[Federal Register Volume 67, Number 141 (Tuesday, July 23, 2002)]
[Rules and Regulations]
[Pages 48033-48036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18396]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-047-7173a; A-1-FRL-7243-2]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; VOC RACT Order and Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of New Hampshire. These revisions establish 
requirements for sources of volatile organic compounds (VOC). The 
intended effect of this action is to approve a VOC regulation for the 
New Hampshire portion of the eastern Massachusetts serious ozone 
nonattainment area and to approve a VOC order for Anheuser-Busch into 
the New Hampshire SIP. EPA is taking this action in accordance with the 
Clean Air Act.

[[Page 48034]]


DATES: This direct final rule will be effective September 23, 2002, 
unless EPA receives relevant adverse comments by August 22, 2002. If 
EPA receives relevant adverse comments, we will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, EPA New England Regional Office, 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, EPA New England 
Regional Office, One Congress Street, 11th floor, Boston, MA; Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, Room M-1500, 401 M Street, (Mail Code 6102), S.W., Washington, 
D.C.; and Air Resources Division, Department of Environmental Services, 
6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT: Anne Arnold, (617) 918-1047.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

    What Action Is EPA Taking?
    What Are the Relevant Clean Air Act Requirements?
    What Are the Items New Hampshire Submitted?
    Why Is EPA Approving New Hampshire's Submittals?
    What Is the Process for EPA to Approve These SIP Revisions?

What Action Is EPA Taking?

    EPA is approving New Hampshire's VOC reasonably available control 
technology (RACT) order for Anheuser-Busch. EPA is also approving New 
Hampshire's Env-A 1204.27 VOC RACT rule for the New Hampshire portion 
of the Boston-Worcester-Lawrence (Eastern Massachusetts) serious ozone 
nonattainment area.

What Are the Relevant Clean Air Act Requirements?

    Sections 182(b)(2) and 184(b) of the Clean Air Act (CAA) contain 
the requirements relevant to today's action. 42 U.S.C. 7511a(b)(2) and 
7511c. Section 182(b)(2) requires states to adopt RACT rules for all 
areas designated nonattainment for ozone and classified as moderate or 
above. There are three parts to the section 182(b)(2) RACT requirement: 
(1) RACT for sources covered by an existing Control Techniques 
Guideline (CTG)--i.e., a CTG issued prior to the enactment of the 1990 
amendments to the CAA; (2) RACT for sources covered by a post-enactment 
CTG; and (3) all major sources not covered by a CTG, i.e., non-CTG 
sources.
    Pursuant to the CAA Amendments of 1990, portions of New Hampshire 
were classified as marginal and serious nonattainment areas for ozone. 
See 56 FR 56694 (November 6, 1991). These serious areas were, thus, 
subject to the section 182(b)(2) RACT requirement.
    In addition, New Hampshire is located in the Northeast Ozone 
Transport Region (OTR). The entire state is, therefore, subject to 
section 184(b) of the CAA. Section 184(b) requires that RACT be 
implemented in the entire state for all VOC sources covered by a CTG 
issued before or after the enactment of the CAA Amendments of 1990 and 
for all major VOC sources (defined as 50 tons per year for sources in 
the OTR).
    Today's action specifically deals with the CAA requirement in 
sections 182(b)(2)(C) and 184(b)(2) to implement RACT at all major VOC 
sources not already subject to a CTG.

What Are the Items New Hampshire Submitted?

    New Hampshire submitted a RACT regulation for major VOC sources, a 
letter regarding New Filcas of America, and an order for Anheuser-
Busch.
    New Hampshire's VOC RACT regulation, Env-A 1204.27, ``Applicability 
Criteria and Compliance Options for Miscellaneous and Multicategory 
Stationary VOC Sources,'' requires RACT for non-CTG sources that emit 
50 tons of VOC or more per year. Env-A 1204.27(d) establishes five 
options for measuring and enforcing RACT. Options 1 through 4 identify 
specific levels of emissions or emissions reductions that constitute 
RACT. Control option 5 describes a process by which RACT can be 
defined, but does not specifically define RACT as required by the CAA. 
EPA cannot approve this portion of the rule as meeting sections 
182(b)(2) and 184(b)(2) until New Hampshire defines, and EPA approves, 
RACT for all of those sources which comply with the regulation through 
control option 5. Therefore, EPA previously granted a limited approval 
of Env-A 1204.27. See 63 FR 11600 (March 10, 1998). EPA's rulemaking 
noted that to receive full approval, New Hampshire needed to define 
RACT for the following sources: Harvard Industries, New Filcas of 
America, Sturm Ruger, and Anheuser-Busch.
    New Hampshire's letter regarding New Filcas of America states that 
the company's Nashua facility has been shut down since January of 1998 
and the company has moved its operations to North Carolina. The letter 
also states that an inspection by the New Hampshire Department of 
Environmental Services (DES) staff was conducted on August 30, 2001 to 
verify that the facility has been shut down. Therefore, DES does not 
need to establish VOC RACT for this facility.
    The order issued to Anheuser-Busch requires the implementation of 
various process loss reduction activities including the development of 
information management systems, enhanced training for equipment 
operators, and integration of state-of-the-art packaging equipment 
improvements to reduce malt beverage production emissions.
    As noted above, New Hampshire has adequately addressed Anheuser-
Busch and New Filcas of America. Thus, DES has addressed RACT for all 
of the applicable sources in the New Hampshire portion of the eastern 
Massachusetts serious ozone nonattainment area. The state has not yet, 
however, submitted VOC RACT determinations for Harvard Industries and 
Sturm Ruger. New Hampshire will need to address these facilities in 
order for Env-A 1204.27 to be fully approvable statewide.

Why Is EPA Approving New Hampshire's Submittals?

    EPA has evaluated the Anheuser-Busch order and has found that it is 
generally consistent with EPA guidance. EPA agrees with DES's 
assessment that add-on pollution controls are not economically 
reasonable to control the ethanol emissions from the beer production 
and bottling processes at the Anheuser-Busch facility. Therefore, DES's 
order requires Anheuser-Busch to use enumerated state-of-the-art 
packaging equipment, or replacement equipment that improves on the 
performance of the existing equipment, which will minimize product 
losses and VOC emissions. Therefore, EPA is approving this order as 
RACT. EPA has also evaluated New Hampshire's Env-A 1204.27 and has 
found that this regulation is generally consistent with EPA guidance, 
with the exception of the control option 5 issue discussed above. Since 
New Hampshire has, however, adequately addressed all of the non-CTG 
major VOC sources in the New Hampshire portion of the eastern 
Massachusetts serious ozone nonattainment area to which this option 
applies, EPA is approving Env-A

[[Page 48035]]

1204.27 as meeting the CAA requirements for this area.
    The specific requirements of the Anheuser-Busch order and New 
Hampshire's Env-A 1204.27 regulation and EPA's evaluation of these 
requirements are detailed in a memorandum dated May 20, 2002, entitled 
``Technical Support Document--New Hampshire--VOC RACT Order and 
Regulation'' (TSD). Copies of the TSD are available, upon request, from 
the EPA Regional Office listed in the ADDRESSES section of this 
document.

What Is the Process for EPA To Approve These SIP Revisions?

    The 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 the SIP revision should EPA 
receive relevant adverse comments. This action will be effective 
September 23, 2002 without further notice unless the EPA receives 
relevant adverse comments by August 22, 2002.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. EPA will then address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If EPA receives no such comments, the public 
is advised that this rule will be effective on September 23, 2002 and 
EPA will take no further action on the proposed rule. Please note that 
if EPA receives adverse comment on an amendment, paragraph, or section 
of this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

II. Final Action

    EPA is approving New Hampshire's VOC RACT order for Anheuser-Busch. 
EPA is also approving New Hampshire's Env-A 1204.27 VOC RACT rule for 
the New Hampshire portion of the eastern Massachusetts serious ozone 
nonattainment area.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 September 23, 2002. 
Interested parties should 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. 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Volatile organic compounds.

    Dated: June 21, 2002.
Ira Leighton,
Acting Regional Administrator, EPA New England.


    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:


[[Page 48036]]


    Authority: 42 U.S.C. 7401 et seq.

Subpart EE--New Hampshire

    2. Section 52.1520 is amended by adding paragraph (c)(68) to read 
as follows:


Sec. 52.1520  Identification of plan.

* * * * *
    (c) * * *
    (68) Revisions to the State Implementation Plan submitted by the 
New Hampshire Air Resources Division on June 28, 1996 and April 15, 
2002.
    (i) Incorporation by reference.
    (A) Order ARD-00-001 issued by the New Hampshire DES to Anheuser-
Busch Incorporated, effective April 15, 2002.
    (B) Env-A 1204.27, ``Applicability Criteria and Compliance Options 
for Miscellaneous and Multi-category Stationary VOC Sources,'' 
effective August 21, 1995, is granted full approval for the New 
Hampshire portion of the eastern Massachusetts serious ozone 
nonattainment area.
    (ii) Additional materials.
    (A) Letter from the DES, dated April 15, 2002, submitting revised 
Anheuser-Busch order to EPA as a SIP revision and withdrawing previous 
submittal for this facility dated June 20, 2000.
    (B) Letter from the DES, dated March 22, 2002, containing 
information on New Filcas of America.

    3. In Sec. 52.1525, Table 52.1525 is amended by adding an entry for 
``Env-A 1204.27'' in the State citation chapter column immediately 
following the entry for ``CH air 1204, Part Env-A 1204 (except 
1204.9)'' and by adding an entry for ``Order ARD-00-001'' in the same 
column immediately following the entry for ``Order ARD 98-001'' to read 
as follows:


Sec. 52.1525  EPA--approved  New Hampshire state regulations

* * * * *

                                           Table 52.1525.--EPA--Approved Rules and Regulations--New Hampshire
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      State  citation      Date  adopted  by    Date approved by    Federal Register
          Title/subject                   chapter                State                 EPA              citation          52.1520         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Applicability Criteria and        Env-A 1204.27           8/21/95............  July 23, 2002.....  [Insert FR          (c)(68)        Rule fully
 Compliance Options for                                                                             citation from                      approved for the
 Miscellaneous and Multi-                                                                           published date].                   New Hampshire
 category Stationary VOC Sources.                                                                                                      portion of the
                                                                                                                                       eastern
                                                                                                                                       Massachusetts
                                                                                                                                       serious ozone
                                                                                                                                       nonattainment
                                                                                                                                       area.
 
                   *                  *                  *                  *                  *                  *                  *
Source Specific Order...........  Order ARD-00-001        4/15/02............  July 23, 2002.....  [Insert FR          (c)(68)        VOC RACT for
                                                                                                    citation from                      Anheuser-Busch.
                                                                                                    published date].
 
                  *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ These regulations are applicable statewide unless otherwise noted in the Explanation section.
\2\ When the New Hampshire Department of Environmental Services was established in 1987, the citation chapter title for the air regulations changed from
  CH Air to Env-A.

[FR Doc. 02-18396 Filed 7-22-02; 8:45 am]
BILLING CODE 6560-50-P