[Federal Register Volume 64, Number 188 (Wednesday, September 29, 1999)]
[Rules and Regulations]
[Pages 52434-52438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25156]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-038-7165a; A-1-FRL-6445-4]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Stage II Comparability and Clean Fuel Fleets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving two State Implementation Plan (SIP) revisions 
that the New Hampshire Department of Environmental Services (DES) 
submitted to EPA: New Hampshire's Stage II comparability demonstration 
submitted on July 9, 1998, and Clean Fuel Fleets opt out submitted on 
June 7, 1994. The intended effect of this action is to approve both 
submittals into the New Hampshire SIP. This action is being taken in 
accordance with the Clean Air Act (CAA).

DATES: This direct final rule is effective on November 29, 1999 without 
further notice, unless EPA receives adverse comment by October 29, 
1999. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection (mail code CAA), U.S. Environmental 
Protection Agency, Region I, One Congress Street, Suite 1100, Boston, 
MA 02114-2023. Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office Ecosystem Protection, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 11th

[[Page 52435]]

floor, Boston, MA and at the Air Resources Division, Department of 
Environmental Services, 64 North Main Street, Caller Box 2033, Concord, 
NH 03302-2033.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 918-1047, for 
Stage II Comparability and Matthew B. Cairns, (617) 918-1667, for Clean 
Fuel Fleets.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

What action is EPA taking?
What are the CAA requirements for Stage II comparability?
What measures are included in New Hampshire's Stage II comparability 
SIP?
What is the relationship between New Hampshire's previously approved 
Stage II serious area SIP and its Stage II comparability SIP?
What is New Hampshire's Stage II comparability reduction target?
How is New Hampshire achieving its reduction target?
What are the Clean Fuel Fleets requirements?
How is New Hampshire meeting the Clean Fuel Fleets requirements?
Why is EPA approving New Hampshire's Stage II comparability and 
Clean Fuel Fleets opt out SIP revisions?
What is the process for EPA's approval of these SIP revisions?
Administrative Requirements

What Action Is EPA taking?

    The Environmental Protection Agency is approving the Stage II 
comparability demonstration the New Hampshire DES submitted on July 9, 
1998 and the Clean Fuel Fleets opt out submitted on June 7, 1994. EPA 
is approving these submittals into the New Hampshire SIP because they 
meet the requirements of section 184(b)(2) and section 182(c)(4), 
respectively, of the CAA. 42 U.S.C. 7401, 7511c(b)(2), and 7511a(c)(4).

What Are the CAA Requirements for Stage II Comparability?

    Section 184(b)(2) of the CAA requires states in the Ozone Transport 
Region (OTR) to adopt Stage II or comparable measures within one year 
of EPA completion of a study identifying control measures capable of 
achieving emissions reductions comparable to the reductions achievable 
through section 182(b)(3) Stage II vapor recovery controls. EPA 
completed its study ``Stage II Comparability Study for the Northeast 
Ozone Transport Region'' (EPA-452/R-94-011) on January 13, 1995.
    Stage II vapor recovery controls reduce volatile organic compound 
(VOC) emissions that occur during the refueling of motor vehicles. VOC 
emissions contribute to the formation of ground-level ozone (the main 
component of smog).

What Measures Are Included in New Hampshire's Stage II 
Comparability SIP?

    To demonstrate that it has met the CAA Stage II comparability 
requirement, New Hampshire relies on VOC reductions achieved from 
implementing its Stage II vapor recovery program and its reformulated 
gasoline (RFG) program.

What Is the Relationship Between New Hampshire's Previously 
Approved Stage II Serious Area SIP and its Stage II Comparability 
SIP?

    By meeting the CAA Stage II serious area requirements, the state 
has also met the CAA Stage II comparability requirements for the two 
areas in New Hampshire classified as serious ozone nonattainment 
pursuant to the CAA Amendments of 1990. New Hampshire's Stage II 
comparability demonstration, therefore, focuses on demonstrating Stage 
II comparability in the rest of the state, specifically in the 
Manchester area (originally classified as marginal pursuant to the CAA 
Amendments of 1990) and in the counties of Belknap, Carroll, Cheshire, 
Coos, Grafton, and Sullivan.
    Under the CAA section 182(b)(3) Stage II vapor recovery requirement 
for serious ozone nonattainment areas, New Hampshire adopted a Stage II 
program in Hillsborough, Merrimack, Rockingham, and Strafford counties. 
At the time New Hampshire adopted its Stage II program, these four 
counties included the state's one marginal and two serious ozone 
nonattainment areas. On December 7, 1998 (63 FR 67405), EPA approved 
New Hampshire's Stage II program pursuant to the CAA section 182(b)(3) 
Stage II requirement for serious ozone nonattainment areas.

What Is New Hampshire's Stage II Comparability Reduction Target?

    The State has calculated that it must achieve a 9,551 pounds per 
day (ppd) reduction in VOC emissions to meet the Stage II comparability 
requirement (not counting the Stage II reductions achieved in the two 
serious areas). In its Stage II comparability SIP, New Hampshire refers 
to this 9,551 ppd reduction as the Stage II comparability reduction 
target.
    As noted in EPA's Stage II comparability guidance, states should 
make comparability determinations for the year 1999. New Hampshire's 
Stage II comparability demonstration states that uncontrolled 1999 
refueling emissions in the Manchester marginal area and in the other 
six counties would be 6,529 ppd and 6,148 ppd, respectively. New 
Hampshire DES estimates that the implementation of a CAA required Stage 
II program in New Hampshire would achieve a 75.34 percent overall 
reduction in refueling emissions.1 Applying this 75.34 
percent reduction to the uncontrolled refueling emissions results in a 
reduction target of 9,551 ppd.
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    \1\ EPA's Stage II Comparability guidance estimates that the 
implementation of a CAA required Stage II program results in a 77 
percent overall reduction in refueling emissions. This estimate is 
based in part on a nationwide average penetration rate of 90 
percent, based on a study of metropolitan area service station size 
distributions. As noted in EPA's guidance, size distribution varies 
from area to area. New Hampshire's estimated 75.34 percent overall 
reduction is based in part on an 84 percent penetration rate, based 
on the service station size distribution found in New Hampshire.
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How Is New Hampshire Achieving Its Reduction Target?

    In its Stage II comparability demonstration, New Hampshire commits 
to reserving all of the available emission reductions from its Stage II 
program in the marginal nonattainment area (4,145 ppd) and a portion of 
the available emission reductions from its reformulated gasoline 
program (5,406 ppd out of 20,398 ppd) to meet the 9,551 ppd Stage II 
comparability target.
    New Hampshire has reductions available from its Stage II program in 
the Manchester marginal nonattainment area that the State may use to 
meet the Stage II comparability requirement. The State estimates that 
in 1999, Stage II controls will achieve a 4,919 ppd reduction in 
emissions in this area. The State, however, previously reserved 774 ppd 
of the Stage II marginal area reductions as an additional environmental 
benefit as part of its Stage II serious area program approval. See 63 
FR 50180 (September 21, 1998). Therefore, 4,145 ppd of the marginal 
area Stage II reductions are available to meet the Stage II 
comparability requirement.
    The state also has emission reductions available from implementing 
its reformulated gasoline (RFG) program that may be used to meet the 
Stage II comparability requirement. New Hampshire is implementing RFG 
in the counties of Hillsborough, Merrimack, Rockingham, and Strafford. 
RFG reductions in this area can count toward determining Stage II 
comparability in the Manchester marginal area and in the other six 
counties, since EPA's Stage II comparability guidance allows States to 
determine comparability on a statewide basis. New Hampshire estimates 
that RFG in the counties of Hillsborough, Merrimack, Rockingham, and 
Strafford achieves an emission reduction of

[[Page 52436]]

20,529 ppd in 1999. New Hampshire, however, previously reserved 131 ppd 
of the RFG reductions as part of its June 7, 1994 Clean Fuel Fleet SIP 
submittal. Therefore, 20,398 ppd of the total RFG reductions are 
available for purposes of meeting the Stage II comparability 
requirement.

What Are the Clean Fuel Fleets Requirements?

    Section 246 of the CAA requires that serious nonattainment areas 
with populations of more than 250,000 adopt a Clean Fuel Fleets program 
(CFFP). The New Hampshire portion of the Boston-Lawrence-Worcester 
nonattainment area (parts of Rockingham and Hillsborough Counties, 
otherwise known as the Southern nonattainment area) meets that 
criterion. Pursuant to the CAA of 1990, the Southern nonattainment area 
was classified serious nonattainment for ozone. See 56 FR 56694 
(November 6, 1991).
    Section 182 (c)(4)(A) of the CAA requires States with serious ozone 
nonattainment areas to submit for EPA approval a SIP revision that 
includes measures to implement the CFFP. Under this program, a certain 
specified percentage of vehicles purchased by fleet operators for 
covered fleets must meet emission standards that are more stringent 
than those that apply to conventional vehicles.
    Alternatively, section 182(c)(4)(B) of the CAA allows States to 
``opt out'' of the CFFP by submitting a program or programs that will 
result in at least equivalent long term reductions in ozone-producing 
and toxic air emissions in the appropriate nonattainment area as 
achieved by the CFFP. The CAA directs EPA to approve a substitute 
program if it achieves long term reductions in emissions of ozone 
producing and toxic air pollutants equivalent to those that would have 
been achieved by the CFFP or the portion of the CFFP for which the 
measure is to be substituted.

How Is New Hampshire Meeting the Clean Fuel Fleets Requirements?

    New Hampshire has decided to opt out of the CFFP. New Hampshire has 
emission reductions available from the implementation of its 
reformulated gasoline (RFG) program that may be used to meet substitute 
CFFP requirement. The implementation of RFG in New Hampshire is 
estimated to achieve an emission reduction of 7662 ppd in 1999 in the 
Southern nonattainment area. New Hampshire estimates a net reduction of 
131 ppd of VOCs would result with a CFFP in the Southern nonattainment 
area. New Hampshire, however, previously reserved 5406 ppd of the RFG 
reductions in the Four County Area (which includes, but is larger than 
the Southern nonattainment area) as part of its July 9, 1998, Stage II 
comparability demonstration SIP submittal. Therefore, even if we 
conservatively assume that all of the Stage II-related reductions are 
from the Southern nonattainment area, and reduce the 7662 ppd RFG 
reductions by 5406 ppd, 2216 ppd of these RFG reductions are still 
available for purposes of meeting the substitute CFFP requirement.
    EPA generally agrees with New Hampshire's assumption that 
reductions in toxic air emissions from the CFFP and RFG program are 
roughly proportional to the reductions in VOCs; any substitute plan 
which reduces VOCs will also reduce toxic air emissions in 
approximately the same proportion. New Hampshire has demonstrated that 
toxic air emissions reductions projected to be achieved by the CFFP are 
insignificant in the Southern nonattainment area. Therefore, New 
Hampshire's substitute plan will meet substitute CFFP requirements for 
air toxics.

Why Is EPA Approving New Hampshire's Stage II Comparability and 
Clean Fuel Fleets Opt Out SIP Revisions?

    EPA is approving New Hampshire's Stage II comparability SIP 
revision because the State has successfully demonstrated that it has 
met its Stage II comparability reduction target through implementing 
its Stage II program and its reformulated gasoline program. New 
Hampshire's emission reduction calculations follow EPA guidance. 
Further information on New Hampshire's Stage II comparability SIP 
revision and EPA's evaluation of this SIP revision can be found in a 
memorandum dated May 21, 1999, entitled ``Technical Support Document--
NH Stage II Comparability.'' Copies of this document are available, 
upon request, from the EPA Regional Office listed in the ADDRESSES 
section of this document.
    EPA is approving New Hampshire's Clean Fuel Fleets opt out SIP 
revision because the State has successfully demonstrated that it has 
achieved long term reductions in emissions of ozone producing and toxic 
air pollutants equivalent to those that would have been achieved by the 
CFFP through its reformulated gasoline program. New Hampshire's 
emission reduction calculations follow EPA guidance. Further 
information on New Hampshire's Clean Fuel Fleets opt out SIP revision 
and EPA's evaluation of this SIP revision can be found in a memorandum 
dated May 21, 1999, entitled ``Technical Support Document--Clean Fuel 
Fleets, New Hampshire.'' Copies of this document are available, upon 
request, from the EPA Regional Office listed in the ADDRESSES section 
of this document.

What Is the Process for EPA's Approval of These SIP Revisions?

    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve these SIP revisions should 
relevant adverse comments be filed. This action will be effective 
November 29, 1999 without further notice unless the Agency receives 
relevant adverse comments by October 29, 1999
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. Any parties 
interested in commenting on the this action should do so at this time. 
If no such comments are received, the public is advised that this rule 
will be effective on November 29, 1999 and no further action will be 
taken on the proposed rule.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future 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.

Administrative Requirements

A. Executive Order 12866

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

B. Executive Orders on Federalism

    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

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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.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)), 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism 
still applies. This rule will not have a substantial direct effect on 
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 12612. 
The rule affects only one State, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

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 does not involve 
decisions intended to mitigate environmental health or safety risks.

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. If the mandate is unfunded, 
EPA must 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, 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. 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 the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA,

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EPA must consider and use ``voluntary consensus standards'' (VCS) if 
available and applicable when developing programs and policies unless 
doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. 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 November 29, 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, 
Ozone.

    Dated: September 17, 1999.
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)(61) and (62) 
to read as follows:


Sec. 52.1520  Identification of plan.

* * * * * *
    (c) * * *
    (61) Revisions to the State Implementation Plan submitted by the 
New Hampshire Department of Environmental Services on July 9, 1998.
    (i) Additional materials.
    (A) ``New Hampshire Stage II Comparability Analysis,'' prepared by 
the New Hampshire Department of Environmental Services, dated July 1, 
1998.
    (62) Revisions to the State Implementation Plan submitted by the 
New Hampshire Department of Environmental Services on June 7, 1994.
    (i) Additional materials.
    (A) Letter from the New Hampshire Department of Environmental 
Services dated June 7, 1994 submitting a revision to the New Hampshire 
State Implementation Plan.
    (B) ``Clean Fuel Fleet Equivalency Demonstration,'' prepared by the 
New Hampshire Department of Environmental Services, dated May, 1994.
[FR Doc. 99-25156 Filed 9-28-99; 8:45 am]
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