[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
