[Federal Register Volume 63, Number 234 (Monday, December 7, 1998)]
[Rules and Regulations]
[Pages 67405-67407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32421]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-7162a; A-1-FRL-6196-1]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; 15 Percent Rate-of-Progress and Contingency Plans; Vapor 
Recovery Controls for Gasoline Distribution and Dispensing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of New Hampshire. These revisions establish 15 
percent rate-of-progress (ROP) and contingency plans for ozone 
nonattainment areas in the State. The revisions also include 
regulations adopted by New Hampshire to control volatile organic 
compound (VOC) emissions from gasoline dispensing facilities and from 
gasoline tank trucks. The intended effect of this action is to approve 
these plans and regulations as revisions to the State's SIP. This 
action is being taken in accordance with the Clean Air Act.

EFFECTIVE DATE: This rule is effective on January 6, 1999.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 11th floor, Boston, 
MA; and the Air Resources Division, Department of Environmental 
Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-
2033.

FOR FURTHER INFORMATION CONTACT: Robert McConnell, (617) 565-9266.

SUPPLEMENTARY INFORMATION: Section 182(b)(1) of the Act requires ozone 
nonattainment areas classified as moderate or above to develop plans to 
reduce volatile organic compounds (VOC) emissions by 15 percent from 
1990 baseline levels. There are two serious ozone nonattainment areas 
in New Hampshire. The areas are referred to as the Portsmouth-Dover-
Rochester area (the ``Por-Dov-Roc area''), and the New Hampshire 
portion of the Boston-Lawrence-Worcester area (the ``Bos-Law-Wor area). 
New Hampshire is, therefore, subject to the 15 percent ROP requirement.

I. Background

    On October 27, 1997 (62 FR 55544), EPA published a Notice of 
Proposed Rulemaking (NPR) for the State of New Hampshire. The NPR 
proposed approval of the State's 15 percent ROP and contingency plans. 
The formal SIP revision was submitted by New Hampshire on August 29, 
1996.
    The proposed approval of New Hampshire's 15 percent ROP and 
contingency plans which was published in the October 27, 1997 Federal 
Register (62 FR 55544), stated that EPA accepted the level of emission 
reductions projected to occur from the State's VOC RACT rules, Stage I 
rule, and Stage II rule. EPA's proposed rulemaking noted that although 
the State had submitted these rules to EPA, they had not been approved 
by EPA as of October 27, 1997. On March 10, 1998 (63 FR 11600), EPA 
approved the New Hampshire VOC RACT rules into the State's SIP. On 
September 21, 1998 (63 FR 50180), EPA proposed approval of New 
Hampshire's Part Env-A 1205 ``Volatile Organic Compounds (VOC): 
Gasoline Dispensing Facilities and Gasoline Tank Trucks.'' This 
regulation contains the State's Stage I and Stage II vapor recovery 
control requirements. Today's action also includes a final approval of 
New Hampshire's Part Env-A 1205.

Transportation Conformity Budgets

    Under EPA's transportation conformity rule the 15 percent plans are 
a control strategy SIP. The plans for New Hampshire establish VOC 
emission budgets for on-road mobile sources within the respective 
nonattainment areas. These plans do not establish NOX 
emission budgets for on-road mobile sources. However, New Hampshire 
submitted an ozone attainment demonstration SIP revision to EPA on June 
30, 1998. The ozone attainment demonstration establishes the VOC and 
NOX emission budgets for 2003 shown in Table 1.

       Table 1.--2003 Emission Budgets for On-Road Mobile Sources
------------------------------------------------------------------------
                                                 VOC Budget   NOX Budget
              Nonattainment area                  tons per     tons per
                                                 summer day   summer day
------------------------------------------------------------------------
NH portion of Bos-Law-Wor area................        10.72        21.37
Por-Dov-Roc area..............................         6.97        13.68
------------------------------------------------------------------------

    By letter dated August 19, 1998, EPA informed New Hampshire that 
the motor vehicle budgets contained within the State's ozone attainment 
demonstration were adequate for conformity purposes. EPA believes that 
the VOC and NOX budgets established by the New Hampshire 
ozone attainment demonstration are currently the controlling budgets 
for conformity determinations for 2003 and later years. The budgets in 
the attainment demonstration specifically address anticipated mobile 
source emissions in 2003, whereas the 15 percent plan establishes a 
budget for 1996. The time period for the budget in the 15 percent plans 
has passed. Additionally, the attainment demonstration establishes a 
more stringent budget.
    EPA's rationale for granting approval to these plans, and the 
details of New Hampshire's submittal are contained in the NPR and the 
accompanying technical support document and will not be restated here.

II. Public Comments

    No comments were received on the October 27, 1997 NPR regarding 
EPA's proposed action on the New Hampshire 15 percent ROP and 
contingency plans, or on the September 21, 1998 NPR regarding the 
State's Gasoline Dispensing Facilities and Gasoline Tank Trucks 
regulation.

III. Final Action

    EPA is approving the New Hampshire 15 percent ROP and contingency 
plans as revisions to the State's SIP. EPA is also approving New 
Hampshire's Part Env-A 1205 ``Volatile Organic Compounds (VOC): 
Gasoline Dispensing Facilities and Gasoline Tank Trucks'' into the New 
Hampshire SIP.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future

[[Page 67406]]

request for revision to any State implementation plan. Each request for 
revision to the State implementation plan shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.

IV. Administrative Requirements

A. Executive Orders 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is not an 
``economically significant'' action under Executive Order 12866.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility

    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. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under Sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves 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.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 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

[[Page 67407]]

the Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

H. Petitions for Judicial Review

    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 February 5, 1999. 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).) EPA encourages 
interested parties to comment in response to the proposed rule rather 
than petition for judicial review, unless the objection arises after 
the comment period allowed for in the proposal.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of New Hampshire was approved by the Director of 
the Federal Register on July 1, 1982.

    Dated: November 19, 1998.
John P. DeVillars,
Regional Administrator, Region I.

    Part 52 of 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 EE--New Hampshire

    2. Section 52.1520 is amended by adding paragraphs (c)(53) and 
(c)(58) to read as follows:


Sec. 52.1520  Identification of plan.

* * * * *
    (c) * * *
    (53) Revisions to the State Implementation Plan submitted by the 
New Hampshire Air Resources Division on August 29, 1996. This revision 
is for the purpose of satisfying the rate-of-progress requirement of 
section 182(b) and the contingency measure requirement of section 
172(c)(9) of the Clean Air Act, for the Portsmouth-Dover-Rochester 
serious ozone nonattainment area, and the New Hampshire portion of the 
Boston-Lawrence-Worcester serious ozone nonattainment area.
    (i) Incorporation by reference.
    (A) Letter from the New Hampshire Air Resources Division dated 
August 29, 1996 submitting a revision to the New Hampshire State 
Implementation Plan.
* * * * *
    (58) Revisions to the State Implementation Plan submitted by the 
New Hampshire Air Resources Division on November 25, 1992.
    (i) Incorporation by reference.
    (A) Letter from the New Hampshire Air Resources Division dated 
November 24, 1992 submitting a revision to the New Hampshire State 
Implementation Plan.
    (B) Part Env-A 1205 ``Volatile Organic Compounds (VOC): Gasoline 
Dispensing Facilities and Gasoline Tank Trucks,'' effective in the 
State of New Hampshire on August 17, 1992.
    (ii) Additional materials.
    (A) New Hampshire Department of Environmental Services ``Stage II 
Equivalency Demonstration,'' dated November 1992.
    (B) Nonregulatory portions of the submittal.

[FR Doc. 98-32421 Filed 12-4-98; 8:45 am]
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