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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
DOCUMENT ID: [Region 2 Docket No. NY43a-212, FRL-6873-2]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Direct final rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision
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.
DOCUMENT 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.
SUMMARY: New York,
SUPPLEMENTAL 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
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'' (EPA452/R94011) 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
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 regionwide NO
The OTC NO
In order to comply with the 1999 reductions of the OTC
NO
IV. Are States Allowed To Use NO
Under EPA's interpretation of section 184(b)(2), states have the
option of adopting comparable NO
[[Page 58363]]
indicates that NO
V. What Is New York's Stage II Comparability Analysis?
New York State has adopted certain NO
New York's Phase II NO
EPA provides a NO
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 2273,
which provides greater emission reductions than Stage II and has
successfully demonstrated that the substitution of Phase II
NO
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 5501 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 notforprofit 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 FederalState 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, 25566 (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 costeffective 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 HHNew 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. 0024789 Filed 92800; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 100071866, (212) 6374249.
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