[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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