[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Rules and Regulations]
[Pages 23665-23668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11381]


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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.

* * * * *
    (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]
BILLING CODE 6560-50-P