
[Federal Register: May 8, 2009 (Volume 74, Number 88)]
[Proposed Rules]               
[Page 21578-21588]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my09-16]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2008-0497, FRL-8901-3]

 
Approval and Promulgation of Implementation Plans; New Jersey 
Ozone Attainment Demonstration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing action 
on the ozone attainment demonstration portion of a comprehensive State 
Implementation Plan revision submitted by New Jersey to meet Clean Air 
Act requirements for attaining the 8-hour ozone national ambient air 
quality standard. EPA is proposing to disapprove New Jersey's 
demonstration of attainment of the 8-hour ozone standard.

DATES: Comments must be received on or before June 8, 2009.

ADDRESSES: Submit your comments, identified by Docket Number EPA-R02-
OAR-2008-0497, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: Werner.Raymond@epa.gov.
     Fax: 212-637-3901
     Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket No. EPA-R02-OAR-2008-
0497. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters or any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert Kelly (kelly.bob@epa.gov) 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 Proposing?
II. Background Information
    A. History and Time Frame for the State's Attainment 
Demonstration SIP
    B. Moderate Area Requirements
    C. Clean Air Act Requirement for Multi-State Ozone Nonattainment 
Areas
III. What Was Included in New Jersey's SIP Submittals?
IV. EPA's Review and Technical Information
    A. Attainment Demonstration
    1. What Are the Components of a Modeled Attainment 
Demonstration?
    2. What Were the Results of the State's Weight of Evidence 
Analysis?
    a. EPA Requirements for the Weight of Evidence Analysis
    b. State's Weight of Evidence Argument and EPA's Evaluation
    c. Summary of Weight of Evidence Discussion
    3. What Is EPA's Evaluation?
V. What Are the Consequences of a Disapproved SIP?
    A. What Are the Act's Provisions for Sanctions?
    B. What Federal Implementation Plan Provisions Apply if a State 
Fails to Submit an Approvable Plan?
    C. What Are the Ramifications Regarding Conformity?
VI. What Are EPA's Conclusions?
VII. Statutory and Executive Order Reviews

I. What Action is EPA Proposing?

    The Environmental Protection Agency (EPA) has reviewed New Jersey's 
comprehensive State Implementation Plan (SIP) revision for attaining 
the 0.08 ppm 8-hour ozone national ambient air quality standards (NAAQS 
or standard) \1\ in the State of New Jersey's moderate nonattainment 
areas along with other related Clean Air Act (Act) requirements 
necessary to insure attainment of the standard. The EPA is proposing to 
disapprove New Jersey's 8-hour ozone attainment demonstration because 
the EPA has determined that the photochemical modeling does not 
demonstrate attainment and the weight of evidence analysis that New 
Jersey uses to support the attainment demonstration does not provide

[[Page 21579]]

sufficient evidence to provide confidence that the two nonattainment 
areas located in New Jersey will attain the NAAQS by the June 2010 
deadline.
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    \1\ Unless otherwise specifically noted in the action, 
references to the 8-hour ozone standard are to the 0.08 ppm ozone 
standard promulgated in 1997.
---------------------------------------------------------------------------

    EPA's analysis and findings are discussed in this proposed 
rulemaking and a more detailed discussion is contained in the Technical 
Support Document for this Proposal which is available on line at 
www.regulations.gov, Docket number EPA-R02-OAR-2008-0497.

II. Background Information

A. History and Time Frame for the State's Attainment Demonstration SIP

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA 
set the 8-hour ozone standard based on scientific evidence 
demonstrating that ozone causes adverse health effects at lower ozone 
concentrations and over longer periods of time than was understood when 
the pre-existing 1-hour ozone standard was set. EPA determined that the 
8-hour standard would be more protective of human health, especially 
with regard to children and adults who are active outdoors, and 
individuals with a pre-existing respiratory disease, such as asthma.
    On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 8-hour ozone standard. These actions became effective on June 15, 
2004. In addition, EPA promulgated its Phase 1 Rule for implementation 
of the 8-hour standard, which provided how areas designated 
nonattainment for the 8-hour ozone standard would be classified (April 
30, 2004 (69 FR 23951)). The entire state of New Jersey is classified 
as being in nonattainment, divided between two 8-hour ozone moderate 
nonattainment areas it shares with other states, the New York-Northern 
New Jersey-Long Island, NY-NJ-CT nonattainment area, and the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area. 
The New Jersey portion of the New York-Northern New Jersey-Long Island, 
NY-NJ-CT nonattainment area consists of the following New Jersey 
counties: Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, 
Morris, Passaic, Somerset, Sussex, Union and Warren. The New Jersey 
portion of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
nonattainment area consists of the following New Jersey counties: 
Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, 
Ocean and Salem.
    These designations triggered the Act's requirements under section 
182(b) for moderate nonattainment areas, including a requirement to 
submit an attainment demonstration. EPA's Phase 2 8-hour ozone 
implementation rule, published on November 29, 2005 (70 FR 71612) 
(Phase 2 Rule) specifies that states must submit attainment 
demonstrations for their nonattainment areas to the EPA by no later 
than three years from the effective date of designation, that is, by 
June 15, 2007. 40 CFR 51.908(a)

B. Moderate Area Requirements

    On November 29, 2005, EPA published the Phase 2 Implementation rule 
which addresses the control obligations that apply to areas designated 
nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and 
Phase 2 Rules outline the SIP requirements and deadlines for various 
requirements in areas designated as moderate nonattainment. For such 
areas modeling and attainment demonstrations with projection year 
emission inventories were due by June 15, 2007, along with reasonable 
further progress plans, reasonably available control measures, motor 
vehicle emissions budgets and contingency measures (40 CFR 51.908(a), 
and (c) 59.910, 59.912). This action addresses New Jersey's 
demonstration of attainment of the 8-hour ozone standard, which for 
moderate areas is to be attained by the ozone season before the 
attainment date of June 2010. In order to demonstrate attainment by 
June 2010, the area must adopt and implement all controls necessary for 
attainment by the beginning of the 2009 ozone season and demonstrate 
that the level of the standard will be met during the 2009 ozone 
season.

C. Clean Air Act Requirement for Multi-State Ozone Nonattainment Areas

    Section 182(j) of the Clean Air Act requires each state within a 
multi-state ozone nonattainment area to specifically use photochemical 
grid modeling and take all reasonable steps to coordinate, 
substantively and procedurally, the revisions and implementation of 
State implementation plans applicable to the nonattainment area 
concerned. Under this subsection of the Clean Air Act, EPA may not 
approve any SIP revision for a State that fails to comply with these 
requirements.

III. What Was Included in New Jersey's SIP Submittals?

    After completing the appropriate public notice and comment 
procedures, New Jersey made a submittal in order to address the Act's 
8-hour ozone attainment requirements identified in Section II.A.2. On 
October 29, 2007, New Jersey submitted a comprehensive 8-hour ozone SIP 
for the New Jersey portions of the New York-Northern New Jersey-Long 
Island, NY-NJ-CT and the Philadelphia-Wilmington-Atlantic City, PA-NJ-
MD-DE nonattainment areas. It included attainment demonstrations, 
reasonable further progress (RFP) plans for 2008 and 2009, reasonably 
available control measures analyses for both areas, contingency 
measures, on-road motor vehicle emission budgets, and general 
conformity emission budgets for McGuire Air Force Base and Lakehurst 
Naval Air Station. This SIP revision was subject to notice and comment 
by the public and the State addressed the comments received on the 
proposed SIPs before adopting the plans and submitting them for EPA 
review and approval into the SIP.
    Only the attainment demonstration is evaluated in this proposal. 
EPA has evaluated and proposed action on the other portions of New 
Jersey's SIP in a separate Federal Register action. See 74 FR 2945, 
January 16, 2009.

IV. EPA's Review and Technical Information

A. Attainment Demonstration

1. What Are the Components of a Modeled Attainment Demonstration?
    Section 110(a)(2)(k) of the Clean Air Act requires states to 
prepare air quality modeling to demonstrate how they will meet ambient 
air quality standards. EPA determined that states must use 
photochemical grid modeling, or any other analytical method determined 
by the Administrator to be at least as effective, to demonstrate 
attainment of the ozone health-based standard in areas classified as 
`moderate' or above, and to do so by the required attainment date. See 
40 CFR 51.908(c). In 40 CFR 51.903, EPA specified how areas would be 
classified with regard to the 8-hour ozone standard set by EPA in 1997. 
EPA followed these procedures and classified the Philadelphia-
Wilmington-Atlantic City, PA-NJ-DE-MD and New York-Northern New Jersey-
Long Island, NY-NJ-CT ozone nonattainment areas as moderate (69 FR 
23858). Since the attainment date is June 2010 for moderate areas, 
these areas must achieve emission reductions by the beginning of the 
ozone season of 2009 in order for ozone concentrations to be reduced 
and meet the level of the standard during the last complete ozone 
season before the 2010 deadline. See 40 CFR 51.908(d).

[[Page 21580]]

    EPA's photochemical modeling guidance is found at Guidance on the 
Use of Models and Other Analyses for Demonstrating Attainment of Air 
Quality Goals for Ozone, PM2.5, and Regional Haze, EPA-454/B-07-002, 
April 2007. The photochemical modeling guidance is divided into two 
parts. One part describes how to use a photochemical grid model for 
ozone to assess whether an area will come into attainment of the air 
quality standard. A second part describes how the user should perform 
supplemental analyses, using various analytical methods, to determine 
if the model overpredicts, underpredicts, or accurately predicts the 
air quality improvement projected to occur by the attainment date. The 
guidance indicates that states should review these supplemental 
analyses, in combination with the modeling analysis, in a ``weight of 
evidence'' assessment to determine whether each area is likely to 
achieve timely attainment.
    New Jersey's SIP submittal (also referred to as the New Jersey SIP) 
addresses each of the elements of a modeling attainment demonstration. 
The submittal explains how on warm, sunny days, winds at the surface 
and aloft move emissions from sources of ozone-forming chemicals within 
and outside New Jersey to create high ozone concentrations in New 
Jersey. In addition, it indicates that emissions from large combustion 
sources are transported eastward by upper level winds to the east 
coast, adding to the ozone formed locally.
    The Ozone Transport Commission's (OTC's) Modeling Committee 
developed a protocol for modeling the ozone problem in the northeastern 
United States. The OTC Modeling Committee coordinated preparing and 
running the photochemical grid model. It chose the Community Multi-
scale Air Quality Model (CMAQ) as the photochemical grid model of 
choice. EPA concurs that this model is appropriate for modeling the 
formation and distribution of ozone. The model domain covered almost 
all of the eastern United States, with a high-resolution grid covering 
the states in the northeast ozone transport region, including New 
Jersey.
    The OTC Modeling Committee used weather data for the entire 2002 
ozone season in the CMAQ. 2002 was the base year for the attainment 
plans and the year of the emission inventory used in the base year 
modeling. Using a full ozone season covers many different weather 
conditions when ozone episodes occur and exceeds EPA's recommendations 
for episode selection. The OTC Modeling Committee used a Mesoscale 
Meteorological model, version five (MM5), a weather forecast model 
developed by Pennsylvania State University and the National Center for 
Atmospheric Research for the weather conditions used by the 
photochemical grid model. Details about how the states used the MM5 
model are in Appendix D4 of New Jersey's SIP submittal.
    States across the eastern United States provided emissions 
information from their sources to be used in the model. The Mid 
Atlantic Regional Air Management Association (MARAMA) collected and 
quality assured the states' emissions data and processed these data for 
the photochemical grid model to use. The states also included the 
control measures that were already adopted as well as the control 
measures that the state was committing to adopt from a list of ``Beyond 
On the Way'' (BOTW) control measures. The lists of control measures 
provided by the states to be included in the modeling are summarized in 
Table 1. Emissions data for the model from outside the Northeast was 
obtained from other regional planning organizations. States provided 
projected emissions for 2009 that account for emission changes due to 
regulations the states plan to implement by the beginning of the 2009 
ozone season, as well as expected growth. The modeling uses these 
emissions to calculate ozone concentrations for the attainment ozone 
season of 2009.

                                                                          Table 1--Ozone Transport Region-Wide Modeling Assumptions for the 2009 BOTW Model Run
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              ICI boilers--area sources                  ICI boilers--non-EGU point sources
                                                              Consumer  PFC 2005/   Asphalt   Adhesives ------------------------------------------------------------------------------------------------   Cement     Glass     Asphalt
                                                              products     2009      paving       &      < 25 mmBtu/    25-50      50-100    < 25 mmBtu/    25-50      50-100      100-250   >250 mmBtu/   kilns     furnaces    plants
                                                             2005/2009                         sealants      hr       mmBtu/hr    mmBtu/hr       hr       mmBtu/hr    mmBtu/hr    mmBtu/hr       hr
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NY NAA:
    Connecticut............................................         X          X          X          X           X           X           X           X           X           X           X   ..........  .........  .........         X
    New Jersey.............................................         X          X          X          X   ..........          X           X           X   ..........  ..........          X   ..........  .........  .........  .........
    New York...............................................         X          X          X          X           X           X           X           X           X           X           X   ..........         X          X          X
Phila. NAA:
    Delaware...............................................         X          X   .........         X   ..........  ..........  ..........  ..........  ..........  ..........          X   ..........  .........  .........  .........
    Maryland...............................................         X          X          X          X   ..........  ..........  ..........  ..........  ..........  ..........          X   ..........         X          X   .........
    New Jersey.............................................         X          X          X          X   ..........          X           X           X   ..........  ..........          X   ..........  .........  .........  .........
    Pennsylvania...........................................         X          X   .........         X   ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........  .........         X   .........
Other States:
    Maine..................................................         X          X   .........         X   ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........         X   .........  .........
    New Hampshire..........................................         X          X          X   .........  ..........  ..........  ..........  ..........          X           X           X   ..........  .........  .........  .........
    Vermont................................................  .........  .........  .........  .........  ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........  .........  .........  .........
    Massachusetts..........................................         X   .........         X          X   ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........  .........         X   .........
    Rhode Island...........................................         X          X          X          X   ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........  .........  .........  .........
    DC.....................................................         X          X          X          X   ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........  .........  .........         X
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
*Source: MACTEC. Development of Emission Projections for 2009, 2012, and 2018 for NonEGU Point, Area, and Nonroad Sources in the MANE-VU Region, Final TSD. Prepared for the Mid-Atlantic Regional Air Management Association by MACTEC
  Federal Programs, Inc., February 28, 2007.

    The states that share nonattainment areas with New Jersey have 
chosen to adopt different sets of control strategies, as shown in Table 
1. This Table does not include additional measures that New Jersey has 
labeled as ``quantifiable additional measures'' and ``unquantifiable 
additional measures.'' These additional measures, that New Jersey's SIP 
submittal indicates are necessary to show attainment of the ozone 
standard, were not included in the photochemical grid modeling. Some, 
but not all, of New Jersey's neighboring states are planning to 
implement these additional measures.
    The performance of the CMAQ photochemical grid model in predicting 
ozone, and the chemicals that form ozone, met EPA's guidelines for 
model performance. The model outputs are generally consistent with the 
day-to-day patterns of observed data, with low bias and error. The OTC 
Modeling Committee noted that the modeling system tends to overpredict 
low concentrations and slightly underpredict peak concentrations. EPA 
concurs with New Jersey's assessment that the model was properly set 
up, met all EPA performance requirements and was appropriate for use in 
New Jersey's nonattainment areas.
    For the attainment analysis, the states used the results from the 
photochemical

[[Page 21581]]

grid model in a relative sense, as recommended by EPA's photochemical 
modeling guidance, by calculating the difference between ozone 
predicted by the photochemical grid model in 2002 and ozone predicted 
using the emission controls New Jersey and other states planned to have 
in place by 2009.\2\ To meet EPA's attainment test, when the difference 
in ozone from 2002 to 2009 is applied to the baseline air quality data 
centered in the base year of 2002, the resulting 2009 prediction must 
be that ozone is less than 85 parts per billion (ppb) at all monitoring 
stations.
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    \2\ This action refers to the modeling predicting ozone in 2009 
as a surrogate for attaining with the three-year design value, and 
is not a literal prediction for the 2009 ozone season. Since the 
attainment date is June 2010 for New Jersey's areas, these areas 
must achieve emission reductions by the beginning of the ozone 
season of 2009 in order for ozone concentrations to be reduced, and 
meet the level of the standard, during the last complete ozone 
season before the 2010 deadline. (See 40 CFR 51.908(d).)
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    In summary, the basic photochemical grid modeling used by New 
Jersey in its SIP submittal meets EPA's guidelines and, when used with 
the methods recommended in EPA's modeling guidance, is acceptable to 
EPA. When New Jersey applies EPA's methods to its data, using the 
photochemical grid model that includes the modeled emission reduction 
strategies prepared by New Jersey and the OTC states, it predicts that 
ozone levels in the attainment year would be 92 ppb in the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD and 90 ppb in the 
New York-Northern New Jersey-Long Island, NY-NJ-CT ozone nonattainment 
areas. Thus, the photochemical model predicts New Jersey will not reach 
the 84 ppb concentration level that marks attainment of the ozone 
standard by the 2009 ozone season.
2. What Were the Results of the State's Weight of Evidence Analysis?
a. EPA Requirements for the Weight of Evidence Analysis
    EPA's photochemical modeling guidance strongly recommends states 
complement the photochemical air quality modeling in situations where 
modeling predicts the area to be close to (within several parts per 
billion of) the ozone standard. While this is not the case in New 
Jersey where photochemical modeling predicts levels significantly 
greater than the ozone standard, New Jersey nevertheless chose to 
perform additional analyses to determine if attainment could be 
demonstrated. EPA can accept results of additional analyses to be used 
in a weight of evidence determination to show that attainment is likely 
in spite of photochemical modeling predictions to the contrary. 
However, the greater the difference between the ozone standard and the 
photochemical modeling predictions, the more compelling the additional 
evidence produced by these additional analyses needs to be. EPA notes 
in its guidance that if the concentration predicted by the 
photochemical model is 88 ppb or higher, it is far less likely that the 
more qualitative arguments made in a weight of evidence determination 
can be sufficiently convincing to conclude that the ozone standard will 
be attained. In New Jersey's case, the photochemical model predictions 
of 92 ppb in the Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD and 
90 ppb in the New York-Northern New Jersey-Long Island, NY-NJ-CT ozone 
nonattainment areas exceed 88 ppb. Thus the evidence needed to show 
that these areas will actually attain the ozone standard, despite the 
model's predictions, must be very compelling for EPA to approve these 
attainment demonstrations.
b. State's Weight of Evidence Argument and EPA's Evaluation
    The photochemical modeling results, used in accordance with EPA's 
guidelines, predict that New Jersey's nonattainment areas will not 
attain by a wide margin by the 2009 ozone season. New Jersey's SIP 
submittal uses alternatives to the EPA guideline methods to adjust for 
perceived flaws in the photochemical grid model and estimate the ozone 
reductions that may be produced by additional measures not included in 
the model. New Jersey supports their alternatives using data and 
scientific research to make the case that its nonattainment areas could 
attain the ozone standard by the 2009 ozone season.
    EPA has carefully reviewed New Jersey's attainment demonstration 
including these supplementary data and research studies. EPA attempted 
to determine if the additional information provided by New Jersey is an 
acceptable supplement to the photochemical grid modeling and can be 
approved by EPA to meet the Clean Air Act requirement as ``* * * any 
other analytical method determined * * * to be at least as effective'' 
to supplement the photochemical grid modeling (40 CFR 51.908). EPA has 
evaluated the information provided by the State and other information 
relevant to whether or not New Jersey's ozone nonattainment areas will 
attain the ozone standard by 2009 and concludes that this information 
does not demonstrate that New Jersey will attain the ozone standard by 
2009. We discuss the details of New Jersey's analyses and EPA's 
conclusions in the sections that follow.
    New Jersey's weight of evidence assessment considers two approaches 
to ``adjust'' the photochemical model predictions in 2009. One approach 
predicts that neither of the two nonattainment areas in which New 
Jersey is located will attain the standard in 2009 based on modeling 
alone. The second approach predicts the New York-Northern New Jersey-
Long Island, NY-NJ-CT nonattainment area could attain the standard in 
2009 based on adjusted photochemical modeling predictions. New Jersey's 
SIP submittal, Table ES.1 (summarized in Table 2), provides the results 
of New Jersey's analyses of attainment of the ozone standard. The 
submittal summarizes New Jersey's attainment demonstration in these 
words: ``Table ES.1 presents the results for the two controlling 
monitors in the multi-state nonattainment areas associated with New 
Jersey. The results indicated that it is plausible for both areas to 
reach attainment by June 15, 2010.'' EPA draws attention to this 
statement since New Jersey's technical analysis does not assert that 
attainment is likely or that attainment is certain within some set of 
parameters.

                                                                Table 2--2009 Ozone Design Values Predicted in the New Jersey SIP
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                                                                        Alternative baseline and                                         Effect of emissions
    Site name, county and state        Photochemical grid modeling    maximum  reduction (approach       Adjusted for transport       quantified but not modeled   Estimated effect of emissions
                                                 result                            1)                         (approach 2)                       \1\                     not quantified \2\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Stratford, Fairfield Co., CT \3\...  90 ppb........................  83 ppb........................  85 ppb.......................  -0.2 to -2 ppb...............  -1 to -3 ppb.
Colliers Mills, Ocean Co., NJ \4\..  92 ppb........................  86 ppb........................  85 ppb.......................  -0.3 to -4 ppb...............  -1 to -3 ppb.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Attainment of the ozone standard is 84 ppb or less.

[[Page 21582]]


\1\ From New Jersey SIP submittal, Table 5.11 and Section 5.4.4.4.
\2\ From New Jersey SIP submittal, Section 5.4.5.
\3\ New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area.
\4\ Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD nonattainment area.

    In the case of the Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-
MD and New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment 
areas, represented in Table 2 by the Colliers Mills and Stratford 
monitoring sites, respectively, New Jersey notes that attainment is 
``plausible'' if the modeled results are adjusted and if New Jersey 
accounts for the effects of implementing additional measures not 
considered in the photochemical modeling. While New Jersey's SIP 
submittal states it expects to implement these additional measures, New 
Jersey notes that they are not part of New Jersey's attainment 
demonstration SIP.
    As noted previously, the second approach to adjusting the 
photochemical modeling predictions, which relies on adjustments to the 
base line data and amount of reduction predicted by the modeling, 
predicts 2009 concentrations to be less than the 85 ppb ozone standard 
only in the New York-Northern New Jersey-Long Island, NY-NJ-CT New York 
City ozone nonattainment area. See the results for the Stratford, CT 
receptor in Table 2. For the Philadelphia-Wilmington-Atlantic City, PA-
NJ-DE-MD area, neither approach to adjusting the photochemical modeling 
demonstrates attainment. See the results for the Colliers Mills, NJ 
receptor in Table 2. New Jersey relies on additional emission control 
measures to argue that the NAAQS will be attained in 2009 in both of 
its nonattainment areas. New Jersey estimates these additional measures 
could reduce concentrations by anywhere from 1 ppb to 5 ppb at Colliers 
Mills and from less than 1 ppb to 2 ppb at Stratford. EPA's evaluation 
of these additional measures is discussed later in this action.
    New Jersey's attainment demonstration relies on all of the 
following to demonstrate attainment by 2009 in both of its 
nonattainment areas:
    (1) New Jersey uses an alternative to the modeling guidance method 
that provides a 2002 starting point closer to attainment and a larger 
ozone reduction than the modeling average,
    (2) New Jersey includes specified attainment measures which are not 
yet implemented, but committed to in its SIP submittal, and
    (3) New Jersey relies on the benefits from additional measures 
without specifically including them in the attainment demonstration.
    Even if these adjustments and assumptions are acceptable, the 
additional measures not included in the modeling show attainment only 
with the upper limit of the estimated benefits.
    The next step is to evaluate each of these assumptions in New 
Jersey's SIP submittal to determine if they help demonstrate that 
attainment by 2009 is likely.
    Table 2 includes the 2009 predicted ozone concentrations from the 
photochemical grid modeling. Applying the methods recommended in EPA's 
modeling guideline to the output from the photochemical grid model 
results in predictions of ozone in 2009 to be 92 ppb for the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD and 90 ppb for the 
New York-Northern New Jersey-Long Island, NY-NJ-CT areas. The modeled 
concentrations in 2009 are significantly above the 84 ppb concentration 
used as the benchmark for attaining the ozone air quality standard. As 
previously noted, EPA does not rule out the use of alternative methods 
even when the photochemical grid modeling results demonstrate the areas 
are far from attaining the standard, but EPA's modeling guidance notes 
that more qualitative results are less likely to support a conclusion 
differing from the outcome of the modeled attainment test. The guidance 
notes that, in most cases, considerable amounts of precursor control 
(e.g., 20-25 percent or more) would be needed to lower projected ozone 
design values even by 3 ppb.
 New Jersey's Adjustments to Modeled Results--Overview
    New Jersey used several different methods to calculate the ozone 
for the attainment year, based on 2009's emissions--methods that 
differed from EPA's modeling guidance. In the first approach, New 
Jersey used alternative methods of calculating the base starting point 
design value and the amount of reduction predicted by the model. 
Combined, these two adjustments predict an attainment year ozone 
concentration of 86 ppb in the Philadelphia-Wilmington-Atlantic City, 
PA-NJ-DE-MD nonattainment area and 83 ppb in the New York-Northern New 
Jersey-Long Island, NY-NJ-CT nonattainment area, therefore attaining 
the standard only in the New York-Northern New Jersey-Long Island, NY-
NJ-CT nonattainment area.
    The second approach used the results of scientific research to 
adjust the ozone concentration predicted by photochemical grid 
modeling. This approach predicts attainment year ozone concentrations 
of 85 ppb in both the Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-
MD and the New York-Northern New Jersey-Long Island, NY-NJ-CT 
nonattainment areas. Using this approach, attainment is not reached 
without additional measures in either of New Jersey's nonattainment 
areas.
 New Jersey's Adjustments to Modeled Results--First Approach, 
Part 1
    One of New Jersey's methods for adjusting the modeled results uses 
alternative ways of calculating the base air quality value for 2002. 
New Jersey's SIP submittal uses a straight five-year average of the 
fourth-highest design value from 2000 to 2004. EPA's modeling guidance 
recommends using an average of the three years of design value centered 
on 2002, which creates a weighted five-year average. While New Jersey's 
SIP submittal notes that EPA's method of providing a weighted average 
baseline value weights the base year of 2002 more heavily than other 
years, EPA intended this, so that the resulting value was influenced 
the most by the ozone data from the base year of the emission 
inventory. There are other ways of calculating a baseline value that 
the State did not use. For example, for the peak ozone site of the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD nonattainment area 
at Colliers Mills:

    The EPA guideline method baseline is 105.7 ppb \3\;
---------------------------------------------------------------------------

    \3\ The 2002 base air quality value for the modeling base year 
is 106 ppb in New Jersey's SIP submittal. EPA's guideline method 
results in a value of 105.7 ppb.
---------------------------------------------------------------------------

    the New Jersey alternative baseline is 104 ppb;
    the 2002 design value is 112 ppb; and
    the 2003 designation design value, centered on 2002, is 106 ppb.

    Various methods could result in 2002's base year ozone of two ppb 
lower than the modeling guidance method (New Jersey's five year average 
centered on 2002) or as much as 7 ppb higher than the guidance method 
(single design value from 2002). New Jersey relies on the lower end of 
the range of possible results, and this brings the modeling result 
closer to attainment. In addition,

[[Page 21583]]

the straight five-year average method used by New Jersey, while 
centered on 2002, is skewed by giving 2004 as much influence as other 
years. The ozone data from 2004 includes the effects of reductions made 
between the base year 2002 and the attainment year of 2009, when major 
reduction in nitrogen oxides (NOX) occurred and are 
accounted for in the photochemical grid modeling. Specifically, EPA's 
NOX SIP Call and NOX Budget Trading Program 
produced significant reductions before the 2004 ozone season. The 
summer of 2004 was also a cooler than normal summer, possibly biasing 
the base value further downward toward attainment. In an unweighted 
five-year average, 2004 has as much influence on the result as each of 
the other four years, so it provides a significant bias toward 
attainment. Selecting only a method that is lower than the recommended 
method is not a balanced use of the weight of evidence analysis. In 
this case, there are equally plausible alternatives that produce higher 
values. EPA does not find New Jersey's selected method of adjusting the 
base design value to be sufficiently justified and cannot accept it as 
a supplemental method of demonstrating attainment.
 New Jersey's Adjustments to Modeled Results--First Approach, 
Part 2
    In order to predict an ozone design value for the attainment year, 
2009, it is important to know how much ozone will decrease from the 
base year to the attainment year. The modeling predicts ozone in 2002 
and 2009 using each year's emissions and taking the difference between 
them. EPA's modeling guidance suggests using the average percent change 
in ozone at grid cells around a monitoring site.
    For the Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD 
nonattainment area the percent reduction in ozone between 2002 and 2009 
was 9.5 percent at the peak monitor and varied across monitoring sites 
from 6.1 percent to 12.2 percent. New Jersey's SIP submittal uses the 
greatest reduction from all of the monitoring sites instead of using 
the site-specific value for each of the monitoring sites. Using the 
largest reduction from any site in the entire area may not be any more 
correct than using the least reduction from any site in the entire 
area. New Jersey's alternative method is not acceptable in the weight 
of evidence analysis because other methods can produce equally 
plausible changes in ozone that result in higher 2009 predicted ozone 
concentrations than New Jersey's alternative method. EPA does not find 
New Jersey's selection of this adjustment sufficiently justified and 
cannot accept it as a supplemental method of demonstrating attainment.
 New Jersey's Adjustments to Modeled Results--Second Approach--
The Sensitivity of the Photochemical Grid Model to Changes in Emissions 
That Cause Ozone
    New Jersey's SIP submittal includes analyses as to whether the 
photochemical grid model provides for too little ozone reduction for 
the emissions reductions used in the photochemical grid modeling 
(particularly long-range transport of ozone and ozone-forming chemical 
compounds). New Jersey makes the case that, if the model does not 
properly account for transport, future ozone would be lower than 
predicted by the photochemical grid model. Therefore, New Jersey 
proposes adjusting the modeling results downward by 5 ppb to 7 ppb. 
Thus, New Jersey projects 2009 ozone of 85 ppb in both the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD and New York-
Northern New Jersey-Long Island, NY-NJ-CT nonattainment areas.
    New Jersey's analysis relies on other studies that suggest the 
model underpredicts ozone transported aloft and which, if corrected, 
would result in lower predictions in the future. For example, New 
Jersey cites ambient data from sites that are strongly affected by 
transported ozone to support the proposition that the model may have a 
slight bias toward overprediction of the 2009 attainment year ozone. 
Some aircraft vertical soundings from 2002 show that modeled ozone is 
less than predicted by the model. This is important in the 
photochemical grid model since ozone is transported aloft from areas 
with high emissions of ozone-forming compounds--areas where large 
reductions in emissions are expected due to EPA's NOX SIP 
Call and NOX Budget Trading Program. New Jersey is concerned 
that the change in ozone from these areas may also be underpredicted. 
However, the same document also notes that ozone formed along the 
surface from local sources may be underestimated. EPA is concerned that 
New Jersey's SIP does not adequately allow for the possibility that the 
model is giving too much credit to these surface layer ozone 
reductions, which should be accounted for in New Jersey's submittal, if 
it desires to adjust the modeling results for a possible lack of credit 
from distant emission sources.
    New Jersey's SIP submittal cites research on ozone concentrations 
during an electrical blackout in the recent past that suggests the 
model underpredicts the amount of ozone reduction that actually 
occurred during the electrical blackout. During the blackout, measured 
ozone in rural areas west of New Jersey was lower because some power 
plants and some other major sources of ozone-forming compounds were 
shut down. A study cited by New Jersey used a photochemical grid model 
to estimate the effect of the blackout by calculating the change in 
ozone with and without the sources that were shutdown during the 
blackout. Another study compared ozone on the blackout day with a past 
high ozone day with more typical emissions but with similar weather and 
wind patterns to the blackout day. New Jersey's concern was that the 
modeled change was less than the change in ozone between the more 
typical day and the blackout day. New Jersey concludes from this that 
the model is not responsive enough to reductions in transported 
emissions. However, no two days are the same and comparing two 
particular ozone episodes is never exact. The emissions of precursors 
that produce ozone and the meteorological patterns on the day of and 
the days preceding the blackout will never occur the same way twice. 
Another study that EPA finds persuasive shows that the ``typical'' day 
had winds coming from areas that were not the ones most affected by the 
blackout. So, EPA believes the comparison of the typical and blackout 
days is not convincing because the blackout and typical days have ozone 
precursors arriving from different areas. Also, these studies cited by 
New Jersey did not look at the effect of the blackout on air quality in 
the urban nonattainment areas like those in New Jersey. EPA concludes 
that while the blackout study provides some information as to the 
effectiveness of reducing emissions on ozone air quality, the blackout 
day and the more typical day used for comparison have ozone precursors 
from different areas and does not demonstrate that the model is not 
responsive enough to changes in ozone precursor emissions.
    After careful review of these studies, EPA has found significant 
uncertainties in the SIP submittal's technical analysis and therefore 
does not accept New Jersey's conclusion that the modeling system 
underpredicts changes in ozone as emissions change. Arguments in New 
Jersey's SIP submittal that the model may not give full credit for 
emission reductions are supported by limited modeling work. The states 
have not tested their hypothesis with their own modeling. There are 
other studies and ambient data that suggest contradictory

[[Page 21584]]

conclusions. EPA believes any additional ozone reductions beyond the 
photochemical modeling are likely to be far less than the 5 to 7 ppb 
claimed in the New Jersey SIP submittal. Therefore, EPA concludes that 
New Jersey's adjustments to the photochemical grid modeling results are 
not supported by the information provided.
 New Jersey's Adjustments to Modeled Results--Evidence of 
Improvement Based on Air Quality Through 2006
    New Jersey points out that measured design values in the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD and New York-
Northern New Jersey-Long Island, NY-NJ-CT areas in 2006 were close to 
the concentrations predicted by the photochemical grid model for 2009. 
With the passage of time since New Jersey submitted its SIP revision, 
EPA can use more recent air quality data to evaluate New Jersey's 
comparison of the modeled results to actual air quality. These more 
recent measurements, data from 2007 and preliminary air quality data 
from 2008, are significantly higher than the ozone standards. For 
example, when measured air quality data for 2007 are included, the 
design value remains the same or increases in New Jersey's ozone 
nonattainment areas. Ozone design values appear to be moving more 
slowly toward attainment from 2006 to 2008 because the design values in 
2006 were biased low by the cooler-than-normal summer of 2004 and more 
recent design values are more indicative of typical air quality in New 
Jersey's nonattainment areas.
    The observed 2007 design values are well above the values predicted 
by the photochemical grid modeling (using the EPA guideline 
methodology). These data contradict the argument that the modeling 
system is overpredicting ozone in the attainment year. Note that EPA is 
relying on air quality data only as a supporting argument for EPA's 
determination, discussed earlier, that New Jersey's nonattainment areas 
will not attain the ozone standard by the 2009 ozone season. Later in 
this action, EPA reviews the effect of more recent measured ozone data 
on the proposition that emission reductions expected in 2008 and 2009 
will be enough to reduce ozone to attainment levels by 2009.
 Accounting for Additional Emission Reduction Measures Not in 
Modeled Results
    New Jersey's weight of evidence analysis also attempts to quantify 
some emission reductions not included in the modeling. There are two 
kinds of additional reductions that were not included in the 
photochemical grid modeling: reductions that New Jersey can quantify 
and other reductions that are harder to quantify. The most effective 
way to predict changes in ozone is through air quality modeling; 
however, New Jersey did not perform additional modeling runs including 
these additional measures. The New Jersey weight of evidence analysis 
includes an attempt to project the effect of these measures. For the 
additional emission reductions New Jersey describes as 
``quantifiable,'' New Jersey extrapolates data from modeling discussed 
in its SIP submittal. For the additional emission reductions New Jersey 
describes as ``unquantifiable,'' New Jersey uses previously modeled 
sensitivity studies of mobile source controls to estimate the impact of 
these unquantified emission reductions on air quality. Numerically, for 
the quantifiable measures, New Jersey uses extrapolation of the 
photochemical modeling results to predict that additional measures will 
reduce ozone by 0.3 to 4 ppb in the Philadelphia-Wilmington-Atlantic 
City, PA-NJ-DE-MD area and 0.2 to 2 ppb in the New York-Northern New 
Jersey-Long Island, NY-NJ-CT area.
    New Jersey's SIP submission indicates if the projected impact of 
these two sets of measures is combined and their peak effects occurred 
at the peak monitoring location, these additional measures could reduce 
2009 ozone by 1 to 7 ppb for the Philadelphia-Wilmington-Atlantic City, 
PA-NJ-DE-MD area and 1 to 5 ppb for the New York-Northern New Jersey-
Long Island, NY-NJ-CT area. The photochemical grid modeling predicted 
modeled air quality for 2009 to be above the standard by 8 ppb in 
Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD and above the 
standard by 6 ppb in New York-Northern New Jersey-Long Island, NY-NJ-
CT. Even assuming these additional measures produced the largest amount 
of benefits estimated by New Jersey (which we believe would not be the 
appropriate level to consider) New Jersey's nonattainment areas are 
predicted not to attain the standard.
    For measures New Jersey classifies as ``non-quantifiable,'' its SIP 
submittal notes that when the State of Maryland modeled reduced auto 
emissions from decreased auto use due to telecommute programs, 
reductions similar to those measures proposed by New Jersey as 
unquantifiable, modeled ozone decreased by 1 to 3 ppb. EPA notes that 
Maryland modeled a forty percent reduction in mobile source emissions 
for the State's telecommute strategy. Maryland modeled the emission 
reductions that would occur if forty percent of all drivers decided not 
to drive to work on high ozone days; the model predicted ozone would be 
reduced by 1 to 3 ppb.
    The additional strategies proposed by New Jersey, both the 
quantifiable and the unquantifiable are not large enough to reduce 
emissions by the equivalent of a forty percent reduction in motor 
vehicle use. Consequently, there is no supporting information that New 
Jersey's additional measures will reduce ozone by more than a few parts 
per billion (and more likely, less), and certainly not by the 5 ppb to 
7 ppb suggested by adding together the upper end of the estimates 
provided in New Jersey's SIP submittal.
    New Jersey's attainment demonstration predicts attainment only if 
EPA accepts the upper range of these emission reductions not included 
in the modeling, plus adjustments to the model results. EPA does not 
find sufficient support for either of these alternative analyses.
    While New Jersey has committed to adopt these additional measures 
(see page 5-47 of the New Jersey SIP submittal, Table 5.11 ``Additional 
Quantifiable Measures Not Included in the 2009 BOTW Modeling), New 
Jersey has specifically not included these measures as part of its 
attainment demonstration. Additionally, some of these measures are 
being used to meet the contingency requirement should a nonattainment 
area not attain by its attainment date. The State cannot rely on the 
measures both for purposes of its attainment demonstration and for 
contingency measures as contingency measures must be measures in 
addition to those relied on to demonstrate attainment. Furthermore, in 
order for a control measure's benefit to be creditable towards 
attainment, the measures must be enforceable by the state and EPA and 
included in the federally enforceable SIP. EPA allows for a limited 
exception for voluntary measures, but New Jersey's additional measures, 
even if they were included as part of New Jersey's attainment 
demonstration, exceed the level of reductions that EPA would consider 
for voluntary measures. Therefore, these measures cannot be relied upon 
to make-up the difference between the modeling projection and 
attainment.
 EPA's Analysis of the Impact of the Most Recent Air Quality 
Data on Assertions of Attainment by 2009
    New Jersey did not have the 2007 air quality data when it submitted 
its ozone attainment SIP revision. The 2006 design value (based on 
2004-2006 data)

[[Page 21585]]

included air quality data from the cool summer of 2004 that had sharply 
lower levels of ozone. Ozone data from 2007 appears to be more in line 
with recent ozone seasons and not like the lower ozone concentrations 
recorded during the cooler summer of 2004. While ozone concentrations 
have decreased substantially since 2002 even when the 2004 data are 
excluded, the use of data including the summer of 2004 leads to an 
overly optimistic assessment of the 2004 to 2006 ozone concentrations 
used in New Jersey's evaluation of the trend toward attainment.
    EPA is concerned that the additional measures included in New 
Jersey's SIP submittal (but not relied on as part of the attainment 
demonstration by New Jersey) and other measures implemented between now 
and the 2009 ozone season will not be enough to reduce ozone from its 
2007 levels of 93 ppb in both of New Jersey's nonattainment areas to 
the 84 ppb ozone standard in 2009. Ozone levels have decreased in the 
past five years, but would need to decrease another fifty percent or 
more over the 2007 and 2008 ozone seasons to reach attainment in 2009.
    EPA estimates that the programs New Jersey says it will implement 
between 2007 and 2009 could reduce emissions by an additional 7 to 10 
percent of nitrogen oxides and 6 to 7 percent of volatile organic 
compound emissions. This is less than half of the reductions that 
occurred between 2002 and 2007. Also, improvements in ozone air quality 
in the past five years were also assisted by reduced regional emissions 
from EPA's NOX SIP Call and NOX Budget Trading Program as well as local 
emission reductions in the northeast corridor. These measures produced 
a significant decrease in ozone. However, the reductions from the NOX 
SIP Call and NOX Budget Trading Program are completed, so further 
reductions in transported ozone are likely to be minimal. This is 
confirmed by data in EPA's 2007 Air Quality Trends Report, which shows 
little decrease in regional reductions. Thus, it is not likely that 
ozone will continue to decrease at the rate observed from 2002 to 2007 
unless local emission reductions are expanded to amounts well beyond 
those in the present federally enforceable SIP.
    The preliminary data from the 2008 ozone season \4\ decreases EPA's 
confidence that New Jersey's nonattainment areas will be able to attain 
the ozone standard by 2009. Including 2008's preliminary data, the 
design values become 92 ppb in the Philadelphia-Wilmington-Atlantic 
City, PA-NJ-DE-MD area and 89 ppb in the New York-Northern New Jersey-
Long Island, NY-NJ-CT area. EPA is not encouraged that the additional 
measures being implemented by the states will bring ozone air quality 
to attainment by 2009.
---------------------------------------------------------------------------

    \4\ Region 2 is using the preliminary data from the Air Quality 
System or in some circumstances from the EPA-State real-time data 
reporting system. These data have not completed the states' quality 
assurance review. Certified 2008 ozone data were not available from 
the states at the time of this notice. EPA anticipates that the 
final data are not likely to change by more than one or two ppb from 
the preliminary data used in EPA's assessment. Changes of this 
amount would not change EPA's conclusions.
---------------------------------------------------------------------------

    Sections 172(a)(2)(C) and 181(a)(5) of the Act provide for the 
opportunity of up to two one-year extensions of the attainment date of 
2010. EPA can grant an extension if all of the monitors in a 
nonattainment area have a 4th highest daily 8-hour average in 2009 of 
84 ppb or less and the State has complied with all requirements and 
commitments pertaining to the area in the applicable implementation 
plan. The historical ozone monitoring trends for New Jersey's ozone 
nonattainment areas, supplemented with the preliminary fourth-highest 
concentrations in 2008, support the view that the area is unlikely to 
attain the ozone standard or even to have all monitors record a 4th-
highest 8-hour ozone of 84 ppb or less in 2009.
    In summary, recent ambient data also do not support the State's 
contention that the model is underpredicting ozone for 2009, because if 
this was the case, these areas would be closer to attainment based on 
2007 and 2008 data. Additionally, there does not appear to be enough 
evidence that additional emissions reductions over the next year will 
achieve attainment or be sufficient to meet the air quality requirement 
for an attainment date extension.
    Even including the preliminary data for 2008, air quality for the 
past few years does not show lower ozone concentrations consistent with 
attainment by the 2009 ozone season. These air quality data are similar 
to the photochemical grid modeling results obtained by following the 
methods in EPA's guidance, showing that adjustments to the modeling 
results are not needed. It is unlikely that New Jersey's nonattainment 
areas will attain the ozone standard by the attainment date.
c. Summary of Weight of Evidence Discussion
    With New Jersey's photochemical grid modeling results predicting a 
2009 projected design value well above the air quality health standard 
for New Jersey's nonattainment areas, the State has a heavy burden to 
provide a demonstration that these areas will attain the ozone standard 
by the attainment date. New Jersey needed to supply a substantial 
amount of evidence that the model is seriously overestimating future 
ozone concentrations. Modeling and air quality studies do not support 
an argument that the model overpredicts concentrations in 2009. 
Reductions anticipated to take effect between now and the beginning of 
the 2009 ozone season are also not enough to close this gap. New Jersey 
has suggested that it can adopt additional emission reduction 
strategies which will reduce ozone, but these reductions are not yet in 
place or are voluntary and mostly unquantifiable emission control 
plans. They are not likely to reduce ozone enough to reach the standard 
by 2009, even if they are implemented. EPA also cannot give much 
credence to additional measures that New Jersey says it will implement, 
but will not officially include as part of its attainment 
demonstration.
    Ozone air quality concentrations through 2007 are far above the 
level needed for attainment and it is unlikely that New Jersey and the 
other states impacting these two nonattainment areas will be able to 
implement enough additional emission controls to reach the standard by 
2009. This is supported by the lack of improvement shown in the 
preliminary air quality data from 2008. Also, the present air quality 
data does not support the hypothesis that the models are incorrect. If 
New Jersey's hypothesis was correct, present air quality concentrations 
would be closer to the standard if New Jersey's nonattainment areas 
were going to reach attainment in the upcoming 2009 ozone season, when 
attainment is due.
    The information and calculations provided by New Jersey's SIP 
emphasizes methods or data that support their claims that the 
nonattainment areas could attain the standard by the deadline. EPA's 
review of the ``weight of evidence'' analyses must evaluate a spectrum 
of likely alternative calculations, not only those that tend to show 
the area will attain the ozone standard. As noted before, the method 
recommended by EPA's guidance and other reasonable variations on EPA's 
methods predict the area will not attain the ozone standard by 2009. 
New Jersey has provided considerable information in support of its 
``weight of evidence.'' EPA has determined this information does not 
demonstrate that the proposed

[[Page 21586]]

adjustments to the photochemical grid model's attainment year forecast 
will give a more accurate answer than the calculations based on EPA's 
recommendations in its modeling guidance.
3. What Is EPA's Evaluation?
    The result of the photochemical grid modeling analysis using EPA's 
recommended methods predicts that New Jersey's nonattainment areas will 
not attain the standard by the attainment year of 2009. In response to 
this, New Jersey has offered a number of alternative methods for using 
the modeling information and additional control strategies that when 
taken together might plausibly demonstrate attainment.
    EPA has carefully evaluated the information provided by New Jersey 
and other information it deems relevant to help predict whether ozone 
air quality is likely to be in attainment of the ozone standard after 
control measures are in place by the 2009 ozone season. Taking all this 
information together, EPA finds the argument that attainment is likely 
in 2009 is unconvincing, and EPA does not find the possibility that 
attainment is plausible enough to satisfy the Clean Air Act requirement 
that State Implementation Plans provide for attainment of the NAAQS by 
the applicable attainment date.
    In general, EPA's conclusions can be summarized as follows:
     New Jersey's modeling, using an appropriate photochemical 
grid model and EPA's guidance methods, does not predict attainment in 
2009.
     New Jersey's attainment demonstration greatly relied on 
adjustments to the baseline assumptions which formed the basis of the 
photochemical modeling analysis. These adjustments to the base year 
starting value and the amount of reduction in ozone from 2002 to 2009 
differ from EPA's modeling guidance and, more importantly, are not 
sufficiently justified, and are biased toward a conclusion that New 
Jersey's nonattainment areas will attain the standard.
     New Jersey's attainment demonstration greatly relied on 
research which evaluated the impact of a widespread power blackout to 
develop an alternative approach to estimating anticipated air quality 
improvements from upwind power plants. While EPA believes that this 
approach provides some insight into the transport of ozone precursors, 
a critical review of all the research available to EPA and New Jersey 
leads EPA to disagree with the premise that the air quality modeling 
results should be adjusted using New Jersey's alternative approaches.
     New Jersey's attainment demonstration relies, in part, on 
emission reductions resulting from a commitment to adopt and implement 
a number of regulations prior to the start of the 2009 ozone season. 
Some of these were included in the photochemical grid modeling. These 
regulations would provide for additional reductions from boilers, 
refineries, power generation, consumer products and portable fuel 
containers. New Jersey's SIP submittal contains a schedule to adopt 
these regulations by May of 2008. While New Jersey has recently adopted 
two rule packages, the third has yet to be proposed. EPA must discount 
the effects of these relied-upon emission reductions since these 
emission reductions may not be achieved by the start of the 2009 ozone 
season.
     In order to insure attainment, New Jersey refers to 
additional measures that were not included in the original 
photochemical modeling analysis. New Jersey, however, has specifically 
not included these measures as part of its attainment demonstration. In 
order for a control measure's benefit to be creditable towards 
attainment, the measures must be enforceable by the State and be 
included in the federally enforceable SIP. As such, these additional 
measures cannot be relied upon to make-up the difference between what 
the modeling projects and what is needed for attainment.
     Some of New Jersey's additional measures can be 
quantified, others cannot. While EPA encourages New Jersey to continue 
to promote these worthwhile and important emission reduction programs, 
the amount of tangible air quality benefit is difficult to estimate 
with any degree of certainty. Even if these measures were adopted and 
implemented, the emissions reductions are not sufficient to meet the 
ozone standard in 2009 even by selecting the most favorable assumptions 
of the benefits associated with these control measures.
     New Jersey used measured ozone through 2006 to support its 
conclusion that the photochemical grid modeling was likely to be 
incorrect in its prediction that New Jersey's nonattainment areas would 
be far from attainment by 2009. However, when comparing more recent 
data from 2007 and preliminary data from 2008 with the results of the 
photochemical grid modeling using EPA's method, the photochemical grid 
model does not exhibit the magnitude of inaccuracies suggested in New 
Jersey's attainment demonstration.
     Regardless of the issues raised by New Jersey regarding 
the performance of EPA's recommended air quality models, the air 
quality measured during 2007 exceeded the ozone standard by a 
significant margin. Even a linear comparison of the percentage of 
additional emission reductions planned by the State with the needed 
improvement in air quality between 2007 and 2009 indicates it is 
unlikely that air quality will improve enough to meet the ozone 
standard by 2009. Preliminary air quality data from 2008 is 
sufficiently similar to 2007 air quality data to indicate that 
attainment by 2009 is now even less likely.
     New Jersey, along with the other states sharing its 
nonattainment areas, did not take sufficient steps as required by the 
section 182(j) of the Act to coordinate with each other on the 
implementation of SIP submittals applicable to the nonattainment areas. 
The SIPs submitted by each of the states which share New Jersey's 
nonattainment areas differ significantly in their level of emission 
controls, and, to a lesser extent, modeling demonstrations. In 
particular, for the New York-Northern New Jersey-Long Island, NY-NJ-CT 
nonattainment area, the three states did not agree on the basic issue 
of whether they will attain the ozone standard by the attainment date.
    For these reasons, EPA proposes to disapprove the attainment 
demonstration portion of New Jersey's SIP submittal. The photochemical 
grid modeling, performed according to EPA's guidelines, predicts New 
Jersey's nonattainment areas will fall short of attaining the ozone 
standard by a substantial margin. New Jersey provides extensive 
information to argue that attainment is plausible if the modeled 
results are adjusted and if additional measures (not included in the 
modeling or the attainment demonstration) will be in place and are 
effective. New Jersey's demonstration does not provide the level of 
compelling evidence needed for EPA to have confidence that New Jersey's 
nonattainment areas will actually attain the NAAQS by the June 2010 
deadline.

V. What Are the Consequences of a Disapproved SIP?

    This section explains the consequences of a disapproval of a SIP 
submittal under the Act. The Act provides for the imposition of 
sanctions and the promulgation of a federal implementation plan (FIP) 
if a state fails to submit a plan revision that corrects the 
deficiencies identified by EPA in its disapproval.

[[Page 21587]]

A. What Are the Act's Provisions for Sanctions?

    If EPA disapproves a required SIP or component of a SIP, such as 
the Attainment Demonstration SIP, section 179(a) provides for the 
imposition of sanctions unless the deficiency is corrected within 18 
months of the final rulemaking of disapproval. The first sanction would 
apply 18 months after EPA disapproves the SIP if a state fails to make 
the required submittal which EPA proposes to fully or conditionally 
approve within that time. Under EPA's sanctions regulations, 40 CFR 
52.31, the first sanction would be 2:1 offsets for sources subject to 
the new source review requirements under section 173 of the Act. If a 
state has still failed to submit a SIP revision for which EPA proposes 
full or conditional approval 6 months after the first sanction is 
imposed, the second sanction will apply. The second sanction is a 
limitation on the receipt of Federal highway funds. EPA also has 
authority under section 110(m) to sanction a broader area, but is not 
proposing to take such action in today's rulemaking.

B. What Federal Implementation Plan Provisions Apply if a State Fails 
To Submit an Approvable Plan?

    In addition to sanctions, if EPA finds that a state failed to 
submit the required SIP revision or disapproves the required SIP 
revision, or a portion thereof, EPA must promulgate a FIP no later than 
2 years from the date of the finding if the deficiency has not been 
corrected within that time period.

C. What Are the Ramifications Regarding Conformity?

    One consequence of EPA's disapproval of a control strategy SIP is a 
conformity freeze whereby affected MPOs cannot make new conformity 
determinations on long range transportation plans and transportation 
improvement programs (TIPs). If we finalize the disapproval of the 
attainment demonstration SIP, a conformity freeze will be in place as 
of the effective date of the disapproval without a protective finding 
of the budget. (40 CFR 93.120(a)(2)) This means that no transportation 
plan, TIP, or project not in the first four years of the currently 
conforming transportation plan and TIP or that meet the requirements of 
40 CFR 93.104(f) during a 12-month lapse grace period \5\ may be found 
to conform until another attainment demonstration SIP is submitted and 
the motor vehicle emissions budgets are found adequate or the 
attainment demonstration is approved. In addition, if the highway 
funding sanction is implemented, the conformity status of the 
transportation plan and TIP will lapse on the date of implementation of 
the highway sanctions. During a conformity lapse, only projects that 
are exempt from transportation conformity (e.g., road resurfacing, 
safety projects, reconstruction of bridges without adding travel lanes, 
bicycle and pedestrian facilities, etc.), transportation control 
measures that are in the approved SIP and project phases that were 
approved prior to the start of the lapse can proceed during the lapse. 
No new project-level approvals or conformity determinations can be made 
and no new transportation plan or TIP may be found to conform until 
another attainment demonstration SIP is submitted and the motor vehicle 
emissions budget is found adequate.
---------------------------------------------------------------------------

    \5\ Additional information on the implementation of the lapse 
grace period can be found in the final transportation conformity 
rule published on January 24, 2008. (73 FR 4423-4425)
---------------------------------------------------------------------------

VI. What Are EPA's Conclusions?

    EPA is proposing to disapprove New Jersey's attainment 
demonstrations for the New York-Northern New Jersey-Long Island, NY-NJ-
CT and the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour 
ozone moderate nonattainment areas because New Jersey's demonstration 
does not provide the level of compelling evidence for EPA to have 
confidence that New Jersey's nonattainment areas will attain the NAAQS 
by the June 2010 deadline.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal

[[Page 21588]]

governments in the aggregate, or to the private sector. This action 
proposes to disapprove pre-existing requirements under State or local 
law, and imposes no new requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This proposed SIP disapproval under section 110 
and subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new regulations but simply disapproves certain State 
requirements for inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that VCS this action is not subject to 
requirements of Section 12(d) of NTTAA because application of those 
requirements would be inconsistent with the Clean Air Act.

 J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
disapprove certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary authority to address, as 
appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898.

List of Subjects in 40 CFR Part 52

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

    Dated: April 28, 2009.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. E9-10663 Filed 5-7-09; 8:45 am]

BILLING CODE 6560-50-P
