Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY25-2-173b, FRL-5995-4]

Approval and Promulgation of Implementation Plans; New York State

Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a

revision to the New York State Implementation Plan (SIP) for ozone

concerning the control of volatile organic compounds. The SIP revision

consists of amendments to the New York Code of Rules and Regulations.

This revision was submitted to comply with the gasoline vapor recovery

provisions for gasoline service stations in the Clean Air Act (the

Act). The intended effect of this action is to approve a program

required by the Act which will result in emission reductions that will

help achieve attainment of the national ambient air quality standard

(NAAQS) for ozone.

DATES: This rule is effective on June 29, 1998 unless relevant adverse

comments are received by June 1, 1998. If EPA receives relevant adverse

comments, a timely withdrawal will be published in the Federal

Register.

ADDRESSES: All comments should be addressed to: Ronald J. Borsellino,

Chief, Air Programs Branch, Environmental Protection Agency, Region 2

Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

Copies of the state submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

290 Broadway, 25th Floor, New York, New York 10007-1866

[[Page 23666]]

New York State Department of Environmental Conservation, Division of

Air Resources, 50 Wolf Road, Albany, New York 12233

Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, S.W., Washington,

D.C. 20460

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 25th Floor, New York,

New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

On November 28, 1989 (54 FR 48888) EPA approved a revision to New

York's State Implementation Plan (SIP) for ozone which added

requirements for the control of gasoline vapors resulting from the

refueling of vehicle fuel tanks at gasoline service stations (known as

Stage II) and were adopted by the State on March 2, 1988 as revisions

to Part 230 of title 6 of the New York Code of Rules and Regulations of

the State of New York, entitled, ``Gasoline Dispensing Sites and

Transport Vehicles.'' On July 8, 1994, the New York State Department of

Environmental Conservation (NYSDEC) submitted to EPA a SIP revision for

ozone consisting of amendments to Part 230. These revisions became

effective on September 22, 1994. These revisions to Part 230 expand the

geographic applicability of the Stage II requirements and address

section 182(b)(3) of the Clean Air Act (the Act). Section 182(b)(3)

mandates that states submit a revised SIP by November 15, 1992 which

requires owners or operators of gasoline dispensing systems to install

and operate Stage II gasoline vehicle refueling vapor recovery systems

in ozone nonattainment areas designated as moderate and above.

The New York portion of the ``New Jersey, New York, Connecticut

interstate metropolitan air quality control region'' (NYCMA--composed

of New York City and the counties of Nassau, Suffolk, Westchester and

Rockland) was previously designated nonattainment for ozone. Under the

Act as amended in 1990, EPA included these areas as part of the New

York-Northern New Jersey-Long Island Nonattainment Area and designated

it with an ozone classification of severe nonattainment.

On November 6, 1991 (56 FR 56694), EPA extended the boundaries of

the New York-Northern New Jersey-Long Island Nonattainment Area to

include Putnam and Orange counties. New York, however, requested time

to study the boundaries and classification pursuant to section

187(d)(4)(A)(iv) of the Act. Based on New York's study, EPA revised the

designations on November 30, 1992 (57 FR 56762). EPA included part of

Orange County or the Lower Orange County Metropolitan Area (LOCMA)

consisting of the towns of Blooming Grove, Chester, Highlands, Monroe,

Tuxedo, Warwick and Woodbury) in the New York-Northern New Jersey-Long

Island Nonattainment Area. This entire area is classified as severe

nonattainment.

In addition, on October 6, 1994 (59 FR 50848), EPA reclassified the

Poughkeepsie ozone nonattainment area (includes the counties of

Dutchess, Putnam and that portion of Orange not discussed previously)

to moderate nonattainment. It had been designated as marginal

nonattainment. Section 182(b)(3) of the Act requires areas classified

as moderate to implement Stage II controls unless and until EPA

promulgates on-board vapor recovery regulations pursuant to section

202(a)(6) of the Act. However, many moderate ozone nonattainment areas

may need to continue or adopt Stage II in order to satisfy other air

quality requirements. The final rule for on-board vapor recovery

systems has been promulgated and was published in the Federal Register

on April 6, 1994 (59 FR 16262). However, the Stage II vapor recovery

program is still required in the NYCMA and LOCMA areas since they are

designated as severe nonattainment areas for ozone. Therefore, only the

NYCMA and LOCMA ozone nonattainment areas are addressed in the July 8,

1994 SIP revision of Part 230 in which EPA is approving.

II. Stage II--Gasoline Vapor Recovery

Section 182(b)(3) of the Act mandates that states submit a revised

SIP by November 15, 1992 that requires owners or operators of gasoline

dispensing systems to install and operate Stage II gasoline vehicle

refueling vapor recovery systems in ozone nonattainment areas

designated as moderate and above.

Pursuant to section 182(b)(3) of the Act, EPA is required to issue

guidance as to the effectiveness of Stage II systems. In November 1991,

EPA issued technical and enforcement guidance to meet this requirement.

In addition, on April 16, 1992, EPA published the ``General Preamble

for the Implementation of title I of the Clean Air Act Amendments of

1990'' (``General Preamble'') (57 FR 13498). The guidance documents and

the General Preamble interpret the Stage II statutory requirement and

indicate what EPA believes a state submittal needs to include to meet

that requirement. These two documents are entitled ``Technical

Guidance-Stage II Vapor Recovery Systems for Control of Vehicle

Refueling Emissions at Gasoline Dispensing Facilities'' (EPA-450/3-91-

022) and ``Enforcement Guidance for Stage II Vehicle Refueling Control

Programs.'' The reader is referred to the General Preamble for a

detailed explanation of Stage II requirements.

The Stage II vapor recovery program requires owners and operators

of gasoline dispensing facilities that dispense greater than 10,000

gallons of fuel per month (50,000 gallon per month in the case of an

independent small business marketer) to install and operate gasoline

vehicle refueling vapor recovery systems. Vapor recovery systems

control the release of volatile organic compounds, benzene, and toxics

emitted during the refueling process.

States must require Stage II to be effective under a specified

phase-in schedule of 6 months after the state adopts the required

regulation for stations constructed after November 15, 1990; one year

after the adoption date for stations dispensing at least 100,000

gallons per month, (as calculated over a 2-year period before the

adoption date); and two years after the adoption date for all other

facilities required to install controls.

As a separate requirement, section 184(b)(2) of the Act mandated

EPA to complete a study identifying control measures capable of

achieving emission reductions comparable to those achievable through

vehicle refueling controls contained in section 182(b)(3) of the Act,

and required such measures or such vehicle refueling controls to be

implemented in all areas in the Ozone Transport Region (OTR), e.g.,

Northeast OTR. The entire State of New York is included in the

Northeast OTR. EPA completed the ``Stage II Comparability Study for the

Northeast OTR'' on January 13, 1995, which requires New York to adopt

and submit a SIP revision by January 13, 1996 for either Stage II or a

comparable measure(s) for those areas currently not controlled by the

Stage II requirements in Part 230 (i.e., all upstate areas of New

York). New York is currently in the process of addressing this

requirement, therefore, it was not included in the July 8, 1994 SIP

revision.

III. State Submittal

Part 230--Gasoline Dispensing Sites and Transport Vehicles

A. The revisions to Part 230 expands the applicability of Stage I

vapor controls (control of gasoline vapors

[[Page 23667]]

during storage tank filling) statewide to all gasoline facilities with

an annual throughput of 120,000 gallons and includes additional

requirements for gasoline transport vehicles which service these

facilities located in New York State.

B. Part 230 also expands Stage II controls to smaller stations in

the NYCMA and into the LOCMA. Stage II was previously not required in

the LOCMA and required only for stations with annual throughputs over

250,000 gallons in the NYCMA, but the Act required this strategy in all

severe nonattainment areas for stations over 120,000 gallons annual

throughput. Therefore, New York revised Part 230 to accommodate this

lower limit in the NYCMA and added these requirements in the LOCMA.

C. New York requires that Stage II systems be tested and approved

using a testing program that is based on the California Air Resources

Board program.

D. New York requires sources to verify proper installation and

function of Stage II equipment through use of a liquid blockage test

and a leak test prior to system operation and at five year intervals or

upon modification of a facility.

E. With respect to recordkeeping, New York's revisions to Part 230

address those items recommended in EPA's guidance and specifies that

sources subject to Stage II must post a copy of the registration form

required by Part 201, ``Permits and Certificates'' at the gasoline

dispensing site in a location accessible for inspection. In addition,

New York requires any gasoline dispensing site to maintain records

containing the gasoline throughput of the facility.

F. New York has also established an inspection function consistent

with that described in EPA's guidance. Rule 230 was amended to require

daily visual inspections of the Stage II components and to prohibit the

use of dispensers with defective Stage II components.

G. EPA reviewed the submittal against the requirements of sections

182(b)(3) and 182(b)(2) of the Act, as interpreted in the General

Preamble for Implementation of title I of the Clean Air Act Amendments

of 1990 (57 FR 13498, 13513 (April 16, 1992)), and the two EPA

documents entitled Technical Guidance-Stage II Vapor Recovery Systems

for Control of Vehicle Refueling Emissions at Gasoline Dispensing

Facilities and the Enforcement Guidance for Stage II Vehicle Refueling

Control Programs. EPA has determined that Part 230 is consistent with

EPA guidance and meets all Act requirements for the regulated

geographical area.

Conclusion

EPA has evaluated New York's submittal for consistency with the

Act, EPA regulations, and EPA policy. EPA has determined that the

revisions made to Part 230 of title 6 of the New York Code of Rules and

Regulations of the State of New York, entitled, ``Gasoline Dispensing

Sites and Transport Vehicles,'' effective September 22, 1994, meet the

requirements of the Act. Therefore, EPA is approving those revisions.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

relevant 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 relevant adverse comments be filed. This rule will be effective

June 29, 1998 without further notice unless the Agency receives

relevant adverse comments by June 1, 1998.

If the EPA receives such comments, then EPA will publish a notice

withdrawing the final rule and informing the public that the rule did

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. Only parties

interested in commenting on the proposed rule should do so at this

time. If no such comments are received, the public is advised that this

rule will be effective on June 29, 1998 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 SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from E.O. 12866 review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the 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 impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the Act,

preparation of a flexibility analysis would constitute federal inquiry

into the economic reasonableness of state action. The 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).

Unfunded Mandates

Under section 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

annual costs to state, local, or tribal governments in the aggregate;

or to 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 annual 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.

Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement

[[Page 23668]]

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. Sec. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by June 29, 1998. 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, Intergovernmental relations, Ozone, Reporting and

recordkeeping requirements, Volatile organic compounds.

Dated: March 30, 1998.

William Muszynski,

Acting Regional Administrator, Region 2.

Part 52, 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 HH--New York

2. Section 52.1670 is amended by adding new paragraph (c)(92) to

read as follows:

Sec. 52.1670 Identification of plan.

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(c) * * *

(92) Revisions to the New York State Implementation Plan (SIP) for

ozone concerning the control of volatile organic compounds from

Gasoline Dispensing Sites and Transport Vehicles, dated July 8, 1994,

submitted by the New York State Department of Environmental

Conservation (NYSDEC).

(i) Incorporation by reference:

(A) Amendments to Part 230 of title 6 of the New York Code of Rules

and Regulations of the State of New York, entitled ``Gasoline

Dispensing Sites and Transport Vehicles,'' effective September 22,

1994.

(ii) Additional material:

(A) July 8, 1994, letter from Langdon Marsh, NYSDEC, to Jeanne Fox,

EPA, requesting EPA approval of the amendments to Part 230.

3. In Sec. 52.1679 the table is amended by revising the entry, for

Part 230 to read as follows:

Sec. 52.1679 EPA-approved New York State regulations.

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State

New York State regulation effective date Latest EPA approval date Comments

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Part 230, Gasoline Dispensing 8/22/94 April 30, 1998..............

Sites and Transport Vehicles.

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[FR Doc. 98-11381 Filed 4-29-98; 8:45 am]

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