[Federal Register Volume 65, Number 190 (Friday, September 29, 2000)]
[Rules and Regulations]
[Pages 58361-58364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24789]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY43a-212, FRL-6873-2]


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 EPA is approving a revision to the New York State 
Implementation Plan for ozone concerning the control of volatile 
organic compounds and oxides of nitrogen. This revision was submitted 
to comply with provisions of the Clean Air Act (CAA) relating to the 
adoption of vehicle refueling controls or comparable measure(s) in the 
upstate portion of New York State. The intended effect of this action 
is to approve a program required by the CAA which will result in 
emission reductions that will help achieve attainment of the national 
ambient air quality standard for ozone.

DATES: This direct final rule is effective on November 28, 2000 without 
further notice, unless EPA receives adverse comment by October 30, 
2000. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: All comments should be addressed to: Raymond Werner, 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 2 Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, New York 10007-1866.
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, SW., Washington, 
DC 20460.

[[Page 58362]]


FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. What Action Is EPA taking?
II. What Are the CAA Requirements for Stage II Comparability?
III. What Measures Are Included in New York's Stage II Comparability 
SIP?
IV. Are States Allowed to use NOx Emission Reductions as a 
Substitute for Stage II VOC Emission Reductions?
V. What Is New York's Stage II Comparability Analysis?
VI. Why Is EPA Approving New York's Stage II Comparability SIP 
Revision?
VII. Aministrative Requirements
    A. Executive Order 12866
    B. Executive Order 13045
    C. Executive Order 13084
    D. Executive Order 13132
    E. Regulatory Flexibility Act
    F. Unfunded Mandates
    G. Submission to Congress and the Comptroller General
    H. Petitions for Judicial Review

I. What Action Is EPA taking?

    The Environmental Protection Agency (EPA) is approving the Stage II 
(control of gasoline vapors resulting from the refueling of vehicle 
fuel tanks at gasoline service stations) comparability demonstration 
that the New York State Department of Environmental Conservation 
(NYSDEC) submitted on April 18, 2000. EPA is approving this submittal 
into the New York State Implementation Plan (SIP) because it meets the 
requirements of section 184(b)(2) of the Clean Air Act (CAA).

II. What Are the CAA Requirements for Stage II Comparability?

    Historically, there has been a major ozone nonattainment problem in 
the northeastern United States. A significant portion of the problem is 
the result of regional transport of ozone and ozone precursors 
(volatile organic compounds (VOC) and oxides of nitrogen 
(NO<INF>X</INF>)). To address this problem of interstate transport 
ozone air pollution, section 184 of the CAA specifically created the 
Ozone Transport Region (OTR), which includes the entire states of 
Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, 
New Jersey, New York, Pennsylvania, Rhode Island, and Vermont, and the 
District of Columbia consolidated metropolitan statistical area, which 
includes a portion of Virginia.
    The CAA established five classifications of ozone nonattainment 
areas. In ascending order of severity of the air pollution problem, 
these are: marginal, moderate, serious, severe, and extreme. In 
addition, there are three types of nonclassifiable ozone nonattainment 
areas: submarginal, transitional, and incomplete/no data. The CAA 
requires specific control requirements according to the designation and 
classification of each area.
    Section 184 also provides for a specific set of additional 
requirements for the OTR designed to address the regional transport 
problem. These additional requirements include control measures for 
attainment as well as nonattainment areas. For the OTR, there are two 
requirements related to Stage II vehicle refueling controls. One is the 
section 182(b)(3) requirement that all moderate and above nonattainment 
areas must adopt Stage II vehicle refueling controls. The New York City 
Metropolitan Area (including portions of Orange County) is classified 
as a severe ozone nonattainment area, and therefore, it adopted Stage 
II vehicle refueling controls, which were approved by EPA on April 30, 
1998 (63 FR 23665). Pursuant to section 202(a)(6) of the CAA, moderate 
areas were released from this requirement when EPA promulgated onboard 
vapor recovery rules.
    The second OTR requirement is the section 184(b)(2) requirement 
that all areas in the OTR must adopt Stage II or alternative measures 
capable of achieving comparable emissions. Because states that contain 
serious and above nonattainment areas must implement Stage II programs 
under section 182(b)(3), those areas, even after promulgation of the 
onboard regulations, cannot take advantage of the flexibility provided 
by section 184(b)(2) to adopt a comparable measure instead.
    Section 184(b)(2) of the CAA requires that states in the 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 vehicle refueling controls. EPA completed its study 
``Stage II Comparability Study for the Northeast Ozone Transport 
Region'' (EPA-452/R-94-011) on January 13, 1995. Therefore, New York 
was required to either adopt Stage II in areas outside the New York 
City Metropolitan area or adopt comparable regulations.

III. What Measures Are Included in New York's Stage II 
Comparability SIP?

    To demonstrate that it has met the CAA Stage II comparability 
requirement, New York relies on NO<INF>X</INF> controls in lieu of 
implementing the control of VOCs at gasoline service stations in the 
upstate portion of New York State. These NO<INF>X</INF> reductions will 
serve as comparable emission reductions as defined in section 184(b)(2) 
of the CAA.
    On September 27, 1994, the Ozone Transport Commission (OTC) agreed 
to a Memorandum of Understanding (MOU) committing the signatory states 
to the development and implementation of a region-wide NO<INF>X</INF> 
emission reduction. The OTC MOU promotes emission reductions at utility 
and large industrial boilers for the purpose of reducing ozone season 
NO<INF>X</INF> emissions and further the effort to achieve the federal 
health-based standards.
    The OTC NO<INF>X</INF> MOU calls for states to reduce 
NO<INF>X</INF> emissions from boilers and indirect heat exchangers with 
heat inputs greater than 250 million Btu per hour. These reductions 
will be realized in two phases, the first phase is implemented in 1999 
and the second in 2003.
    In order to comply with the 1999 reductions of the OTC 
NO<INF>X</INF> MOU, New York State adopted subpart 227-3 entitled the 
``Pre-2003 Nitrogen Oxides Emissions Budget and Allowance Program'' on 
March 5, 1999. EPA approved subpart 227-3 as part of the SIP on April 
19, 2000 (65 FR 20905). Subpart 227-3 implemented the 1999-2002 
NO<INF>X</INF> emission reductions by establishing a statewide 
NO<INF>X</INF> Budget for all fossil fuel fired boilers and indirect 
heat exchangers with a maximum rated heat input capacity of 250 million 
Btu per hour or greater as well as emissions from other fuel fired 
electric generating sources with a rated output of 15 megawatts (MW) or 
greater.

IV. Are States Allowed To Use NO<INF>X</INF> Emission Reductions as 
a Substitute for Stage II VOC Emission Reductions?

    Under EPA's interpretation of section 184(b)(2), states have the 
option of adopting comparable NO<INF>X</INF> control measures instead 
of Stage II. EPA provides the methodology for determining what level of 
NO<INF>X</INF> emission reductions is comparable to Stage II VOC 
emissions reductions for a particular area, and therefore, allowed to 
be substituted. NO<INF>X</INF> may not be substituted for VOC in areas 
where there is a waiver under section 182(f) of the CAA from some or 
all NO<INF>X</INF> requirements because such a waiver

[[Page 58363]]

indicates that NO<INF>X</INF> reductions are either in excess and not 
necessary for attainment, or NO<INF>X</INF> reductions are otherwise 
not beneficial. New York State has not obtained any such waivers under 
section 182(f).

V. What Is New York's Stage II Comparability Analysis?

    New York State has adopted certain NO<INF>X</INF> controls in lieu 
of implementing the control of VOCs at gasoline service stations in the 
upstate portion of New York State. New York's analysis relies on the 
Interim Inventory projections provided in the EPA Stage II 
Comparability Study for the Northeast Ozone Transport Region, January, 
1995. The EPA study projects for Stage II vapor recovery VOC emission 
reductions of 25 tons per day (tpd) for the upstate portion of New York 
State. The New York City Metropolitan Area is classified as a severe 
ozone nonattainment area, and therefore, it is not eligible for 
inclusion in this comparability analysis.
    New York's Phase II NO<INF>X</INF> budget and allocation program 
established a state-wide cap of 46,959 tons for the ozone season (May 
1-September 30). These 46,959 tons were allocated to the affected 
sources through a negotiation process involving representatives from 
each affected facility. The 5-month budget was divided by 153 days 
(total number days in the ozone season) to provide a ton per day (tpd) 
figure. After removing the sources located in the severe nonattainment 
area, the aggregated creditable reduction for Stage II substitution 
from remaining affected sources equates to 81.6 tpd NO<INF>X</INF>.
    EPA provides a NO<INF>X</INF> to VOC substitution ratio in the 
percent of each total inventory basis. Ratios for each state in the OTR 
are presented in EPA's Stage II Comparability Study for the Northeast 
Ozone Transport Region, table 5-1. The 81.6 tpd of NO<INF>X</INF> 
equates to 102 tpd VOC when using this substitution ratio.

VI. Why Is EPA Approving New York's Stage II Comparability SIP 
Revision?

    EPA has evaluated New York's Stage II comparability SIP revision 
and finds it consistent with the CAA, EPA regulations, and EPA policy. 
EPA is approving New York's Stage II comparability SIP revision because 
New York has provided a substitute control measure, Subpart 227-3, 
which provides greater emission reductions than Stage II and has 
successfully demonstrated that the substitution of Phase II 
NO<INF>X</INF> controls is a comparable measure to Stage II control for 
the upstate portion of New York State.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal 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 
adverse comments be filed. This rule will be effective November 28, 
2000 without further notice unless the Agency receives adverse comments 
by October 30, 2000.
    If the EPA receives adverse comments, then EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

VII. Administrative Requirements

A. Executive Order 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 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 
Executive Order 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.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This SIP approval is not subject 
to Executive Order 13045 because it proposes approval of a state 
program implementing a Federal standard, and it is not economically 
significant under Executive Order 12866.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly 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, 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. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts state law unless the 
Agency consults with state and local officials

[[Page 58364]]

early in the process of developing the proposed regulation.
    This rule will 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, 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. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

E. Regulatory Flexibility Act

    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 CAA 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, EPA certifies 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 CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
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 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 final approval action 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.

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. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 28, 2000. 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, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 21, 2000.
William J. Muszynski,
Acting Regional Administrator, Region 2.

    40 CFR Part 52 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 52.1683 is amended by adding new paragraph (g) to read 
as follows:


Sec. 52.1683  Control strategy: Ozone.

* * * * *
    (g) EPA approves as a revision to the New York State Implementation 
Plan, the Stage II gasoline vapor recovery comparability plan for 
upstate portions of New York State submitted by the New York State 
Department of Environmental Conservation on April 18, 2000.

[FR Doc. 00-24789 Filed 9-28-00; 8:45 am]
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