[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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