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

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

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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

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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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