Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; 15 Percent Rate-of-Progress and Contingency Plans; Vapor Recovery Controls for Gasoline Distribution and Dispensing

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-7162a; A-1-FRL-6196-1]

Approval and Promulgation of Air Quality Implementation Plans;

New Hampshire; 15 Percent Rate-of-Progress and Contingency Plans; Vapor

Recovery Controls for Gasoline Distribution and Dispensing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions

submitted by the State of New Hampshire. These revisions establish 15

percent rate-of-progress (ROP) and contingency plans for ozone

nonattainment areas in the State. The revisions also include

regulations adopted by New Hampshire to control volatile organic

compound (VOC) emissions from gasoline dispensing facilities and from

gasoline tank trucks. The intended effect of this action is to approve

these plans and regulations as revisions to the State's SIP. This

action is being taken in accordance with the Clean Air Act.

EFFECTIVE DATE: This rule is effective on January 6, 1999.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours, by

appointment at the Office of Ecosystem Protection, U.S. Environmental

Protection Agency, Region I, One Congress Street, 11th floor, Boston,

MA; and the Air Resources Division, Department of Environmental

Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-

2033.

FOR FURTHER INFORMATION CONTACT: Robert McConnell, (617) 565-9266.

SUPPLEMENTARY INFORMATION: Section 182(b)(1) of the Act requires ozone

nonattainment areas classified as moderate or above to develop plans to

reduce volatile organic compounds (VOC) emissions by 15 percent from

1990 baseline levels. There are two serious ozone nonattainment areas

in New Hampshire. The areas are referred to as the Portsmouth-Dover-

Rochester area (the ``Por-Dov-Roc area''), and the New Hampshire

portion of the Boston-Lawrence-Worcester area (the ``Bos-Law-Wor area).

New Hampshire is, therefore, subject to the 15 percent ROP requirement.

I. Background

On October 27, 1997 (62 FR 55544), EPA published a Notice of

Proposed Rulemaking (NPR) for the State of New Hampshire. The NPR

proposed approval of the State's 15 percent ROP and contingency plans.

The formal SIP revision was submitted by New Hampshire on August 29,

1996.

The proposed approval of New Hampshire's 15 percent ROP and

contingency plans which was published in the October 27, 1997 Federal

Register (62 FR 55544), stated that EPA accepted the level of emission

reductions projected to occur from the State's VOC RACT rules, Stage I

rule, and Stage II rule. EPA's proposed rulemaking noted that although

the State had submitted these rules to EPA, they had not been approved

by EPA as of October 27, 1997. On March 10, 1998 (63 FR 11600), EPA

approved the New Hampshire VOC RACT rules into the State's SIP. On

September 21, 1998 (63 FR 50180), EPA proposed approval of New

Hampshire's Part Env-A 1205 ``Volatile Organic Compounds (VOC):

Gasoline Dispensing Facilities and Gasoline Tank Trucks.'' This

regulation contains the State's Stage I and Stage II vapor recovery

control requirements. Today's action also includes a final approval of

New Hampshire's Part Env-A 1205.

Transportation Conformity Budgets

Under EPA's transportation conformity rule the 15 percent plans are

a control strategy SIP. The plans for New Hampshire establish VOC

emission budgets for on-road mobile sources within the respective

nonattainment areas. These plans do not establish NOX

emission budgets for on-road mobile sources. However, New Hampshire

submitted an ozone attainment demonstration SIP revision to EPA on June

30, 1998. The ozone attainment demonstration establishes the VOC and

NOX emission budgets for 2003 shown in Table 1.

Table 1.--2003 Emission Budgets for On-Road Mobile Sources

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

VOC Budget NOX Budget

Nonattainment area tons per tons per

summer day summer day

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

NH portion of Bos-Law-Wor area................ 10.72 21.37

Por-Dov-Roc area.............................. 6.97 13.68

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

By letter dated August 19, 1998, EPA informed New Hampshire that

the motor vehicle budgets contained within the State's ozone attainment

demonstration were adequate for conformity purposes. EPA believes that

the VOC and NOX budgets established by the New Hampshire

ozone attainment demonstration are currently the controlling budgets

for conformity determinations for 2003 and later years. The budgets in

the attainment demonstration specifically address anticipated mobile

source emissions in 2003, whereas the 15 percent plan establishes a

budget for 1996. The time period for the budget in the 15 percent plans

has passed. Additionally, the attainment demonstration establishes a

more stringent budget.

EPA's rationale for granting approval to these plans, and the

details of New Hampshire's submittal are contained in the NPR and the

accompanying technical support document and will not be restated here.

II. Public Comments

No comments were received on the October 27, 1997 NPR regarding

EPA's proposed action on the New Hampshire 15 percent ROP and

contingency plans, or on the September 21, 1998 NPR regarding the

State's Gasoline Dispensing Facilities and Gasoline Tank Trucks

regulation.

III. Final Action

EPA is approving the New Hampshire 15 percent ROP and contingency

plans as revisions to the State's SIP. EPA is also approving New

Hampshire's Part Env-A 1205 ``Volatile Organic Compounds (VOC):

Gasoline Dispensing Facilities and Gasoline Tank Trucks'' into the New

Hampshire SIP.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future

[[Page 67406]]

request for revision to any State implementation plan. Each request for

revision to the State implementation plan shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

IV. Administrative Requirements

A. Executive Orders 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it is not an

``economically significant'' action under Executive Order 12866.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

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

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in

[[Page 67407]]

the Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by February 5, 1999. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).) EPA encourages

interested parties to comment in response to the proposed rule rather

than petition for judicial review, unless the objection arises after

the comment period allowed for in the proposal.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone.

Note: Incorporation by reference of the State Implementation

Plan for the State of New Hampshire was approved by the Director of

the Federal Register on July 1, 1982.

Dated: November 19, 1998.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart EE--New Hampshire

2. Section 52.1520 is amended by adding paragraphs (c)(53) and

(c)(58) to read as follows:

Sec. 52.1520 Identification of plan.

* * * * *

(c) * * *

(53) Revisions to the State Implementation Plan submitted by the

New Hampshire Air Resources Division on August 29, 1996. This revision

is for the purpose of satisfying the rate-of-progress requirement of

section 182(b) and the contingency measure requirement of section

172(c)(9) of the Clean Air Act, for the Portsmouth-Dover-Rochester

serious ozone nonattainment area, and the New Hampshire portion of the

Boston-Lawrence-Worcester serious ozone nonattainment area.

(i) Incorporation by reference.

(A) Letter from the New Hampshire Air Resources Division dated

August 29, 1996 submitting a revision to the New Hampshire State

Implementation Plan.

* * * * *

(58) Revisions to the State Implementation Plan submitted by the

New Hampshire Air Resources Division on November 25, 1992.

(i) Incorporation by reference.

(A) Letter from the New Hampshire Air Resources Division dated

November 24, 1992 submitting a revision to the New Hampshire State

Implementation Plan.

(B) Part Env-A 1205 ``Volatile Organic Compounds (VOC): Gasoline

Dispensing Facilities and Gasoline Tank Trucks,'' effective in the

State of New Hampshire on August 17, 1992.

(ii) Additional materials.

(A) New Hampshire Department of Environmental Services ``Stage II

Equivalency Demonstration,'' dated November 1992.

(B) Nonregulatory portions of the submittal.

[FR Doc. 98-32421 Filed 12-4-98; 8:45 am]

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