year.

EPA's modeling guidance has existed

for many years and has been relied on

by numerous nonattainment areas for

demonstrating attainment of the ozone

standard. Moreover, EPA believes this

approach is consistent with the

statutory structure of subpart 2. Under

subpart 2, many of the 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 of three years following enactment

of the 1990 CAA amendments were

required to adopt and implement 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 for moderate and above

areas, including the 15-percent plan for

reductions by November 1996, applies

through the attainment year. Thus, EPA

believes that Congress did not intend

that these additional mandatory

reductions be in excess of what is

needed to achieve three-years of "clean

data." For these reasons, EPA does not

agree with the commenter that the

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 it is prudent for states to implement

controls as expeditiously as practicable.

EPA also believes that for the Trenton

and Northern New Jersey NAAs, all

measures are being implemented as

expeditiously as practicable and that the

areas have demonstrated attainment

consistent with EPA's modeling

guidance.

A plan for maintenance of the

standard is not necessary for the

attainment demonstration to be

approved. A state is not required by the

CAA to provide a maintenance plan

until the state petitions for an area to be

redesignated to attainment which will

not occur until the Trenton and

Northern New Jersey NAAs have three

years of data showing compliance with

the 1-hour ozone standard. While it is

not necessary for the state to provide for

maintenance of the standard at this

time, we do believe emissions in the

Trenton and Northern New Jersey NAAs

will continue to decrease after 2005 and

2007, respectively, due to on- and offroad vehicle emission control programs

that will continue to provide 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 of Evidence

Comment: The weight of evidence

approach does not demonstrate

attainment or meet CAA requirements

for a modeled attainment

demonstration. Commenters added

several criticisms of various technical

aspects of the weight of evidence

approach, including certain specific

applications of the approach to

particular attainment demonstrations.

These comments are discussed in the

following response.

Response: Under section 182(c)(2) and

(d) of the CAA, serious and severe ozone

nonattainment areas were required to

submit by November 15, 1994,

demonstrations of how 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

on photochemical grid modeling,"

because the modeling results constitute

the principal component of EPA's

analysis, with supplemental information

designed to account for uncertainties in

the model. This interpretation and

application of the photochemical

modeling requirement of section

182(c)(2)(A) finds further justification in

the broad deference Congress granted

EPA to develop appropriate methods for

determining attainment, as indicated in

the last phrase of section 182(c)(2)(A).

The flexibility granted to EPA under

section 182(c)(2)(A) is reflected in the

regulations EPA promulgated for

modeled attainment demonstrations.

These regulations provide, "The

adequacy of a control strategy shall be

demonstrated by means of applicable air

quality models, data bases, and other

requirements specified in [40 CFR part

51 Appendix W] (Guideline on Air

Quality Models)."' 1 40 CFR 51.112(a)(1).

However, the regulations further

provide, "Where an air quality model

specified in appendix W * * * is

inappropriate, the model may be

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 of model

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 led us to use both

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 not take 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 of the National Ambient Air

Quality Standard (NAAQS). The results

may be interpreted through either of two

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 on the severity of

the episode modeled). 2

In 1996, EPA issued guidance 3 to

update the 1991 guidance referenced in

40 CFR part 51, Appendix W, to make

the modeled attainment test more

closely reflect the form of the NAAQS

(i.e., the statistical test described above),

to consider the area's ozone design

value and the meteorological conditions

accompanying observed exceedances,

and to allow consideration of other

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 to help

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 of the model means that it

may be inappropriate to view the

specific numerical result of the model as

the only determinant of whether the SIP

controls are likely to lead to attainment.

The EPA's guidance recognizes these

limitations, and provides a means for

considering other evidence to help

assess whether attainment of the

NAAQS is likely to be achieved. The

process by which this is done is called

a weight of evidence (WOE)

determination. Under a WOE

determination, a state can rely on, and

EPA will consider in addition to the

results of the modeled attainment test,

2 Guidance on the Use Of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA-454/B-95-007, June 1996.

3 Ibid.

other factors such as other modeled

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 of monitored air

quality data); estimated emissions

trends; and the responsiveness of the

model predictions to further controls.

In 1999, EPA issued additional

guidance 4 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an 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 if each monitoring site has

air quality observed ozone design values

(4th highest daily maximum ozone

using the three most recent consecutive

years of data) at or below the level of the

standard. Therefore, it is 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 below the level

of the standard. Since the form of the 1-

hour NAAQS allows exceedances, it did

not seem appropriate for EPA to require

the test for attainment to be "no

exceedances" in the 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 of three

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

(highest across 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 of the peak model predicted

ozone concentrations in the attainment

year (i.e., average of daily maximum

concentrations from all days modeled)

4 "Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled." U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. November 1999.

Web site: http://www.epa.govlttnlscram.

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to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily 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 to reduce areas of peak ozone

concentrations generally result in

similar ozone reductions in all core

areas of the modeling domain, thereby

providing some assurance of attainment

at all monitors.

In the event that the attainment year

design value 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 design value at the level

of the 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 that it

allows the averaging of the 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 of allowing lower air quality

concentrations to be 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 of observed data. The

guidance does recommend

determination of the highest site in the

region for each of the three-year periods,

determined by the base year modeled.

For example, if the base year is 1990, it

is the amount of emissions 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 of the guidance

document, EPA determined the design

value for each of those three-year

periods, and then averaged those three

design values, to determine the base

design value. This approach is

appropriate because, as just 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 of the

three design values. Averaging the three

years is beneficial for another reason: It

allows consideration of a broader range

of meteorological 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, EPA relied on threeyear averaging only for purposes of

determining one component, i.e.-the

small amount of additional emission

reductions not modeled-of the WOE

determination. The WOE determination,

in turn, is intended to be part of a

qualitative assessment of whether

additional factors (including the

additional emissions reductions not

modeled), taken as a whole, indicate

that the area is more likely than not to

reach attainment.

A commenter criticized the

component of this WOE factor that

estimates ambient improvement because

it does not incorporate complete

modeling of the 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 of this

technique-the estimation of future

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. EPA provided a

full 60-day period for comment on all

aspects of the proposed rule. EPA has

received several comments on the

technical aspects of the approach and

the results of its application, as

discussed above and in the responses to

the individual SIPs.

A commenter states that application

of the method of attainment analysis

used for the December 16, 1999 NPRs

will yield a lower control estimate than

if we 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 of the standard allows up to

three exceedances in three years in

every grid cell. If the model over

predicts observed concentrations,

predicted controls may be further

overestimated. EPA has considered

other evidence, as described above

through the weight of evidence

determination.

When reviewing a SIP, the EPA must

make a determination that the control

measures adopted are reasonably likely

to lead to attainment. Reliance on the

WOE factors allows EPA to make this

determination based on a greater body

of information presented by the states

and available to EPA. This information

includes model results for the majority

of the 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 of a few additional measures,

not modeled. EPA's decision was

further strengthened by each state's

commitment to check progress towards

attainment in a mid course review and

to adopt additional measures, if the

anticipated progress is not being made.

A commenter further criticized EPA's

technique for estimating the ambient

impact of additional 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

that 40 CFR part 51, Appendix W,

section 6.2.1.e. provides "Proportional

(rollback/forward) modeling is not an

acceptable procedure for evaluating

ozone control strategies." Section 14.0

of Appendix W defines "rollback" as "a

simple model that assumes that if

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,

it is assumed a 20 percent reduction in

VOC would be required. There was no

approach for identifying NOx

reductions.

The "proportional rollback" approach

is based on a purely empirically/

mathematically derived relationship.

EPA did not rely on this approach in its

evaluation of the attainment

demonstrations. The prohibition in

Appendix W applies to the use of a

rollback method which is empirically/

mathematically derived and

independent of model estimates or

observed air quality and emissions

changes as the sole method for

evaluating control strategies. For the

demonstrations under proposal, EPA

used a locally derived (as determined by

the model and/or observed changes in

air quality) ratio of change 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, if monitoring or

modeling results indicate that ozone

was reduced by 25 parts per billion

during a particular period, and that VOC

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and NOx emissions fell by 20 tons per

day and 10 tons per day respectively

during that period, EPA developed a

ratio of ozone improvement related to

reductions in VOC and NOx. This

formula assumes a linear relationship

between the precursors and ozone for a

small amount of ozone improvement,

but it is not 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

and thereby 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 of proportional

rollback to determine the ambient

impact of the entire set of emissions

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) it is

more consistent with recommendations

referenced by Appendix W because 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, the requirement

that areas perform a mid course review

(a check of progress 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" to UAM, it did not trigger an

obligation to modify Appendix W.

Furthermore, EPA did propose the use

of the 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 that guidance

elsewhere in this document.

A commenter also expressed concern

that EPA applied unacceptably broad

discretion in fashioning and applying

the WOE determinations. For all of the

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 and Chicago-the

UAM results passed the statistical test;

in the rest of the 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 a result of these

limitations, for all areas, even

Milwaukee and Chicago, EPA examined

additional analyses to indicate whether

additional SIP controls would yield

meaningful reductions in ozone values.

These analyses did not point to the need

for additional emission reductions for

Springfield, Greater Connecticut,

Metropolitan Washington DC, Chicago

and Milwaukee, but did point to the

need for additional reductions, in

varying amounts, in the other areas. As

a result, the other areas submitted

control requirements to provide the

indicated level of emissions reductions.

EPA applied the same methodology in

these areas, but because of differences in

the application of the model to the

circumstances of each 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 EPA regional modeling for

NOx controls as well as the Tier2/Low

Sulfur program were considered. Also,

for all of the 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

could be related to observed changes in

air quality, while for other areas there

appeared to be little change in either air

quality or emissions. For areas in which

air quality trends, associated with

changes in emissions levels, could be

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 only when those results indicate

nonattainment, and not when they

indicate attainment. First, we disagree

with the premise of this 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 in December 1999.

Although for most of them, the air

quality modeling results by themselves

indicated nonattainment, for two

metropolitan areas-Chicago and

Milwaukee, including parts of the States

of Illinois, Indiana, and Wisconsin, the

air quality modeling did indicate

attainment on the basis of the statistical

test.

The commenter further criticized

EPA's application of the WOE

determination on grounds that EPA

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

predicted by the UAM. EPA has

reviewed the evidence provided by the

commenter and has determined that the

1999 monitor values do not constitute

substantial evidence indicating that the

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

predicted by the UAM. Since areas did

not model 1999 ozone levels using 1999

meteorology and 1999 emissions which

reflect reductions anticipated by control

measures, that are or will 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 a wider margin

than the UAM predictions for 1999. In

summary, there is little evidence to

support the conclusion that high

exceedances in 1999 will continue to

occur after adopted control measures are

implemented.

In addition, the commenter argued

that in applying the WOE

determinations, EPA ignored 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 is presently

evaluating mobile source emissions data

as part of an effort to update the

computer model for estimating mobile

source emissions. EPA is considering

various changes to the model, and is not

prepared to conclude at this time that

the net effect of all these various

changes would be to increase or

decrease emissions estimates. For

attainment demonstration SIPs that rely

on the 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 motor vehicle

emissions budgets after the MOBILE6

model is released. EPA will work with

states on a case-by-case basis if the new

emission estimates raise issues about

the sufficiency of the attainment

demonstration. If analysis 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 of safety for ozone.

Unlike the 8-hour standard, the 1-hour

standard contains no "rounding

convention." No provision of the rule

provides authority for EPA to approve

SIPs that will only achieve 124 ppb

(242.6 g/m3). Thus even if EPA has

authority to adopt WOE criteria as a

substitute for modeled demonstrations

of attainment, which we dispute, then

the New Jersey SIP submissions do not

demonstrate attainment of the 1-hour

NAAQS because it only proposes to

reduce ambient ozone to 124 ppb.

Response: Although the 1-hour

NAAQS itself includes no discussion of

specific data handling conventions

similar to that of the 8-hour NAAQS,

EPA's publicly articulated position and

the approach long since universally

adopted by the air quality management

community is that the interpretation of

the 1-hour ozone standard requires

rounding ambient air quality data

consistent with the stated level of the

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 of EPA

guidance.

As early as 1977, two years before

EPA promulgated the 1-hour ozone

NAAQS, EPA provided in guidance that

the level of the standard dictates the

number of significant figures to be used

in determining whether the standard

was exceeded (Guidelines for the

Interpretation of Air 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 by EPA 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 of the standard is taken as defining

the number of significant 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 of the level of the standard."

(Guideline for the Interpretation of

Ozone Air Quality Standards, EPA-450/

4-79-003, at p. 6.) EPA's guidance on

air quality modeling is consistent with

those Guidelines. See e.g., Guidance on

Use of Modeled Results to Demonstrate

Attainment of the Ozone NAAQS, July

1996.

The level of the 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

or issued by the Administrator under

this CAA, as in effect before the date of

the enactment of the 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. Reliance on the Nitrogen Oxide SIP

Call and the Tier 2/Sulfur Rule

Comment: Several commenters stated

that given the uncertainty surrounding

the NOx SIP Call at the time of EPA's

proposals on the attainment

demonstrations, there is no basis for the

conclusion reached by EPA that states

should assume implementation of the

NOx SIP Call, or rely on it 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 that these inaccuracies were carried

over to the modeling analyses, estimates

of air quality based on that modeling,

and estimates of EPA's Tier 2 tailpipe

emissions reduction program not

modeled in the demonstrations. Thus,

because of the inaccuracies in the

inventories used for the NOx SIP Call,

the attainment demonstration modeling

is also flawed. Finally, one commenter

suggests that modeling data

demonstrates that the 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, Michigan v. United States Env.

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 few issues were

vacated or remanded to EPA for further

consideration, these issues do not

concern the accuracy of the emission

inventories relied on for purposes of the

NOx SIP Call. Moreover, contrary to the

commenter's suggestion, the NOx SIP

Call modeling data bases were not used

to develop estimates of reductions from

the Tier 2/Sulfur program for the 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 of EPA and the states to achieve

the full level of the 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 of a cogenerator and the assumed emission

limit for internal combustion engines.

EPA has informed the states that until

EPA addresses the remanded issues,

EPA will accept SIPs that do not include

those small portions of the 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 time to benefit the severe

nonattainment areas. Also, although the

court in the Michigan case subsequently

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issued an order delaying the

implementation date to no later than

May 31, 2004, and the court in the

Appalachian Power case remanded an

issue concerning computation of the

electric generating unit growth factor, it

is EPA's view 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 that New Jersey 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 of ozone and its

precursors is impacting nonattainment

areas several states away. This analysis

was upheld by the court in Michigan.

C. Comments on RACM

Comment: Several commenters have

stated that there is no evidence that

New Jersey has adopted reasonably

available control measures (RACM) or

that the SIPs provide for attainment as

expeditiously as practicable.

Specifically, the lack of Transportation

Control Measures (TCMs) was cited in

several comments, but commenters also

raised concerns about potential

stationary source controls. One

commenter stated that mobile source

emission budgets in the plans are by

definition inadequate because the SIPs

do not demonstrate timely attainment or

contain the emissions reductions

required for all RACM. That commenter

claims that EPA may not find adequate

a motor vehicle emission budget

(MVEB) that is derived from a SIP that

is inadequate for the purpose for which

it is submitted. The commenter alleges

that none of the MVEBs submitted by

the states that EPA is considering for

adequacy is consistent with the level of

emissions achieved by implementation

of all RACM, nor are they derived from

SIPs that provide for attainment. Some

commenters stated that for measures

that are not adopted into the SIP, the

state must provide a justification 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 of the

severe areas for which EPA proposed

approval in December 1999, EPA

consequently issued policy guidance

memorandum to have these states

address the RACM requirement through

an additional SIP submittal.

(Memorandum of December 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 of RACM (request

to parallel process submitted on June

18, 2001 and adopted revision

submitted on October 8, 2001). EPA

proposed to approve this supplement to

the SIP as meeting the RACM

requirements on September 24, 2001 (66

FR 48847). Based on this supplement,

EPA concluded that the SIP for the

Northern New Jersey and Trenton NAA

meets the requirement for adopting

RACM.

Section 172(c)(1) of the CAA requires

SIPs to contain RACM and provides for

areas to reach attainment as

expeditiously as practicable. EPA has

previously provided guidance

interpreting the requirements of

172(c)(1). See 57 FR 13498, 13560. In

that guidance, EPA indicated its

interpretation that potentially 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 all potentially 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, and if measures are

reasonably available they must be

adopted as RACM.

Finally, EPA indicated that states

could reject measures as not being

RACM because they would not advance

the attainment date, would cause

substantial widespread and long-term

adverse impacts, would be economically

or technologically infeasible, or would

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 of Air Quality

Planning and Standards. November 30,

1999. Web site: http://www.epa.gov/ttnl

oarpg/tlpgm.html.

On June 18, 2001, New Jersey

submitted a proposed analysis of

Reasonably Available Control Measures

(RACM) for the Northern New Jersey

and Trenton NAA which was adopted

after public hearing on October 8, 2001

without substantive changes. The

RACM analysis included an evaluation

of potential transportation control

measures (TCMs) for onroad mobile

sources, potential control measures for

point, area and offroad sources, and

other non-TCM onroad control

measures. New Jersey ranked the source

categories by emission level to identify

source categories with the greatest

potential for additional control measure

benefits, above and beyond what the

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

could be implemented. Finally, the

sums of the estimated emissions

benefits from the 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 of the two severe

nonattainment areas, the Trenton NAA

and the Northern New Jersey NAA.

1. Consideration and Implementation of

Transportation Control Measures

(TCMs)

Fifteen prospective mobile source

measures were examined to determine if

any of these TCMs could be considered

reasonably available control measures.

The candidate measures were screened

to determine if they were available for

potential implementation, and then

each measure analyzed for its 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

Flow Improvements, 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

of the TCM's, singularly or in

combination, will yield emissions

benefits sufficient to advance the

attainment dates for the respective New

Jersey ozone nonattainment areas. The

range of combined emissions benefits

from VOC and NOx was 0.0 tons/day to

2.054 tons/day in the New Jersey

portion of the 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, nor may 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 to reduce 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 of open

space over a ten-year period, and New

Development and Redevelopment Plan

which is based on "smart growth"

principles.

The Open Space Preservation Program

can not be phased in any faster and,

therefore, can not advance the ozone

attainment dates in the New Jersey

NAAs. The State Development and

Redevelopment Plan is a voluntary plan

and has no force of law under municipal

home rule. This limits EPA's ability to

enforce such a program as part of a SIP.

It also requires long lead times before it

could be effective on a regional scale

and it is not anticipated to advance the

attainment dates in the New Jersey

nonattainment areas.

2. Consideration and Implementation of

Stationary Source, Area Source, and

other Non-TCM Measures

The projected attainment year VOC

and NOx emission inventories were

separately sorted by source category for

each nonattainment area. All source

categories with emissions of five tons

per day or greater were examined for

potential application of new 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 of the

potential emissions reduction benefit,

technical and economic feasibility, and

analysis of whether 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 of 2.2 tons per day of VOC and

0.4 tons per day of NOx in 2004 for the

Trenton NAA and 7.3 tons per day of

VOC and 3.3 tons per day of NOx in

2006 for the Northern New Jersey NAA.

Based on a comparison of the 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 other measure, either

singularly or combined, has been

identified which could advance the

attainment dates of either area and be

considered RACM.

New Jersey evaluated all source

categories that could contribute

meaningful emission reductions. An

extensive list of potential control

measures was identified and reviewed.

The State considered the time needed to

implement these measures as a further

screen of their reasonableness and

availability. However, EPA believes that

some of these control measures may

offer some benefits in the future for

purposes of an 8-hour ozone standard,

and recommends that New 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 not believe that

section 172(c)(1) requires

implementation of additional measures

for the New Jersey NAAs, this

conclusion is not necessarily valid for

other areas. Thus, a determination of

RACM is necessary on a case-by-case

basis and will depend on the

circumstances for the individual area. In

addition, if in the future EPA moves

forward to implement another ozone

standard, this RACM 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 of control

measures that the commenters have

suggested, and EPA has indeed

provided guidance on those 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 as practicable,

some areas may need to consider and

adopt a number of measures, including

the kind that New Jersey itself evaluated

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

such measures do not advance the

attainment date-since such measures

will likely improve air quality. Also,

over time, emission control measures

that may not be RACM now for an area

may ultimately become feasible for the

same area due to advances in control

technology or more cost-effective

implementation of all techniques. Thus,

areas should continue to assess the state

of control technology as they make

progress toward attainment and

consider new control technologies that

may in fact result in more expeditious

improvement in air quality.

Because EPA is finding that the SIP

meets the CAA's requirement for RACM

and that there are no additional

reasonably available control measures

that can advance the attainment date,

EPA concludes that the attainment dates

being approved are as expeditious as

practicable.

EPA previously responded to

comments concerning the adequacy of

MVEBs when EPA took final action

determining the budgets adequate and

does not address those issues again

here. The previous responses are found

at http://www.epa.gov/otag/transpl

conform/nJrspnd.pdf.

D. Approval of Attainment

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

Comment: Several commenters

disagreed with EPA's proposal to

approve states' attainment and rate of

progress demonstrations because not all

of the 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 of the SIP,

and (c) are credited legally as part of a

demonstration because they are not

approved by EPA as part of the SIP.

Also a commenter maintains that EPA

does not have authority to accept

enforceable state commitments to adopt

measures in the future in lieu of current

adopted measures to fill a near-term

shortfall of reductions.

New Jersey submitted an enforceable

commitment on April 26, 2000, to

participate in the OTC process and to

adopt measures by October 31, 2001.

New Jersey did participate in the OTC

process, however, the deadline for

choosing and adopting shortfall

measures has come and gone. So far,

New Jersey has not submitted anything

to EPA which states which control

measures New Jersey plans to use to

address the shortfall. Nor has New

Jersey adopted measures to address the

required emission shortfall reductions.

With respect to the commitments

from New Jersey, the commenters

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contend that the emissions gap must be

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 if part of the SIP is not adequate

to meet all tests for approval. Because

the submittal consists in part of

commitments, New Jersey has not

adopted rules implementing final

control strategies, and the plan includes

insufficient reduction strategies to meet

the emission reduction goals established

by New Jersey. Thus, New Jersey has

failed to adopt a SIP with sufficient

adopted and enforceable measures to

achieve attainment. For these reasons,

the submittal also does not meet the

definition of a "full attainment

demonstration SIP," in a consent decree

EPA entered into in NRDC v. Browner,

Civ. No. 99-2976 (D.CT. D.C.), which

obligates EPA to propose a federal

implementation plan by November 30,

2001 if EPA has not fully approved the

New Jersey 1-hour Ozone Attainment

Demonstration SIP by that date. 5 For

these reasons, EPA should reject the

New Jersey 1-hour Ozone Attainment

Demonstration SIP and impose

sanctions on the area and publish a

proposed FIP no later than October 15,

2001.

Response: EPA disagrees with the

comments, and believes, consistent with

past practice, that the CAA allows full

approval of enforceable commitments

that are limited in scope where

circumstances exist that warrant the use

of such commitments in place of

adopted measures. 6 Once EPA

determines that circumstances warrant

consideration of an enforceable

commitment, EPA believes that three

factors should be considered in

determining whether to approve the

enforceable commitment: (1) Whether

5 Since this comment was submitted, the court

granted an extension from November 30, 2001 to

January 15, 2002.

6 These commitments are enforceable by the EPA

and citizens under, respectively, sections 113 and

304 of the 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., American Lung

Ass'n of N.J v. Kean, 670 F. Supp.1285 (D.N.J.

1987), affd, 871 F.2d 319 (3rd Ch. 1989); ARDCv.

N.Y. State Dept. of Envs. Cons., 668 F. Supp. 848

(S.D.N.Y.1987); Citizens for a Better Env't v.

Deukmejian, 731 F. Supp. 1448, recon. granted in

part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition

for Clean Air v. South Coast Air Quality Mgt. Dist.,

No. CV 97-6916 HLH, (C.D. Cal. Aug. 27, 1999).

Further, if a state fails to meet its commitments,

EPA could make a finding of failure to implement

the SIP under section 179(a) of the CAA, which

starts an 18-month period for the State to begin

implementation before mandatory sanctions are

imposed.

the commitment addresses a limited

portion of the statutorily-required

program; (2) whether the state is capable

of fulfilling its commitment; and (3)

whether the commitment is for a

reasonable and appropriate period of

time.

It is also noted that while New Jersey

does rely on commitments to adopt

additional measures as requested 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 of fully promulgated

Federal and fully adopted SIP-approved

state measures.

As an initial matter, EPA believes that

present circumstances for the New York

City, Philadelphia, Baltimore and

Houston nonattainment areas warrant

the consideration of enforceable

commitments. The Northeast states that

make up the New York, Baltimore, and

Philadelphia nonattainment areas

submitted SIPs that they reasonably

believed demonstrated attainment with

fully adopted measures. After EPA's

initial review of the plans, EPA

recommended to these 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, EPA believed it was

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 New Jersey and

Trenton NAA, EPA has determined that

the submission of enforceable

commitments in place of adopted

control measures for these limited sets

of reductions will not interfere with

either area's ability to meet the

attainment obligation.

EPA's approach here of considering

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, of an

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

(federal implementation plan for PM-10

for Phoenix); 48 FR 51472 (state

implementation plan for New Jersey).

Nothing in the CAA speaks directly to

the approvability of enforceable

commitments. 7 However, EPA believes

that its interpretation is consistent with

provisions of the CAA. For example,

section 110(a)(2)(A) provides that each

SIP "shall include enforceable emission

limitations and other control measures,

means or techniques. . . as well as

schedules and timetables for

compliance, as may be necessary or

appropriate to met the applicable

requirement of the CAA." (emphasis

added). Section 172(c)(6) of the 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

may be necessary or appropriate to

provide for attainment. . . by the

applicable attainment date ... "

(emphasis added.) The emphasized

terms mean that enforceable emission

limitations and other control measures

do not necessarily need to generate

reductions in the full amount needed to

reach attainment. Rather, the emissions

limitations and other control measures

may be supplemented with other SIP

rules-for example, the enforceable

commitments EPA is approving todayas long as the entire package of

measures and rules provides for

attainment.

As provided, after concluding that the

circumstances warrant consideration of

an enforceable commitment-as they do

for the Northern New Jersey and

Trenton NAAs-EPA would consider

three factors in determining whether to

approve the submitted commitments.

First, EPA believes that the

commitments must be limited in scope.

In 1994, in considering EPA's authority

under section 110(k)(4) to conditionally

approve unenforceable commitments,

the Court of Appeals 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 Resources Defense Council v.

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

7 Section 110(k)(4) provides for "conditional

approval" of commitments that need not be

enforceable. Under that section, a state may commit

to "adopt specific enforceable measures" within

one-year of the conditional approval. Rather than

enforcing such commitments against the state, the

CAA provides that the conditional approval will

convert to a disapproval if "the state fails to comply

with such commitment."

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other provisions in the CAA

contemplate that a SIP submission will

consist of more than a mere

commitment. See NRDC, 22 F.3d at

1134.

In the present circumstances, the

commitments address only a small

portion of New Jersey's attainment

plans. For the Trenton NAA, the

commitment addresses only 10.6

percent and 0.7 percent of the total VOC

and NOx emissions reductions,

respectively, necessary to attain the

standard. For the Northern New Jersey

NAA, the commitment addresses only

9.1 percent of the VOC and 0.8 percent

of the NOx emissions reductions

necessary to attain the standard. A

summary of the adopted control

measures and other components

credited in New Jersey's attainment

demonstration submission are discussed

in Section II of this document. These

adopted and implemented control

measures are the majority of the total

emissions reductions needed to

demonstrate attainment.

As to the second factor, whether the

State is capable of fulfilling the

commitment, EPA considered the

current or potential availability of

measures capable of achieving the

additional level of reductions

represented by the commitment. For the

New York, Philadelphia and Baltimore

nonattainment areas, EPA believes that

there are sufficient untapped sources of

emission reductions that could achieve

the minimal levels of additional

reductions that the areas need. This is

supported by the recent

recommendation of the Ozone Transport

Commission (OTC) regarding specific

controls that could be adopted to

achieve the level of reductions needed

for each of these three nonattainment

areas. Thus, EPA believes that the 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 fill the shortfall. The OTC,

of which New Jersey 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 of control measures

and model rules. Currently, the states

are working through their adoption

processes with respect to those, and in

some cases other, control measures.

New Jersey was an active participant

in the OTC rule development effort and

concurred on the recommendation that

the Northeast States adopt these

measures. New Jersey's involvement

and support for these regional measures

is evidence of New Jersey's intent to

also adopt them statewide. This was

demonstrated when New Jersey took to

public hearing a SIP revision which

identified the specific control measures

they would be proceeding with

rulemaking on, along with a description

of the measures and projected emission

reductions. This was submitted as part

of the adopted October 8, 2001 SIP

revision. New Jersey is well underway

with the regulatory development

process for these measures. While New

Jersey has not made the submission on

the date to which it committed, EPA

believes that it is making sufficient

progress to support approval of the

attainment demonstration because,

within a short time period, New Jersey

will adopt and implement 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 for the New Jersey

attainment demonstrations is whether

the commitment is for a reasonable and

appropriate time period. EPA recognizes

that both the CAA and EPA have

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 other factors, such as the

need to consider innovative control

strategies or the need to work as part of

a multi-state effort, support the

consideration of an enforceable

commitment in place of adopted control

measures. The commitment should

provide for the adoption of the

necessary control measures on an

expeditious, yet practicable, schedule.

As provided above, for New York,

Baltimore and Philadelphia, EPA

proposed that these areas have time to

work within the framework of the OTC

to develop, if appropriate, a regional

control strategy to achieve the necessary

reductions and then to adopt the

controls on a state-by-state basis. In the

proposed approval of the attainment

demonstrations, EPA proposed that

these areas would have approximately

22 months (until October 31, 2001), to

complete the OTC and state-adoption

processes.

As a starting point in suggesting this

time frame for submission of the

adopted controls, EPA first considered

the CAA "SIP Call" provision of the

CAA-section 110(k)(5)-which

provides states with up to 18 months to

submit a SIP after EPA requests a SIP

revision. While EPA may have ended its

inquiry there, and provided for the

states to submit the measures within 18

months of it's proposed approval of the

attainment demonstrations, EPA further

considered that these areas are all

located within the Northeast Ozone

Transport Region (OTR) and determined

that it was appropriate to provide these

areas with additional time to work

through the OTR process to determine if

regional controls would be appropriate

for addressing the shortfall. See e.g., 64

FR 70428. EPA believed that allowing

these states until 2001 to adopt these

additional measures would not

undercut their attainment dates of

November 2005 or 2007.

EPA still believes, consistent with the

memoranda of understanding signed by

Robert C. Shinn, Commissioner, New

Jersey Department of Environmental

Protection, that it is New Jersey's stated

intention to propose, adopt and

implement the identified control

measures. The actual OTC model

regulation development process took

longer than EPA anticipated, 15 months

of the 22 months that EPA had thought

the complete effort should take. This

only left the states in the OTC seven

months to complete the individual state

regulatory adoption process. Although,

as described below, New Jersey did not

make its submission by that date, EPA

believes that the State is sufficiently on

track and that the SIP should not be

disapproved at this time. Moreover, if

EPA or citizens are concerned about the

delay in adoption of the measures, EPA

and citizens have the ability to take

action under CAA (e.g., sections 179(a)

and (b) and 304) to ensure New Jersey

completes the adoption process.

New Jersey is well underway with the

regulatory development process for all

six of the 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 as the

NOx model rule (NOx reductions from

sources that are not included in the

1994 OTC NOx Memorandum of

Understanding for regional NOx

reductions or covered by EPA's NOx SIP

Call). EPA believes that New Jersey is

making sufficient progress to support

approval of the commitment, because

New Jersey will adopt and implement

the additional measures well within a

time period fully consistent with New

Jersey attaining the standard by

November 15, 2005 for the Trenton

NAA and November 15, 2007 for the

Northern New Jersey NAA. In a letter

dated December 11, 2001, New Jersey

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

submitted by New Jersey for the

Northern New Jersey and Trenton

NAAs, in conjunction with the other SIP

measures and other sources of emissions

reductions, constitute the required

demonstration of attainment and the

commitments will not interfere with the

area's ability to make reasonable

progress under section 182(c)(2)(B) and

(d). EPA believes that the delay in

submittal of the final rules is

permissible under section 110(k)(3)

because New Jersey has obligated itself

to submit the rules by specified shortterm dates, because it is making

reasonable efforts to adopt and submit

them and because the State's

commitment is enforceable by EPA and

the public. Moreover, as discussed in

the December 16, 1999 proposal, its

Technical Support Document (TSD),

and Section II of this document, the SIP

submittal approved today contains

major substantive components

submitted as adopted regulations and

enforceable orders.

EPA believes that the New Jersey SIP

meets the NRDC Consent Decree

definition of a "full attainment

demonstration." The consent decree

defines a "full attainment

demonstration" as a demonstration

according to CAA section 182(c)(2). As

a whole, the attainment

demonstration-consisting of

photochemical grid modeling, adopted

control measures, an enforceable

commitment with respect to a limited

portion of the reductions necessary to

attain, and other analyses and

documentation-is approvable since it

"provides for attainment of the ozone

[NAAQS] by the applicable attainment

date." See section 182(c)(2)(A).

Comment: One commenter raises

concerns regarding the enforceability of

New Jersey's commitments to adopt and

submit the additional control measures

to achieve additional emission

reductions necessary for attainment.

Specifically, the commenter is

concerned that the lack of specific

identified measures and specific

identified emission reductions

associated with those measures

undercuts their enforceability. The

commenter suggests that the

commitments made by New York and

New Jersey are more "discretionary"

than the types of commitments that

courts have enforced in the past because

these state's commitments do not

identify specific measures.

Response: EPA believes that the CAA

provides for enforcement of the 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 that will achieve a specific level

of reductions by a specific date, the

court may 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

submit by a specific date measures to

achieve a certain level of emission

reductions, the court may order the state

to adopt measures to achieve that level

of reductions. Simply because the state

retains authority regarding the precise

mix of controls that it may adopt, does

not interfere with the 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 of reduction to which the State

has committed. This determination is

supported by the recommendation of

the OTC regarding specific controls.

Thus, EPA believes that the

commitment submitted by New Jersey is

enforceable by EPA and citizens and

that a court could order the State to

adopt control measures that will achieve

the level of reductions necessary for

attainment.

Comment: The mid course review

process outlined by New Jersey is not a

permissible substitute for a currently

complete attainment demonstration or

adopted enforceable control measures.

The mid course review will delay final

approval of the 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 a replacement for adopted control

measures. Rather, it is intended to

reflect the reality that the modeling

techniques and inputs are uncertain.

Thus, EPA provided in its modeling

guidance that the progress of

implementing the plan should be

evaluated so that adjustments can be

made to ensure the plan is successful.

EPA is fully approving the attainment

demonstration because based on the

information currently available, EPA

believes that it will 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 of New Jersey, the

State has extensive plans to fully

evaluate the inputs to the model and the

modeling itself using the most up to

date information possible. The State

will also be evaluating several new

control measures for inclusion in the

SIP. We are fully supportive of this

continued evaluation of the science

supporting the plan to reach attainment.

E. Adequacy of Motor Vehicle Emissions

Budgets

Comment: We received a number of

comments about the process and

substance of EPA's review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes.

Response: EPA's adequacy process for

these SIPs has been completed, and we

have found the motor vehicle emissions

budgets in all of these SIPs to be

adequate. We have 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 can be 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 New Jersey and Trenton

NAAs. See Table 2. We received no

specific comments on New Jersey's

budgets. In this final rule we are

approving these budgets.

F. Attainment Demonstration and Rate

of Progress Motor Vehicle Emissions

Inventories

Comment: Several commenters stated

that the motor vehicle emissions

inventory is not current, particularly

with respect to the fleet mix.

Commenters stated that the fleet mix

does not accurately reflect the growing

proportion of sport utility vehicles and

gasoline trucks, which pollute more

than conventional cars. Also, a

commenter stated that 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 of the SIPs on which

we are taking final action are based on

the most recent vehicle registration data

available at the time the SIP was

submitted. The SIPs use the same

vehicle fleet characteristics that were

used in the most recent periodic

inventory update. New Jersey used 1999

vehicle registration data, including

information on sports utility vehicles,

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for modeling and inventory purposes.

EPA requires the most recent available

data to 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 of data. Our

guidance does not suggest that SIPs

should be disapproved on this 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 it is updated

local data or the updated national

default data that will be part of

MOBILE6.

G. VOC Emission Reductions

Comment: For states that need

additional VOC reductions, one

commenter recommends a process to

achieve these VOC emission reductions,

which involves the use of HFC-152a

(1,1 difluoroethane) as the blowing

agent in manufacturing of polystyrene

foam products such as food trays and

egg cartons. The commenter states that

HFC-152a, a fluorine compound, could

be used instead of hydrocarbons, a

known pollutant, as a blowing agent.

Use of HFC-152a, which is classified as

VOC exempt, would eliminate

nationwide the entire 25,000 tons/year

of VOC emissions from this industry.

Response: EPA has met with the

commenter and has discussed the

technology described by the company to

reduce VOC emissions from polystyrene

foam blowing through the use of HFC152a (1,1 difluoroethane), which is a

VOC exempt compound, as a blowing

agent. Since the HFC-152a is VOC

exempt, its use could result in a VOC

reduction compared to the use of VOCs

such a pentane or butane as a blowing

agent. However, EPA has not studied

this technology exhaustively.

It is each state's prerogative to specify

which measures it will adopt in order to

achieve the additional VOC reductions

it needs. In evaluating the use of HFC152a, states may want to consider

claims that products made with this

blowing agent are comparable in quality

to products made with other blowing

agents. Also the question of the over-all

long term environmental effect of

encouraging emissions of fluorine

compounds would be relevant to

consider. Using HFC-152a as a blowing

agent is a technology which states may

want to consider, but ultimately, the

decision of whether to require this

particular technology to achieve the

necessary VOC emissions reductions

must be made by each affected state.

Finally, EPA notes that under 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 for Measures Not Fully

Implemented

Comment: States should not 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:

On March 22, 1995 EPA issued 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 on the anticipated promulgation

of a national AIM coatings rule. In

developing the attainment and ROP 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 at 40 CFR part

59, subpart D. In the preamble to EPA's

final AIM coatings regulation, EPA

estimated that the regulation will result

in 20 percent reduction of nationwide

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 EPA policy

memorandum. In accordance with

EPA's final regulation, states have

assumed a 20 percent reduction from

AIM coatings source categories in their

attainment and ROP 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, at the latest, by September

2000. Industry confirmed in comments

on the proposed AIM rule that 12

months between the issuance of the

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 the Architectural and

Industrial Maintenance (AIM) Coating Rules,"

March 22, 1995, from John S. Seitz, Director, Office

of Air Quality Planning and Standards to Air

Division Directors, Regions I-X.

determined that, after the compliance

date, the volume of nonconforming

products would be very low (less than

one percent) and would be withdrawn

from retail shelves anyway. Therefore,

EPA believes that compliant coatings

were in use by the Fall of 1999 with full

reductions to be achieved by September

2000 and that it was appropriate for the

states to take credit for a 20 percent

emission reduction in their SIPs.

Autobody Refinish Coatings Rule:

Consistent with a November 27, 1994

EPA policy, 9 many states claimed a 37

percent reduction from this source

category based on a proposed rule.

However, EPA's final rule, "National

Volatile Organic Compound Emission

Standards for Automobile Refinish

Coatings," published on September 11,

1998 (63 FR 48806), did not regulate

lacquer topcoats and will result in a

smaller emission reduction of around 33

percent overall nationwide.

The 37 percent emission reduction

from EPA's proposed rule was an

estimate of the 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

of control which already existed in 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 of reductions assumed by

states, following EPA guidance based on

the proposal, and the 36 percent

reduction actually achieved by the final

rule for previously unregulated areas.

EPA's best estimate of the reduction

potential of the final rule was spelled

out in 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

for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing 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 a June 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 and the consumer

products industry concurred, that a

significant proportion of subject

products have been reformulated in

response to state regulations and in

anticipation of the final rule (63 FR

48819). That is, industry reformulated

the products covered by the consumer

products rule in advance of the final

rule. Therefore, EPA believes that

complying products in accordance with

the rule were in use by 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 Enforcement of Control Programs

Comment: The attainment

demonstrations do not clearly set out

programs for enforcement of the 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) of the CAA. Once approved

by EPA, there is no need for states to readopt and resubmit these programs with

each and every SIP revision generally

required by other sections of the 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

of the affected sources. EPA's review of

these regulations includes review of the

enforceability of the 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 EPA in past approval actions.

10 "Regulatory Schedule for Consumer and

Commercial Products under section 183(e) of the

Clean Air Act," June 22, 1995, John S. Seitz,

Director OAQPS, to Air Division Directors, Regions

I-X.

J. MOBILE6 and Motor Vehicle

Emissions Budgets (MVEBS)

Comment: One commenter generally

supports a policy of requiring motor

vehicle emissions budgets to be

recalculated when revised MOBILE6

models are released.

Response: The attainment

demonstrations that rely 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 after the MOBILE5 budgets

have already been approved. EPA's

policy is that submitted SIPs may not

replace approved SIPs.

Response: This is the reason that EPA

proposed in the July 28, 2000, a

supplemental notice (65 FR 46383) that

the approval of the MOBILE5 budgets

for conformity purposes would last only

until MOBILE6 budgets had been

submitted and found adequate. In this

way, the MOBILE6 budgets can apply

for conformity purposes as soon as they

are found adequate.

Comment: If a state submits

additional control measures that affect

the motor vehicle emissions budget, but

does not submit a revised motor vehicle

emissions budget, EPA should not

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 to the

attainment SIP consistent with any new

measures submitted to fill any shortfall,

if the additional control measures affect

on-road motor vehicle emissions.

Comment: EPA should make it clear

that the motor vehicle emissions

budgets to be used for conformity

purposes will be determined from the

total motor vehicle emissions reductions

required in the SIP, even if the SIP does

not explicitly quantify a revised 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 and Trenton attainment

demonstrations contain explicitly

quantified motor vehicle emissions

budgets.

Comment: If a state fails to follow

through on its commitment to submit

the revised motor vehicle emissions

budgets using MOBILE6, EPA could

make a finding of failure to submit a

portion of a SIP, which would trigger a

sanctions clock under section 179.

Response: If a state fails to meet its

commitment, EPA could make a finding

of failure to implement the SIP, which

would start a sanctions clock under

section 179 of the CAA.

Comment: If the budgets recalculated

using MOBILE6 are larger than the

MOBILE5 budgets, then attainment

should be demonstrated again.

Response: As EPA proposed in its

December 16, 1999 notices, we will

work with states on a case-by-case basis

if the new emissions estimates raise

issues about the sufficiency of the

attainment demonstration.

Comment: If the MOBILE6 budgets are

smaller than the MOBILE5 budgets, the

difference between the budgets should

not be available for reallocation to other

sources unless air quality data show that

the area is attaining, and a revised

attainment demonstration is submitted

that demonstrates that the increased

emissions are consistent with

attainment and maintenance. Similarly,

the MOBILE5 budgets should not be

retained (while MOBILE6 is being used

for conformity demonstrations) unless

the above conditions are met.

Response: EPA agrees that if

recalculation using MOBILE6 shows

lower motor vehicle emissions than

MOBILE5, then these motor vehicle

emission reductions cannot be

reallocated to other sources or assigned

to the motor vehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment

demonstration and shows that it will

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 motor vehicle

emission reductions resulting from the

use of MOBILE6. In addition, New

Jersey will be submitting new budgets

based on MOBILE6, so the MOBILE5

budgets will not be retained in the SIP

indefinitely.

K. MOBILE6 Grace Period

Comment: We received a comment on

whether the grace period before

MOBILE6 is required in conformity

determinations will be consistent with

the schedules for revising SIP motor

vehicle emissions budgets within 1 or 2

years of MOBILE6'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, EPA understands that a longer

grace period would allow some areas to

better transition to new MOBILE6

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budgets. EPA is considering the

maximum 2-year grace period allowed

by the conformity rule, and EPA will

address this in the future when the final

MOBILE6 emissions model and policy

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 EPA intends to

clarify its policy for implementing

MOBILE6 in conformity determinations

when the final MOBILE6 model is

released. EPA believes that MOBILE6

should be used in conformity

determinations once new MOBILE6

budgets are found adequate.

L. Two-Year Option To 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 with MOBILE6,

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 to use the 1-

year option, if desired, or submit a new

commitment consistent with the

alternative 2-year option. EPA expects

that state and local agencies have

consulted on which option is

appropriate and have considered the

impact on future conformity

determinations. New Jersey has

committed to revise its budgets within

one-year of MOBILE6's release.

M. Measures for the 1-Hour NAAQS and

for Progress Toward 8-Hour NAAQS

Comment: One commenter notes that

EPA has been working toward

promulgation of a 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 measures be 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 of the CAA and

implementing regulations allow.

Response: The 1-hour standard

remains in effect for all of these areas

and the SIPs that have been submitted

are for the purpose of achieving that the

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 if EPA

determines that the SIP meets the

requirements of the CAA. EPA believes

that the SIPs for the severe areas meet

the requirements for attainment

demonstrations for the 1-hour standard

and thus, could not disapprove them

even if EPA 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 of the 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 by the EPA,

implementation of this standard has

been delayed while certain aspects of

the standard remain before the United

States Circuit Court of Appeals. The

states and the EPA have yet to define

the 8-hour ozone nonattainment areas

and the EPA has yet to issue guidance

and requirements for the

implementation of the 8-hour ozone

standard.

N. Attainment and Post 1999

Reasonable Further Progress

Demonstrations

Comment: One commenter claims that

the plans fail to demonstrate emission

reductions of 3 percent per year over

each 3-year period between November

1999 and November 2002; and

November 2002 and November 2005;

and the 2-year period between

November 2005 and November 2007, as

required by 42 U.S.C. section

7511a(c)(2)(B). The states have not even

attempted to demonstrate compliance

with these requirements, and EPA has

not proposed to find that they have been

met.

The EPA has absolutely no authority

to waive the statutory mandate for 3

percent annual reductions. The statute

does not allow EPA to use the NOx SIP

Call or 126 orders as an excuse for

waiving ROP deadlines. The statutory

ROP requirement is for emission

reductions-not ambient reductions.

Emission reductions in upwind states

do not waive the statutory requirement

for 3 percent 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 of the post-99 RFP

demonstrations at the same time as EPA

proposed action on the area's attainment

demonstration. New Jersey submitted its

Post-99 RFP Plans on April 11, 2001 and

EPA proposed approval on September

12, 2001 (66 FR 47419). EPA is

approving the RFP Plans as part of this

action. Moreover, EPA has not provided

that area's may rely on upwind

reductions for purposes of meeting the

ROP requirements. Rather, states,

including New Jersey, are relying on instate NOx and VOC measures to meet

the ROP requirement.

IV. Conclusion

As described above, EPA does not

believe any of the comments we

received on the proposals published for

the attainment demonstrations for the

New Jersey portions of the Northern

New Jersey and the Trenton ozone

NAAs should affect EPA's

determination that the SIP is fully

approvable as meeting the attainment

demonstration requirements of sections

182(c)(2) and (d) of the CAA. EPA is

approving several SIP revisions that

relate to attainment of the one-hour

ozone standard in New Jersey. The SIP

revisions include New Jersey's one-hour

ozone attainment demonstrations for the

state's portions of the Northern New

Jersey and the Trenton NAAs, all of the

enforceable commitments, a RACM

analysis, 1996 periodic emission

inventory, 2002, 2005 and 2007 ozone

projection year emission inventories,

2002, 2005 and 2007 RFP 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

New Jersey NAAs, respectively. EPA is

approving these attainment budgets

until new budgets using MOBILE6 are

submitted and found adequate.

Similarly, if new mobile source

measures are submitted to fill the

shortfall, the revised budgets will apply

after they are submitted and found

adequate. Also, EPA is approving the

motor vehicle 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 to review by the

Office of Management 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, or Use" (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 that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely 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 it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified 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,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (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 of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045

"Protection of Children 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 of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (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 of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by April 5, 2002.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: January 14, 2002.

Jane M. Kenny,

Regional Administrator, Region 2.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart FF-New Jersey

2. Section 52.1582 is amended by

adding new paragraph (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 New Jersey portion of the

Philadelphia/Wilmington/Trenton

nonattainment area and the 2002, 2005

and 2007 ozone projection year

emission inventories for the New Jersey

portion of the New York/Northern New

Jersey/Long Island nonattainment area

included in New Jersey's April 11, 2001

State Implementation Plan revision are

approved.

(3) The 2002 and 2005 Reasonable

Further Progress Plans for the New

Jersey portion of the Philadelphia/

Wilmington/Trenton nonattainment

area and the 2002, 2005 and 2007

Reasonable Further Progress Plans for

the New Jersey portion of the 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

New Jersey portions of the Philadelphia/

Wilmington/Trenton nonattainment

area and the New York/Northern New

Jersey/Long Island nonattainment area

included in New Jersey's April 11, 2001

State Implementation Plan revision are

approved.

(5) The 2002 and 2005 conformity

emission budgets for the New Jersey

portion of the Philadelphia/

Wilmington/Trenton nonattainment

area and the 2002, 2005 and 2007

conformity emission budgets for the

New Jersey portion of the 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 as New Jersey

submits revised budgets consistent with

its commitments to revise the budgets

with respect to MOBILE6 and additional

measures and EPA finds those revised

budgets adequate.

(6) The Reasonably Available Control

Measure Analysis for the New Jersey

portion of the Philadelphia/

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Federal Register/Vol. 67, No. 23 / Monday, February 4, 2002 / Rules and Regulations

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 by New

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 New Jersey

portions of the 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 of reductions identified by

EPA for attainment of the 1-hour ozone

standard;

(ii) To submit revised State

Implementation Plan and motor vehicle

emissions budgets by October 31, 2001

if additional 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 submit the results to EPA by

December 31, 2003.

[FR Doc. 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 (EPA or Agency).

ACTION: Final rule.

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 of the 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 by the Clean Air Act which

will result in emission reductions that

will help achieve attainment of the 1-

hour national ambient air quality

standard for ozone in the New YorkNorthern New Jersey-Long Island

nonattainment area.

EFFECTIVE DATE: This rule will be

effective March 6, 2002.

ADDRESSES: Copies of the State's

submittals are available at the following

addresses for inspection during normal

business hours:

Environmental Protection Agency,

Region 2 Office, Air Programs Branch,

290 Broadway, 25th Floor, New York,

NY 10007-1866

New York State Department of

Environmental Conservation, Division

of Air Resources, 625 Broadway, 2nd

Floor, Albany, New York 12233

Environmental Protection Agency, Air

and Radiation Docket and Information

Center, Air Docket (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 of Contents

I. What actions is EPA taking today?

II. What are the details of EPA's specific

actions?

A. 2002, 2005 and 2007 Projection Year

Emission Inventories

B. 2002, 2005 and 2007 Reasonable 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 were received in

response to EPA's proposals and how

has EPA responded to those comments?

A. Attainment Demonstration

1. General Comments

2. Weight of Evidence

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 of Attainment 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 of Motor 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 of Control Programs

J. MOBILE6 and Motor Vehicle Emissions

Budgets

K. MOBILE6 Grace Period

L. Two-Year Option to Revise the Motor

Vehicle Emissions Budgets

M. Measures for the 1 -hour national

ambient air quality standards (NAAQS)

and for Progress 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 of the 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

of the New York-Northern New JerseyLong Island Area is composed of New

York City and the counties of Nassau,

Suffolk, Westchester and Rockland and

the towns of Blooming Grove, Chester,

Highlands, Monroe, Tuxedo, Warwick

and Woodbury in Orange County (40

CFR 81.333). This nonattainment area

will be referred to as the New York

Metro Area.

Specifically, EPA is approving New

York's:

-Emission inventories for 2002, 2005

and 2007 (referred to as projection

year inventories);

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