Supplemental Notice of Proposed Rulemaking on Ozone Transport Commission; Emission Vehicle Program for the Northeast Ozone Transport Region
Federal RegisterSep 22, 1994
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SUMMARY: Pursuant to section 184 of the Clean Air Act, the Northeast
Ozone Transport Commission recommended that EPA require all state
members of the OTC to adopt an Ozone Transport Commission Low Emission
Vehicle (LEV) program.
In today's supplemental notice of proposed rulemaking (SNPRM), EPA
is proposing to find that reduction of new motor vehicle emissions
through OTC LEV or LEV-equivalent program is necessary to mitigate the
effects of pollution transport and to bring nonattainment areas in the
OTR into attainment and to avoid interference with maintenance. EPA
believes an alternative federal low emission vehicle program can be
developed that would achieve reductions equivalent to or greater than
the OTC LEV program. EPA also believes there could be significant
additional benefits from such a program and proposes in today's notice
a process by which development of such a program could continue. The
Agency intends to work with stakeholders in this effort.
Given the absence of such a program, however, EPA is proposing
under sections 184(c) and 110(k)(5) of the Act that the OTC LEV program
is necessary throughout the OTR and is consistent with the Act. EPA is
thus proposing a SIP call under section 110(k)(5) to require each state
in the OTR to revise its SIP to include the OTC LEV program within one
year. Today's notice also proposes regulations determining ``model
year'' for purposes of section 177 and part A of title II of the Act as
that term is applied to on-highway motor vehicles.
DATES: The comment period for this rulemaking will reopen immediately
for purposes of taking comment on issues raised in this Supplemental
Proposal and will remain open until October 24, 1994. Please direct all
correspondence to the address specified below. EPA will hold a public
hearing on this Supplemental Notice of Proposed Rulemaking if one is
requested by September 29, 1994. EPA will hold such a hearing on
September 29, 1994. The hearing, if requested, would begin at 9 a.m.
and continue until 4:30 p.m. or until all commenters have the
opportunity to testify. Members of the public may call the contact
person indicated below to find out whether a hearing will be held and,
if so, the exact location.
ADDRESSES: Written comments should be submitted (in duplicate if
possible) to the Air Docket (see address below). Copies of information
relevant to this matter are available for inspection in public docket
A-94-11 at the Air Docket (LE-131) of the EPA, room M-1500, 401 M
Street SW., Washington, DC 20460, tel. (202) 260-7548, between the
hours of 8 am to 4 pm, on Monday through Friday.
The hearings, if requested, will be held in Washington, DC.
FOR FURTHER INFORMATION CONTACT: Michael Shields, Office of Mobile
Sources, U.S. EPA, 401 M Street SW., Washington, DC 20460, tel. (202)
260-3450.
SUPPLEMENTARY INFORMATION:
I. Outline and Background
This proposal supplements EPA's April 26 proposal, and EPA does not
intend to thereby withdraw from consideration any of the various
elements previously proposed. Rather, EPA intends to focus for purposes
of public comment on EPA's proposed specific approach to, and basis
for, approving the OTC LEV recommendation. In addition, EPA is
proposing today ``model year'' regulations that are relevant to, but
beyond the specific scope of EPA's April 26 proposal.
This proposal is organized into the following sections:
I. Outline and Background
A. Overview of Title I Scheme
B. Ozone Transport Region Provisions
C. Background Regarding OTC LEV Program
D. EPA Actions in Response to the OTC LEV Recommendation
II. Explanation of Proposed Action
III. Statutory Framework for Proposed Action
A. EPA's Authority under Section 184
B. State Obligations and EPA's Authority under Section 110
C. Constitutional Validity of Section 184 Process
D. Consistency of EPA Action with Limitations on Authority under
Sections 177, 202 and 209 of the Act
IV. Basis for Approval of OTC LEV Recommendation
A. Necessity
1. Legal Interpretation of Necessity
2. Analysis of Need for OTC LEV (or LEV-Equivalent) Program
(a) Magnitude of Reductions Needed for Attainment in 2005
i. General Conclusions
ii. Analytical Modeling Tools
(b) Contribution Analysis
(c) Analysis of Inventory and Options for Control Measures
i. Inventory Analysis
ii. Analysis of Options for Control Measures Without More
Stringent New Motor Vehicle Standards
iii. Determination Whether Reduction from OTC LEV (or LEV-
Equivalent) Approach to New Motor Vehicles Are Necessary
(d) Particular Circumstances of OTC LEV Program
(e) Conclusions Regarding Need for OTC LEV (or LEV Equivalent)
for Purposes of Attainment by the Dates Provided in Subpart II of
Part D of title I
3. Need for OTC LEV (or LEV-Equivalent) Program for Purposes of
Maintenance
(a) Legal Relevance of Maintenance
(b) Technical Analysis of Need for OTC LEV (or LEV-Equivalent)
Program for Maintenance
4. Relevance of EPA Transport Policy
B. Consistency with Section 177 of the Clean Air Act
1. Introduction
2. California Fuel Regulations
(a) Identicality Requirement
(b) Third Vehicle Prohibition
3. ZEV Sales Requirement
4. Incorporation of Minor Provisions of California LEV Program
5. NMOG Fleet Average
6. Averaging, Banking and Trading
7. Applicability of Section 177 in States without Plan
Provisions Approach under Part D
V. SIP Call
A. Explanation of Proposed SIP Call
B. Legal Basis to Provide for Possibility of Alternative
Standards Program in SIP Call
C. Sanctions
VI. Determination of Model Year
A. Introduction
B. Statutory and Regulatory Requirements
C. New York and Massachusetts Litigations
D. Determination of Model Year
VII. Statutory Authority
VIII. Administrative Designation and Regulatory Analysis
IX. Impact on Small Entities
X. Paperwork Reduction Act
I. Outline and Background
A. Overview of Title I Scheme
The OTC's recommendation under section 184(c) of the Act that EPA
mandate that states in the OTR adopt the LEV program arises in the
context of the program designed to address ozone (or ``smog'')
pollution in subpart 2 of part D of title I of the Act. This program is
described in detail in EPA's General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990, 57 FR 13498 (April 16,
1992), and the Nitrogen Oxides Supplement to the General Preamble, 57
FR 55620 (Nov. 25, 1992).
A number of provisions in subpart 2 and elsewhere in the Act are
particularly important to emphasize here. Part D establishes a system
for more polluted areas to have more time to attain the National
Ambient Air Quality Standards (NAAQS) and subjects those more polluted
areas to a graduated program of additional and more stringent specific
control requirements to be accomplished over the longer timeframe.
Section 181(a) provides for classification of ozone nonattainment
areas based on the degree of the nonattainment problem in the area (as
measured by the area's ozone design value), and provides that
attainment ``shall be as expeditiously as practicable but not later
than'' specified deadlines expressed as years after enactment. The
areas and the corresponding attainment deadlines are: Marginal (1993);
moderate (1996); serious (1999); severe (2005 or 2007, depending on the
design value); and extreme (2010). The Act also provides for
designation of areas as attainment or as ``unclassifiable.'' All
classifications other than extreme are represented in the OTR. Section
184(b) also specifies additional requirements applicable for attainment
areas in ozone transport regions, including: (1) Enhanced vehicle
inspection and maintenance programs in cities meeting specified size
thresholds; (2) state-wide implementation of reasonably available
control measures (RACT); (3) ``Stage II'' vehicle refueling vapor
controls or ``comparable measures''; and (4) treatment of major
stationary sources of ozone precursors as if they were in moderate
nonattainment areas.
Section 182 establishes the graduated control measures applicable
for each nonattainment classification. These measures are additive in
that the higher classifications must generally adopt, in addition to
measures specifically applicable to that higher classification, all
measures identified for lower classifications as well. A basic
requirement applicable to marginal and above classifications is that
states are to submit inventories of actual emissions from all sources
in each nonattainment area. See sections 182(a)(1) and 172(c)(3). These
emissions inventories may be important in determining whether the LEV
program is necessary in the OTR. The inventories are critical inputs
for models used to determine the magnitude of emissions reductions that
may be needed for attainment and the effectiveness of various measures
to obtain such reductions.
Another potentially key requirement is that moderate and above
areas must submit attainment demonstrations. Under section
182(b)(1)(A), for moderate and above areas, states are to specify in
their plans specific annual reductions in emissions ``as necessary to
attain the [NAAQS] for ozone by the attainment date applicable under
this Act.'' Under section 182(c)(2)(A), for serious and above areas,
states are to submit a demonstration that the SIP, ``as revised, will
provide for attainment of the ozone [NAAQS] by the applicable
attainment date.'' Further, this provision continues, ``[t]his
attainment demonstration must be based on photochemical grid modeling
or any other analytical method determined by the Administrator, in the
Administrator's discretion, to be at least as effective.'' The modeling
information is, of course, important to determining the reductions
necessary in areas to achieve attainment throughout the OTR.
It is also relevant that states are obligated to adopt various
measures specified for progress toward attainment, and to achieve
certain percentage reductions in emissions by interim dates. In
general, section 172(c)(2) requires that SIPs ``require reasonable
further progress'' (RFP), defined in section 171(1) to mean ``such
annual incremental reductions in emissions of the relevant air
pollutant as are required by this part or may reasonably be required by
the Administrator for the purpose of ensuring attainment of the [NAAQS]
by the applicable date.'' Section 182(b) specifically provides that, by
November 15, 1993, states were to submit SIP revisions for moderate and
above areas providing for, with a limited feasibility exception, a 15%
reduction by 1996 in emissions of volatile organic compounds (VOCs)
from a 1990 baseline. Further, section 182(c)(2)(B) provides that, by
November 15, 1994, states are to submit SIP revisions for serious and
above areas that will result, subject to a limited feasibility
exception, in additional reductions in VOC emissions from the 1990
baseline of 3% each year averaged over consecutive 3-year periods
beginning in 1996 and until the attainment date. Section 182(c)(2)(C)
provides for substitution of reductions in emissions of nitrogen oxides
(NOX) for VOC, in accordance with EPA guidance. These RFP
requirements establish minimum reductions that certain nonattainment
areas in the OTR will be required to achieve apart from whether EPA
approves or disapproves the OTC recommendation.
Finally, section 110 of the Act establishes general requirements
for SIPs. Section 110(a)(2) specifies minimum elements of a state's
SIP, and subparagraph (D) specifies that a state's SIP shall:
Contain adequate provisions--
(i) Prohibiting, consistent with the provisions of this title, any
source or other type of emissions activity within the State from
emitting any air pollutant in amounts which will--
(I) Contribute significantly to nonattainment in, or interfere with
maintenance by, any other State with respect to any such national
primary or secondary ambient air quality standard.
This provision, as discussed in detail below, is the key mechanism
under the transport provisions of sections 176A and 184, and is central
to the OTC recommendation and to EPA's action on it.
B. Ozone Transport Region Provisions
The OTR was established by operation of law under section 184 of
the Act and is comprised of the States of Connecticut, Delaware, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, the District of Columbia, and the
portion of Virginia that is within the Consolidated Metropolitan
Statistical Area that includes the District of Columbia. Congress
established the OTR in the 1990 Amendments to the Act based on the
recognition that the transport of ozone and ozone precursors throughout
the region may render the northeast states' attainment strategies
interdependent.
Under section 184, the Administrator established a Northeast Ozone
Transport Commission for the OTR consisting of the Governors of each
state or their designees, the Administrator or her designee, the
Regional Administrators for the EPA regional offices affected (or the
Administrator's designees), and an air pollution control official
representing each state in the region, appointed by the Governor.
Section 184(c) specifies a procedure for the OTC to develop
recommendations for additional control measures to be applied within
all or a part of the OTR if the OTC determines that such measures are
necessary to bring any area in the OTR into attainment for ozone by the
applicable dates in the Act. Section 184(c)(1) provides that:
Upon petition of any States within a transport region for ozone,
and based on a majority vote of the Governors on the Commission (or
their designees), the Commission may, after notice and opportunity
for public comment, develop recommendations for additional control
measures to be applied within all or a part of such transport region
if the commission determines such measures are necessary to bring
any area in such region into attainment by the dates provided by
[subpart 2 of part D of title I of the Clean Air Act].
Section 184(c) also lays out procedures the Administrator is to
follow in responding to recommendations from the OTC. Upon receipt of
the recommendations, the Administrator is to publish a Federal Register
notice stating that the recommendations are available and providing an
opportunity for a public hearing within 90 days. The Administrator is
also to ``commence a review of the recommendations to determine whether
the control measures in the recommendations are necessary to bring any
area in such region into attainment by the dates provided by [subpart
2] and are otherwise consistent with [the] Act.'' Finally, in
undertaking her review, the Administrator is to consult with members of
the OTC and is to take into account the data, views, and comments
received pursuant to the public hearing.
Last, sections 184(c)(4) and (5) govern EPA's response to the OTC
recommendations. The Administrator is to determine whether to approve,
disapprove, or partially approve and partially disapprove the
recommendations within nine months of receipt. For any disapproval, the
Administrator is to specify:
(i) Why any disapproved additional control measures are not
necessary to bring any area in such region into attainment by the dates
provided by [subpart 2] or are otherwise not consistent with the Act;
and
(ii) Recommendations concerning equal or more effective actions
that could be taken by the commission to conform the disapproved
portion of the recommendations to the requirements of [section 184].
Section 184(c)(5) provides that, upon approval or partial approval
of any recommendations, the Administrator is to issue to each state in
the OTR to which an approved requirement applies a finding under
section 110(k)(5) that the SIP for that state is inadequate to meet the
requirements of section 110(a)(2)(D), quoted above. Under section
184(c)(5), the Administrator's finding of inadequacy under section
110(a)(2)(D) is to require that each affected state revise its SIP to
include the approved additional control measures within one year after
the finding is issued.
Finally, section 184(d) provides that, for purposes of section 184,
the Administrator is to ``promulgate criteria for purposes of
determining the contribution of sources in one area to concentrations
of ozone'' in another nonattainment area. These criteria are to
``require that the best available air quality monitoring and modeling
techniques be used for purposes of making such determinations.'' EPA
issued such criteria in 1991.1
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\1\See U.S. EPA, Doc. EPA-450/4-91-015, Criteria for Assessing
the Role of Transported Ozone/Precursors in Ozone Nonattainment
Areas (1991).
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C. Background Regarding OTC LEV Program
The Administrator convened the OTC on May 7, 1991. Thereafter, the
OTC moved to work toward a regional ozone strategy with emphasis on
consensus agreements to adopt regional measures to address the ozone
problem in the Northeast. To address the contribution of motor vehicles
to the northeast ozone problem, the OTC focused early on emissions
standards for new motor vehicles and on adoption of federal
reformulated gasoline throughout the OTR as potential additional
control measures. The Act, however, imposes certain limitations on the
states' ability to adopt new motor vehicle emissions standards.
Section 209 of the Act generally preempts states from establishing
new motor vehicle emissions standards, leaving such regulation to EPA
under section 202 of the Act. Section 209 does, however, provide an
exception for California to adopt new motor vehicle emissions standards
where the Administrator grants a preemption waiver based on a finding
that California's standards will be, ``in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards.'' Further, under section 177 of the Act, any state which has
SIP provisions approved under part D of title I may adopt and enforce
new motor vehicle emission standards for any model year if:
(1) Such standards are identical to the California standards for
which a waiver has been granted for such model year, and
(2) California and such state adopt such standards at least two
years before commencement of such model year (as determined by
regulations of the Administrator).* * *.
EPA has granted a waiver for California's ``Low Emission Vehicle''
program. See 58 FR 4166 (Jan. 13, 1993)(announcing availability of
Waiver of Federal Preemption; California Low-Emission Vehicle Standards
(Jan. 8, 1993)). This program generally calls for five categories of
vehicles meeting progressively more stringent emissions standards:
California Tier I vehicles; Transitional Low Emission Vehicles (TLEV);
Low Emission Vehicles (LEV); Ultra-Low Emission Vehicles (ULEV); and
Zero Emission Vehicles (ZEV). California has also established an
overall non-methane organic gas (NMOG) standard that each manufacturer
must meet for its fleet of new vehicles in a particular model year by
selling any combination of vehicles certified by California as meeting
standards for one of the five categories. In addition, under
California's program, at least 2% of each manufacturers' new vehicle
fleet sold in California must be ZEV's by 1998 and 10% by 2003.
At its second meeting on July 16, 1991, the OTC adopted a
Memorandum of Understanding (MOU) in which the state and District of
Columbia representatives agreed that, in view of the significant
contribution of motor vehicles to the northeast ozone problem, they all
support California's Motor Vehicle Control Program, and call on their
jurisdictions to cooperatively evaluate the feasibility, air quality
benefits, and associated costs of this Program in the OTR. At its third
meeting on October 29, 1991, the OTC states agreed to a further MOU
providing that each OTC state would take steps to implement
California's Low Emission Vehicle program as soon as possible. New York
and Massachusetts are the only states that have adopted the California
LEV program in legislation and regulations without contingencies, and
both states are set to implement their programs. The automobile
manufacturers have challenged the legality of both programs, and both
lawsuits are ongoing. Other states have adopted or are adopting the
program contingent on regional program adoption, and the remaining
states are at various stages of the legislative or regulatory process
to adopt the program.
In August 1993, Maine, Maryland, and Massachusetts petitioned the
OTC to adopt a recommendation calling for the application of the
California LEV program throughout the OTR. During the fall of 1993, the
OTC held a number of public forums in various locations in the
northeast, and held a public hearing in Hartford, Connecticut on
December 16-17, 1993. Finally, at its winter meeting on February 1,
1994, in Washington, D.C., the OTC voted by a 9 to 4 majority to
recommend that EPA mandate the California LEV program throughout the
OTR. (The OTC refers to the program they recommend as ``OTC LEV.'') New
Hampshire, Virginia, Delaware, and New Jersey voted against the
recommendation. The OTC's recommendation contains the following
elements:
(1) The OTC LEV program would be applicable to all 1999 and
subsequent model year passenger cars and light-duty trucks in the OTR;
(2) Subject to certain very limited exceptions, all vehicles sold,
imported, delivered, purchased, leased, rented, acquired, received, or
registered in the OTR that would be subject to the OTC LEV program
would have to be certified pursuant to a California Air Resources Board
(CARB) Executive Order;
(3) The OTC LEV program would allow the sale of the five categories
of California vehicles: California Tier I, TLEV, LEV, ULEV, and ZEV;
(4) Manufacturers could choose any combination of California
certified vehicles to meet the following average NMOG fleet emission
standards:
1999--0.113 g/mi
2000--0.073 g/mi
2001--0.070 g/mi
2002--0.068 g/mi
2003 and later--0.062 g/mi
Regarding California's ZEV sales mandate, the OTC recommends that, to
the extent it must apply to satisfy section 177, it shall apply. But if
it is not required under section 177, the OTC recommends that the
``individual states within the OTC may at their option include such a
requirement and/or economic incentives designed to increase the sales
of ZEVs in the programs they adopt.''
(5) The effective date for the OTC LEV program would be January 1,
1996, allowing two vehicle model years prior to applicability of the
standards in 1999, but would not preclude earlier state implementation.
D. EPA Actions in Response to the OTC LEV Recommendation
On March 18, 1994, EPA published a notice announcing receipt of the
OTC's recommendation, as required by in section 184(c)(1). See 59 FR
12914. This notice explained EPA's process for responding to the
recommendation, identified the major elements of the recommendation,
and briefly explained EPA's intended approach at that time for
analyzing the issues. On April 8, 1994, EPA announced that the public
hearing as required by section 184(c)(1) would be held in Hartford,
Connecticut on May 2-3, 1994. See 59 FR 16811.
On April 26, 1994, EPA published a notice of proposed rulemaking
(NPRM) on the OTC recommendation. 59 FR at 21720. This notice described
the framework for EPA's action on the recommendation and provided
substantial detail regarding the issues EPA was considering in deciding
whether to approve, disapprove, or partially approve and partially
disapprove the recommendation. The NPRM described in detail the
background and context of the OTC's recommendation, as well as the
legislative history of section 184. The text of the OTC's
recommendation was reprinted as an appendix to the NPRM. It also
addressed the applicability of rulemaking procedures for EPA's action
on the recommendation. Thereafter, the notice addressed the standards
applicable to EPA's review of the recommendation, including both the
``necessary'' and ``consistent with the Act'' criteria. Regarding
necessity, the NPRM addressed the legal interpretation of this
standard, the magnitude of emissions reductions needed for attainment
in the OTR, the focus on contribution of emissions from across the OTR,
and the timing of the necessary reductions, including the relevance of
maintenance after attainment. The NPRM also explained the OTC's
recommended LEV program in detail, EPA modeling of the emissions
benefits from this program, and the auto manufacturers' FLEV
alternative. The NPRM then explained EPA's approach to considering
other alternatives to the OTC LEV program. Regarding consistency of the
OTC LEV recommendation with the Act, EPA addressed issues common to
pending litigation in New York and Massachusetts as well as other
issues regarding consistency of the OTC LEV recommendation with section
177 of the Act. Overall, EPA proposed, in the alternative, to approve,
disapprove, or partially approve and partially disapprove the OTC's
recommendation. The NPRM provided that the public comment period would
remain open until June 3, 1994, thirty days following the public
hearing.
To provide a further opportunity for interactive discussion of the
issues among the various interested parties, members of the public, and
EPA, the Agency held an additional series of three public
``roundtable'' meetings in Philadelphia, Pennsylvania, Durham, New
Hampshire, and New York City. The agenda for these meetings was
structured to generally follow the framework for analysis described in
the NPRM. EPA published a notice on June 2, 1994, providing the time,
place, and agenda for each meeting. See 59 FR 28520. The primary topics
discussed at the first meeting in Philadelphia were the proper
interpretation of the ``necessity'' standard, and the OTC LEV program
itself. The topics addressed at the second meeting in Durham included
the magnitude of reductions needed in the OTR, alternatives to the OTC
LEV program, and a proposal from the Environmental Defense Fund (EDF)
for emissions trading. At the third meeting in New York City, the
discussion continued regarding alternative approaches to achieving the
necessary emissions reductions, including the automakers' FLEV
proposal, and a proposal from Texaco, Merck, and Public Service
Electric & Gas Co. to establish a cap on NOX emissions together
with trading.
At the New York City roundtable meeting, EPA re-opened the public
comment period on the NPRM until July 30, 1994, to allow interested
parties to submit additional information in response to issues raised
in the roundtable meetings. See 59 FR 35292.
On August 4, 1994, EPA formally created a subcommittee of the Clean
Air Act Advisory Committee in accordance with the Federal Advisory
Committee Act, 5 U.S.C. App. The subcommittee will focus on issues
related to the OTC petition and provide a public forum to pursue
discussion of alternative car standards that could apply in 49 states.
The first substantive meeting of the subcommittee will take place in
Washington, D.C. on Tuesday, September 13 and Wednesday, September 14,
1994 at the Ramada Plaza Hotel. EPA published a notice of these
meetings on August 30, 1994. See 59 FR 44729.
II. Explanation of Proposed Action
EPA is proposing today to approve the OTC's LEV recommendation
based on the determination under sections 184(c) and 110(k) of the Act
that the recommended LEV or a LEV-equivalent program\2\ is necessary
throughout the OTR and that the recommended LEV program is otherwise
consistent with the Act. EPA is proposing to find under its SIP call
authority in section 110(k)(5)\3\ that the SIP for each state in the
OTR is substantially inadequate to meet the requirements relating to
pollution transport in section 110(a)(2)(D).\4\ EPA is thus proposing
to require each state in the OTR to revise its SIP to include the LEV
program within one year after the section 110(k)(5) finding is finally
issued. EPA is proposing that the SIP call allow individual OTR states
to give manufacturers the choice of complying with either the OTC LEV
requirements or--if such a program is developed--a voluntary new-
vehicle program to which automakers could voluntarily opt-in that
achieves equivalent or greater emissions reductions that are fully
enforceable and qualifies for SIP credits.\5\
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\2\A ``LEV-equivalent program'' is an alternative voluntary
federal program that would achieve emission reductions from new
motor vehicles in the OTR equivalent to or greater than would be
achieved by the OTC LEV program.
\3\Section 110(k)(5) authorizes the Administrator, whenever she
finds that a SIP for an area is substantially inadequate to mitigate
adequately the interstate pollutant transport described in section
176A or 184, or to otherwise comply with any requirement of the Act,
to require the State to revise the SIP as ``necessary'' to correct
the deficiency.
\4\Section 110(a)(2)(D) requires that SIPs contain adequate
provisions to prevent emissions within the state that contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state.
\5\EPA does not ordinarily undertake rulemaking to issue a SIP
call. EPA usually issues SIP calls by letter containing a finding of
substantial inadequacy. The basis for the SIP call and finding would
then be the subject of notice-and-comment rulemaking before the
imposition of any sanctions warranted in response to state failure
to respond to the SIP call. Here, EPA is choosing instead to
undertake notice-and-comment rulemaking regarding the basis of the
SIP call before issuing it.
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EPA is also proposing that states in the OTR be allowed, but not
required, to adopt the Zero Emission Vehicle (ZEV) sales requirement.
The OTC recommended that EPA require states to adopt the ZEV sales
requirement only if it is a necessary component of a LEV program under
section 177. EPA is proposing today that a ZEV sales requirement is not
a required component of a LEV program adopted under section 177 and
that states would therefore not be obligated to adopt it. However,
states have the discretion to include a ZEV sales requirement. States
may also include economic incentives designed to increase the sales of
ZEVs as long as such incentives are consistent with sections 177 and
209 of the Act. EPA is also taking comment on whether to adopt a ``ZEV
equivalency approach'' to require states either to impose ZEV mandates
or to impose other requirements on new motor vehicles that achieve the
evaporative NMOG and NOX benefits associated with ZEVs.
Finally, EPA is proposing regulations to determine the term ``model
year'' for purposes of section 177 and part A of title II of the Act,
as that term applies to motor vehicles. The proposed regulations
provide that model year will apply on a model-by-model basis. This
regulatory action codifies long-standing EPA guidance on this
definition and should clarify the applicability of the two-year lead-
time requirement in section 177.
III. Statutory Framework for Proposed Action
Today's proposed action is authorized by several Clean Air Act
provisions. As discussed in the NPRM, EPA has authority to approve the
OTC's LEV recommendation under section 184(c). EPA also has independent
authority to require that states submit LEV SIP revisions under
sections 110(a)(2)(D) and 110(k)(5). EPA disagrees with the comments of
the automakers that argue that EPA lacks authority to approve the OTC
LEV recommendation because the section 184 process is unconstitutional
and because an EPA SIP call requiring state regulation of emissions
from new motor vehicles violates sections 177, 202, and 209 of the
Clean Air Act.
A. EPA's Authority To Act Under Section 184
Section 184 provides a clear statutory basis for EPA's action here.
EPA described that provision in detail in the background section above,
and in its April 26 proposal. See 59 FR at 21722-24. In summary, the
OTC is a body created by operation of law under sections 176A and 184
of the Act, and is comprised of the Governor (or Governor's designee)
and an air pollution control official appointed by the Governor for
each state in the OTR, as well as the EPA Administrator (or her
designee) and the affected EPA Regional Administrators (or the
Administrator's designees). Decisions of the OTC are by majority vote
of all members other than the EPA representatives. Under section
184(c), the OTC may, after notice-and-comment, develop recommendations
for additional control measures to be applied within the OTR as
necessary to bring any area in the region into attainment by the dates
provided in subpart 2 of part D. The OTC is then to transmit such
recommendations to EPA to require such measures throughout the OTR.
Section 184 grants EPA authority to approve the recommendations and
issue SIP calls requiring that the affected states adopt the
recommended measures if EPA determines that the measures are
``necessary to bring any area in [the OTR] into attainment by the dates
provided by this subpart and are otherwise consistent with the Act.''
Upon approval, section 184(c)(5) authorizes the Administrator to issue
a finding under section 110(k)(5) that the SIP for any state to which a
requirement of the approved recommendation applies is inadequate to
meet the requirements of section 110(a)(2)(D) of the Act. The effect of
the finding is to require that any such state revise its SIP to include
the approved recommended measures within one year after the finding is
issued.
B. State Obligations and EPA's Authority To Act Under Section 110
EPA also is proposing to interpret section 110 of the Act to
provide that the Agency has independent authority for today's proposed
action under that section, apart from any authority provided by section
184. Under section 110(a)(2)(D), each state is obligated to submit SIP
provisions prohibiting sources in the state from contributing
significantly to nonattainment or interfering with maintenance in any
other state. If EPA finds that a SIP is substantially inadequate to
adequately mitigate interstate pollution transport, section 110(k)(5)
authorizes EPA to issue a SIP call to correct the inadequacy. Under
EPA's proposed interpretation, sections 110(a) and (k) allow EPA to
find at any time that a SIP is inadequate due to pollution transport.
Thus, EPA is proposing to find that, because of the transport of
pollution, OTC LEV (or LEV-equivalent) is necessary for areas in the
OTR to achieve or maintain the ozone NAAQS, and therefore, that EPA has
authority under sections 110(a)(2)(D) and (k)(5) to make a finding of
substantial inadequacy and to issue a SIP call requiring adoption of
OTC LEV. Rather than make a general finding of SIP substantial
inadequacy, EPA is proposing to find the SIPs substantially inadequate
only to the extent they do not contain the OTC LEV program. EPA is
therefore proposing to require these states to adopt the OTC LEV
program to correct the deficiency.
The 1990 Clean Air Act Amendments broadened each state's long-
standing obligation to address in its SIP the contribution of emissions
in its state to air pollution in other states.\6\ The changes expand
the provision beyond stationary sources that prevent downwind
attainment or maintenance to other sources and emissions activities
that contribute significantly\7\ to downwind nonattainment or interfere
with downwind maintenance. The expanded provision encompasses, among
other things, mobile source controls in light of the impact of mobile
sources on downwind attainment and maintenance.
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\6\Prior to 1990, section 110(a)(2)(E) required that the SIPs:
Contain adequate provisions * * * prohibiting any stationary
source within the State from emitting any air pollutant in amounts
which will * * * prevent attainment or maintenance by any other
state of any such national primary or secondary ambient air quality
standard.
In the 1990 Amendments, this provision was re-codified at
section 110(a)(2)(D) and broadened to require that a SIP submitted
under the Act shall:
Contain adequate provisions * * * prohibiting, consistent with
the provisions of this title, any source or other type of emissions
activity within the state from emitting any air pollutant in amounts
which will * * * contribute significantly to nonattainment in, or
interfere with maintenance by, any other state with respect to any
such [NAAQS].
\7\To some extent the reference to contribution merely codified
an EPA approach taken under the old section 110(a)(2)(E) and that at
least one court decision had upheld. See Air Pollution Control
District of Jefferson County, Kentucky v. EPA, 739 F.2d 1071 (6th
Cir. 1984).
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The mechanism for EPA to take action to require compliance with
section 110(a)(2)(D) is the SIP call authority provided in section
110(k)(5). That provision directs:
Whenever the Administrator finds that the applicable
implementation plan for any area is substantially inadequate to
attain or maintain the relevant [NAAQS], to mitigate adequately the
interstate pollutant transport described in section [176A] or
section [184], or to otherwise comply with any requirement of this
Act, the Administrator shall require the state to revise the plan as
necessary to correct such inadequacies.
Under section 110(k)(5), the Administrator is to notify the state of
the inadequacies and may establish reasonable deadlines, not exceeding
18 months after notice, for submission of the plan revisions.
Importantly, the Act does not address how states' attainment
demonstrations are to account for transport of ozone pollution and its
precursors.\8\ As was the case prior to the 1990 Amendments, neither
section 110 nor any other provision of the Act specifies when states
must submit SIP revisions to address the transport issue. Even with the
advent of the very specific SIP submission schedules in the subpart II
ozone program under the 1990 Amendments, no deadline is specified for
compliance with the section 110(a)(2)(D) prohibition. EPA believes it
may reasonably take action to make a finding of substantial inadequacy
as soon as EPA has a factual basis to believe that states need to act
in order to prevent the pollution transport problem from continuing
past the downwind areas' attainment deadlines. Absent a LEV-equivalent
program, EPA believes it is necessary that the states take action now
to adopt the OTC LEV program, and waiting to make this finding may
compromise their ability to achieve the reductions by the time they are
needed for timely attainment and maintenance thereafter. This action is
fully justified by the terms of section 110(k)(5). This provision
states that ``[w]henever'' EPA makes the requisite finding of
inadequacy, the state is obliged to submit a SIP revision. By its
terms, section 110(k)(5) makes clear that the timing of a SIP call
depends only on EPA's determination of inadequacy, and the section does
not contain any provision that would tie SIP calls to any particular
point on the SIP development timeline specified in sections 181 and
182.
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\8\EPA's proposed interpretation of sections 110(a)(2)(D) and
(k) is best understood in the context of the general statutory
scheme for attainment and maintenance of the ozone NAAQS. EPA's
April 26 proposal contains a substantial explanation of the
statutory program to address ozone pollution in subpart II of part D
of title I added in the 1990 Amendments to the Act. See 59 FR at
21721-22 (citing General Preamble for the Implementation of Title I
of the Clean Air Act Amendments of 1990, 57 FR 13498 (April 16,
1992)). As explained there, section 181 provides for the
classification of areas according to their degree of ozone
pollution. The greater the degree of pollution, the longer the area
has to attain and the more stringent control measures it must adopt.
The classifications and deadlines by which the areas are to attain
the ozone NAAQS are: marginal (1993); moderate (1996); serious
(1999); severe (2005 or 2007, depending on the ozone design value);
and extreme (2010).
Section 182 establishes the specific requirements and graduated
control measures applicable for each type of area. One basic
requirement is that states were to submit emissions inventories by
November 1992. A key upcoming requirement is that, by November 15,
1994, states are to have submitted, for all moderate and above
areas, demonstrations that the states' SIPs will provide for
attainment of the ozone NAAQS by the relevant attainment dates. As
described in detail in the April 26 notice and the General Preamble,
section 182 specifies a host of control requirements that states
must adopt for various areas to ensure progress toward attainment.
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Requiring submission of specific SIP revisions pursuant to section
110(k)(5) is consistent with past EPA actions. Prior to 1990 and the
enactment of section 184, EPA required states to submit specific
reasonably available control technology (RACT) control measures
applicable to stationary sources as part of a SIP call under section
110(k)(5). There, EPA's rationale was that:
Because of the relative imprecision of ozone databases and
modeling techniques * * * EPA historically has required most areas
to include in their control strategies certain stationary source
control measures that EPA believes are reasonably available, and
necessary to ensure that the SIP ``provides for'' attainment of the
ozone standard as expeditiously as practicable.\9\
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\9\For purposes of implementing the Clean Air Act after December
31, 1987 and prior to the 1990 Amendments, EPA interpreted the
statute as requiring states to develop corrective plans to attain
``as expeditiously as practicable.'' See 52 FR at 45044 et seq.
(Nov. 24, 1987); See also Delaney v. EPA, 898 F.2d 687 (9th Cir.
1990).
See 52 FR at 45062 (Nov. 24, 1987) (footnote added). EPA took this
action right away in response to a new list of areas violating the
ozone standard. See 52 FR at 45055; 53 FR 34500 (Sept. 7, 1988); 55 FR
30973 (July 30, 1990). EPA did not wait for these areas to develop
attainment plans before issuing a SIP call requiring them to adopt
specific controls necessary for attainment. Likewise, here EPA is
proposing to require submission of the OTC LEV program as necessary for
compliance with section 110(a)(2)(D).
EPA believes it has authority under section 110(k)(5) to find that
the states' SIPs are substantially inadequate for lack of the many
additional measures needed to fully achieve the emissions reductions
necessary to adequately mitigate transport, but does not believe it
should make such a broad finding of substantial inadequacy at this
time. This is because the states are on track to incorporate many
additional control measures into their SIPs for purposes of their
attainment demonstration obligations. In preparing these
demonstrations, the OTR states are actively working to adopt regional
strategies to address transport. In the ordinary course, EPA believes
it should allow states the first opportunity to address transport in
their forthcoming SIP revisions. There is still this opportunity for
states to adopt such other control measures to achieve the necessary
reductions in time for downwind states to meet their attainment
deadlines and to maintain the NAAQS thereafter.\10\ If those efforts do
not result in timely adoption of a regional strategy that will provide
the emission reductions needed for attainment and maintenance, EPA may
consider making a more comprehensive finding of SIP inadequacy insofar
as other measures in addition to LEV are lacking.
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\10\Section 181(a)(1) specified that ozone nonattainment areas
are to attain the NAAQS ``as expeditiously as practicable but not
later than'' the dates specified in that section. Based on currently
available information, EPA does not believe that the serious and
severe nonattainment areas in the OTR will be able to practicably
attain the NAAQS earlier than the dates specified in section
181(a)(1). This is because these areas will need to rely for
attainment on control measures that depend on equipment turnover
that will take time to occur. For this reason, EPA's analysis in
this SNPRM is based on the Agency's belief that the serious and
severe attainment dates are the dates specified in section
181(a)(1).
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EPA does not, however, believe it should wait to find the SIPs
inadequate insofar as they lack the LEV program. This is because the
LEV program depends on vehicle fleet turnover that will take an
unusually long time to generate the needed emissions reductions. If EPA
waits for the states' attainment demonstrations, the opportunity to
ensure that necessary emissions reductions from the LEV program are
achieved beginning in 1999 and growing thereafter may be irrevocably
lost. Any delay in beginning the fleet turnover to LEV vehicles in
model year 1999 will diminish the emissions benefits in the years
following. It is therefore necessary for the states to act now to adopt
OTC LEV, and appropriate for EPA to make a finding of substantial SIP
inadequacy now with respect to that program.
In sum, EPA is proposing to find now that the OTR states' SIPs are
substantially inadequate insofar as they do not contain the OTC LEV
program. This is because EPA believes that the states need to adopt
this program now to mitigate pollution transport adequately by the
attainment deadlines for areas in downwind states.
EPA is proposing to set a one-year deadline under section 110(k)(5)
for OTC LEV SIP submissions. Even though section 110(k)(5) authorizes
EPA to allow up to 18 months, EPA believes a one-year deadline is
appropriate here. EPA expects the one-year deadline to fall at the end
of calendar year 1995. To ensure implementation of the OTC LEV program
in model year 1999, and given the two-year lead-time requirement of
section 177, states must adopt the program before January 2, 1996. If
states were given more than about one year to adopt the LEV program,
they could not be assured of implementing it for all 1999 model year
vehicles. Since EPA is proposing to conclude that 1999 model year
implementation is necessary to achieve the necessary emissions
reductions, it is important that the SIP submission deadline fall in
time to meet the two-year lead-time requirement.
C. Constitutional Validity of Section 184 Process
The automakers' comments on EPA's April 26 proposal have raised a
number of arguments that the Agency's proceedings under section 184 are
unconstitutional.\11\ The Natural Resources Defense Council (NRDC) has
submitted a response to these constitutional arguments.\12\ EPA does
not believe the arguments that section 184 is unconstitutional have
merit. And in any case, given EPA's independent authority under section
110(k)(5), any constitutional question regarding the validity of
section 184 would not affect the validity of the action proposed today.
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\1\1See Letter from Kenneth W. Starr on behalf of the American
Automobile Manufacturers' Association and the Association of
International Automobile Manufacturers to Assistant Attorney General
Walter Dellinger (July 20, 1994).
\1\2See Letter from David Driesen on behalf of the Natural
Resources Defense Council to Walter E. Dellinger, III (Aug. 22,
1994).
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The automakers argue that Congress, through section 184, is
commandeering the legislative processes of the OTR states by directly
compelling them to take certain actions. The automakers argue that this
violates principles of federalism and the Tenth Amendment to the
Constitution. The Supreme Court has interpreted the Tenth Amendment to
mean that Congress cannot coerce states in their sovereign political
capacity to regulate private conduct.\13\ Section 184 is fully within
the scheme of ``cooperative federalism'' that the courts have confirmed
is consistent with constitutional requirements.\14\ As with many other
federal programs, section 184 is simply an unremarkable case under the
Clean Air Act's SIP program where Congress has provided incentives to
the states as a method of influencing their policy choices. Congress
may attach conditions on the receipt of federal funds (as long as the
conditions bear some relation to the purpose of the federal spending),
to influence states' legislative choices. And where Congress has the
authority to regulate private activity under the Commerce Clause, the
Court has recognized Congress's power to offer states the choice of
regulating an activity according to federal standards or having state
law pre-empted by federal regulation.\15\ Here, Congress provided
incentives to the states by placing conditions on highway funding; by
allowing states to apply a less stringent ``offset ratio'' for new
stationary pollution sources; and by allowing states to themselves
impose regulations rather than having the federal government implement
the program the state chose not to implement. See sections 179 (highway
and offset sanctions) and 110(c)(1) (federal implementation plans).
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\1\3See New York v. United States, 120 L.Ed.2d 123,139-44 (1992)
(discussing principles of federalism and limitations on federal
power to compel states to act in their political capacity under the
Tenth Amendment).
\1\4See Hodel v. Virginia Surface Mining & Reclamation Ass'n,
Inc, 452 U.S. 264, 289 (1981).
\1\5See New York v. United States, 120 L.Ed.2d at 144-45. See
also Brown v. EPA, 521 F.2d 827, 840 (9th Cir. 1975) (state may not
interfere with such regulation of air pollution sources as
Administrator may undertake pursuant to Clean Air Act and Congress
has power to authorize Administrator to obtain reluctant state's
consent by conditioning federal expenditures within state on
consent).
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The automakers also argue that section 184 constitutes an
unconstitutional delegation of federal authority to the OTC and
violates the Appointments Clause. They argue that through section 184
Congress delegated legislative authority outside the federal
government, or authorized state officials composing the OTC to exercise
significant federal executive authority that the Constitution commands
only federal officials appointed consistent with the Appointments
Clause may exercise. EPA does not, however, believe that state
officials exercise ``significant authority'' pursuant to federal law in
this context. EPA welcomes comment on the automakers' constitutional
arguments and the response from NRDC that are in the docket.
D. Consistency of EPA Action With Limitations on Authority Under
Sections 177, 202 and 209 of the Act
EPA's proposed action is fully consistent with both the letter and
spirit of sections 177, 202 and 209 of the Act. These three provisions
make it clear that Congress wanted auto manufacturers to have to meet
only two types of standards--federal standards and California
standards. Section 177 specifically contemplates that California's
standards may apply outside California. Approving the OTC's
recommendation is doing no more than requiring states, based on need,
to exercise authority given to them by Congress. EPA is authorized to
take this action under sections 184 and 110. EPA disagrees with those
commenters that claim sections 177 and 202 preclude EPA from approving
the OTC's recommendation.
Requiring adoption of the LEV standards in the OTR does not change
any current federal standard, so it is not prohibited by section 202.
Section 202(b)(1)(C) explicitly precludes EPA only from exercising its
authority under section 202 to modify certain specified standards prior
to model year 2004--it is not a general prohibition of all EPA action
relating to the control of emissions from motor vehicles. Thus, EPA may
not modify certain mandatory federal standards applicable nation-wide
to motor vehicles until model year 2004. However, today's proposal
requires only that states adopt certain programs applicable to motor
vehicles in such states, as states are permitted to do under section
177. EPA is not proposing to rely on section 202 to require the LEV
standards, so the prohibition in 202(b)(1)(C) is irrelevant.
The automakers have argued that granting the OTC petition violates
section 177 because EPA is making a choice (whether states should adopt
California standards) that section 177 reserves to the states. This
misconstrues the nature of section 177 and fails to read section 177
together with section 110(k)(5) or section 184. Section 177 provides an
exception to the general prohibition in section 209 against states
(other than California) adopting motor vehicle emission standards.
Section 177 thus provides states the discretion to adopt controls that
section 209 would otherwise preclude. Sections 110(k)(5) and 184 allow
EPA to require states to take actions that would otherwise be left to
their discretion. The language of section 177, that the states'
authority applies ``[n]otwithstanding section 209,'' makes clear that
Congress intended to provide an exception to section 209, not bar EPA
requirements under sections 110 or 184.
IV. Basis for Approval of OTC LEV Recommendation.
A. Necessity
1. Legal Interpretation of Necessity
EPA's April 26 proposal contains an extensive discussion of the
Agency's approach to interpreting the ``necessary'' standard under
section 184(c), and includes several options. See 59 FR at 21725-27.
Today, EPA is proposing its interpretation of this standard. Section
110(k)(5) also includes a ``necessary'' standard providing that, upon
an EPA finding of SIP inadequacy, the Agency is to require that the
state submit SIP revisions that are ``necessary'' to correct the
inadequacy. EPA is proposing that, in this particular case, the
``necessary'' standard under section 110(k)(5) be interpreted the same
as the ``necessary'' standard under section 184(c).
If EPA approves or partially approves the recommendation, section
184(c)(5) provides that EPA is to issue a finding that the SIPs for the
states to which an approved requirement applies are inadequate to meet
the requirements of section 110(a)(2)(D). Section 110(a)(2)(D) provides
that SIPs are to contain adequate provisions prohibiting emissions
within the state that will ``contribute significantly to nonattainment
in, or interfere with maintenance by, any other state.''
EPA is proposing that contributing emissions are significant under
section 110(a)(2)(D) at least where controlling such emissions is
necessary to bring any downwind area into attainment. EPA also is
proposing that emissions interfere with downwind maintenance under
110(a)(2)(D) at least where controlling such emissions is necessary for
downwind areas to maintain the NAAQS.\16\ EPA is further proposing to
interpret section 184 to mean that the Agency may approve the OTC's
recommendation if the measures are necessary for any area in the OTR to
attain or maintain the NAAQS.
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\16\EPA is not addressing in this rulemaking whether, under
section 110(a)(2)(D), a state's emissions may ``contribute
significantly'' to nonattainment or ``interfere with maintenance''
in another state when controlling the upwind state's emissions is
not strictly necessary but nevertheless would be helpful to downwind
states' efforts to attain and maintain the NAAQS.
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Section 110(k)(5) provides that EPA may issue a SIP call whenever
it finds a SIP for an area to be substantially inadequate to attain or
maintain the NAAQS, to mitigate adequately interstate transport under
sections 176A or 184, or to otherwise comply with any requirement of
the Act. EPA is proposing to interpret section 110(k)(5) to mean that
it may issue a SIP call based on a finding that a SIP does not comply
with the requirement of the section 110(a)(2)(D) to address adequately
the effect of pollution transport on downwind attainment and
maintenance. EPA may require that the states revise their SIPs to
include any particular measure that is necessary to comply with section
110(a)(2)(D).
EPA believes that the ``necessary'' standard requires the Agency to
evaluate the emissions reductions needed, and then whether reasonable
and practicable alternative measures could be adopted instead of the
OTC LEV program to achieve the needed reductions. The role of
``alternatives'' in EPA's analysis has often been confused in the
course of EPA's hearings and round-table proceedings. EPA believes two
distinct kinds of alternatives are relevant to necessity.
First, an alternative program to achieve the same emissions
reductions from the same emissions sources may render the OTC LEV
program unnecessary. An example is useful to illustrate this point. If
EPA or the states were (hypothetically) to mandate that all new motor
vehicles be ZEVs, then an OTC LEV program would not be necessary--it
would not make sense (and would be unnecessary) to mandate OTC LEV
tailpipe standards for a new vehicle fleet consisting entirely of cars
without tailpipes. This would be true regardless of what emissions
reductions are needed overall and what other measures are available to
achieve the needed reductions. It is in this sense that EPA believes
that OTC LEV would be unnecessary if there were another program
available to achieve emissions reductions from new motor vehicles
comparable to, or greater than, those from OTC LEV. Under this aspect
of the analysis, the ability of the alternative to achieve reductions
sufficient to comply with section 110(a)(2)(D) is not relevant.
EPA is aware of alternative programs that currently are under
discussion by various interested parties. EPA believes that some
alternative programs could be preferable to simply approving the
petition. Such alternatives focus on a 49-state approach, whereby auto
manufacturers would commit to produce cars with a cleaner internal
combustion engine (compared to current federal standards) nationwide.
Incentives for advanced technology and zero emission vehicles are also
part of the discussion. As these alternatives are developed and
modeling of associated benefits is undertaken, EPA will add the
analyses to the docket and publish a notice of data availability in the
Federal Register.
EPA believes that a 49-state low emission vehicle approach could be
better than the OTC LEV program in a number of respects. First, EPA
believes that a 49-state program could have significant environmental
benefits as compared to the OTC LEV program. A 49-state approach could
benefit the OTR by reducing incoming pollution from other states--both
transported air pollution and pollution from the migration of non-OTR
vehicles into the state (as a result both of tourism and relocation). A
49-state approach would also help non-OTR states by providing NOX
and VOC reductions and other air quality benefits. EPA also believes
that an alternative could provide equal or greater impetus to
development of advanced technology. Second, the auto industry would
benefit from uniform markets. See discussion in Section IV.A.2.(d) for
a discussion of the benefits of uniform markets. The auto industry
plays a vital role in our economy. Reducing the economic impacts of
EPA's actions, without reducing environmental benefits are matters of
concern to the Agency.
Once these 49-state alternatives are further developed, EPA intends
to complete a qualitative and quantitative comparison of their
environmental benefits relative to the OTC LEV program. The Agency will
then publish, as soon as possible, a Federal Register notice setting
forth the alternative and taking comment on issues it raises.
The options for developing an alternative program are somewhat
limited. As explained above, section 202 bars EPA modification of the
Tier I standards prior to model year 2004, and the states cannot, under
section 177 and 209, adopt standards other than the California
standards. Thus, the only alternative method for requiring vehicle
manufacturers to achieve reductions in tailpipe emissions from new
light-duty cars and trucks is a program in which manufacturers
voluntarily agree to be bound by more stringent standards. This concept
and the legal basis for it are discussed in greater detail in section V
of this notice, below.
It is this first kind of alternative that underlies the basis for
EPA providing in its SIP call for the possibility that an alternative
program may be developed that would achieve emissions reductions from
new motor vehicles that are comparable to or greater than those from
OTC LEV. If such a program were developed, it would not be necessary to
apply the OTC LEV program to vehicles subject to the alternative
standards. This concept and the legal basis for it are discussed in
greater detail in section V of this notice, below.
Second, the availability of alternative measures that are
sufficient to achieve the necessary reductions without further
reductions from new motor vehicles or trucks could likewise render the
OTC LEV program unnecessary. The question here is not whether EPA will
mandate such other measures in response to the OTC's recommendation.
The OTC did not recommend such other measures and; for the reasons
described in section III.B., EPA is not ready to consider mandating
them under sections 110(k)(5) and 110(a)(2)(D) at this time. Rather,
the question is whether such other measures are available so that it is
unnecessary for EPA to require the OTC LEV program. As EPA explained in
its April 26 proposal:
To the extent more reductions will be needed even with the LEV
program [to mitigate significant contribution to nonattainment in
the OTR], other measures that address that shortfall would not, for
that reason alone, qualify as ``alternatives'' to LEV. Rather, other
measures might qualify as ``alternatives'' only if such other
measures, singly or in combination, generate enough reductions to
fill the entire shortfall needed without LEV.
59 FR at 21734.
EPA has established a precedent for interpreting the ``necessary''
standard that is consistent with this approach. EPA's interpretation is
guided by its approach to interpreting that term (ultimately codified
by Congress), under section 211(c)(4)(C) of the Act, as explained in
the April 26 proposal. See 59 FR at 21734. That interpretation is
important to evaluating the availability of alternatives sufficient to
achieve the necessary emissions reductions. Under section 211(c)(4)(C),
controls are necessary if they would still be needed after adoption of
all other reasonable and practicable measures. That is, EPA would
consider alternatives available if they are comparatively reasonable
and practicable. And the reasonable and practicable alternatives must
be sufficient to achieve the necessary reductions in order to conclude
that the proffered control is unnecessary.17
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\1\7EPA also suggested in its April 26 proposal a different
possible approach to the ``necessary'' standard. Under that
approach, EPA might consider as necessary any additional control
measures that contribute to attainment, as long as measures
specifically required by the Act or that are otherwise in place are
insufficient to achieve attainment. That is, as long as the States
in the OTR still need more reductions to address the transport
problem, then EPA would consider the OTC LEV (or LEV-equivalent)
program necessary. Assessment of alternative control measures would
not be relevant. See 59 FR at 21725. While EPA is not proposing here
to adopt that approach, EPA notes that the facts showing that the
OTC LEV (or LEV-equivalent) program is necessary under the approach
discussed in the text would, a fortiori, be sufficient to show that
the OTC LEV (or LEV-equivalent) program is necessary under this
different approach.
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Of course, whether potential alternative measures are ``reasonable
and practicable'' as well as sufficient to achieve the necessary
reductions may not be self-evident. In its April 26 proposal, EPA
described approaches to factual uncertainty and other policy
considerations that could influence these determinations. See 59 FR at
21726-27. As with its decisions under section 211(c)(4)(C), here EPA
does not consider drastic measures such as gas rationing, or plant
shutdowns to constitute reasonable alternatives to the OTC LEV program.
Congress could not have intended that EPA should consider such drastic
alternatives, since such alternatives would clearly be adequate to
achieve any necessary reductions, and hence no proffered measure would
ever be necessary. This would essentially read section 184 out of the
Act. Further, EPA believes cost-effectiveness of potential alternatives
is a criterion in evaluating reasonableness and comparing other
measures to the measure proffered as necessary. But the comparison of
the reasonableness and practicability of various measures, including
what is ``too drastic,'' is a complicated policy determination
requiring consideration of cost and public acceptance, and need not be
supported by a highly specific technical record. See 59 FR at 21726.
While EPA believes that it is important to assess the sufficiency
of reasonable and practicable alternatives, states have the continuing
opportunity to come forward to adopt sufficient alternatives and prove
that the OTC LEV program indeed turns out to be unnecessary. EPA does
not believe states would seriously entertain unreasonable or
impracticable measures to adopt in place of OTC LEV in order to achieve
the necessary emissions reductions. Nonetheless, EPA recognizes that
states which do in fact adopt such other measures sufficient to comply
with section 110(a)(2)(D) might thereby render the OTC LEV program
unnecessary. EPA therefore is proposing that it would retain authority
under the SIP call to change its necessary determination and withdraw
its SIP call for those states that adopt controls sufficient to comply
with section 110(a)(2)(D), including those controls EPA might now
believe to be unreasonable or impracticable. As states in the northeast
have not yet adopted sufficient measures proving that the LEV program
(or LEV-equivalent) is unnecessary, EPA believes that it should
evaluate whether sufficient reasonable and practicable alternatives
exist based on the best current information and policy judgment.
EPA also discussed in its April 26 proposal various approaches to
factual uncertainty regarding issues such as cost and the amount of
reductions needed for compliance with section 110(a)(2)(D). There, EPA
raised the question of whether the statutory structure, together with
the legislative history, support giving substantial weight or
``deference'' to the OTC's recommendation that the OTC LEV program is
necessary for attainment in the OTR. EPA suggested that it could
reasonably interpret the provisions to mean that EPA is to start with a
presumption of approving the OTC's recommendations and approve the
recommendation unless EPA found that the recommended measures were
unnecessary. EPA pointed to floor statements in the conference debate
in the Senate regarding section 184 that EPA bears a ``heavy burden''
to ``demonstrat[e] that the additional control measure(s) is not
necessary.'' See 59 FR at 21726 (quoting Baucus-Chafee Statement of
Managers and Senator Lieberman). EPA's public hearings and round-table
discussions reflected some confusion about the meaning of ``deference''
to the OTC. EPA questions whether there is any basis under any
provision of the Clean Air Act to relieve the Agency of an obligation
to consider independently all of the factual information available in
determining whether the OTC LEV program is necessary.
In this case, EPA believes the facts affirmatively show that this
measure is indeed necessary. In addition, EPA believes that its general
policy of prudence in making decisions regarding highly complex
scientific issues affecting public health should apply to its analysis
here. EPA believes this policy is reasonable and permissible in
addressing what is ``necessary'' to achieve and maintain the health-
based ambient air quality standard for ozone.18
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\1\8Courts have recognized that scientific evidence is
cumulative, and that EPA has discretion to take an environmentally
protective approach to protecting public health and welfare. In
Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.), cert. denied, 426 U.S.
941 (1976), the court of appeals considered EPA's action to regulate
the lead content of gasoline on grounds that emissions ``will
endanger'' the public health or welfare under prior section
211(c)(1)(A). There, the court recognized that EPA's decision may be
based on ``the inconclusive but suggestive results of numerous
studies.'' Ethyl, 541 F.2d at 38. Further, the court found that the
Administrator appropriately acted ``conservatively'' based on
``suggestive'' evidence to make a ``prudent'' determination. Ethyl,
541 F.2d at 39. EPA believes such prudence is likewise appropriate
here, where the public health and welfare is at stake.
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EPA believes its general policy in favor of protecting public
health and welfare is particularly appropriate to evaluate whether a
particular measure is needed to solve an inter-state problem. EPA
believes that pollution transport and the states' obligations under
section 110(a)(2)(D) to control emissions that would contribute to
nonattainment or interfere with maintenance downwind are critical to
the integrity of the states' attainment plans under title I. Especially
in a region such as the Northeast, where extensive transport makes
states inter-dependent on their collective pollution control programs,
EPA believes that its general policy should apply to make sure that
states adopt controls necessary for other states' attainment. These
states depend for their own citizens' health on the actions of upwind
states that may lack an incentive to bear the costs of protecting
downwind citizens' health. In such circumstances, EPA's general policy
of prudence is particularly appropriate in evaluating what is necessary
in the upwind states to protect health downwind. Moreover, these
states' independent efforts (and their residents' support for them) to
address emissions within their own borders may depend significantly on
the confidence these states have that the other states in the region
are acting as ``good neighbors.''
High officials closely involved in the SIP planning process in
these states have now come to EPA, after extensive public processes of
their own, believing a particular measure is necessary for them and
their neighbors to do their part to address a substantially collective
public health problem. These officials, as the chief state officers
responsible for ensuring state compliance with the Clean Air Act, are
the closest to the air quality planning information in the states.
Whether EPA responds under section 184 or by exercising its authority
under section 110(k)(5), EPA believes that it makes policy sense to
apply its general approach of prudence in favor of environmental
protection to scientific uncertainties. EPA believes sound policy
dictates that it has a responsibility to do so. The legislative history
reviewed in EPA's April 26 proposal reflects that at least some in
Congress intended that EPA follow this approach.
To the extent EPA's analysis reveals that other measures are
reasonable and practicable but are not sufficient to achieve the
necessary reductions, EPA would have authority directly under section
110(k)(5) to require the states to adopt those measures, too. But, for
the reasons described above in section III.B., EPA does not believe it
need exercise its authority in this manner at this time. Of course,
states will need to adopt many of these measures as part of their
attainment demonstrations due November 15, 1994, and this may go a long
way toward these states' contribution to downwind nonattainment or
their interference with downwind maintenance. But EPA believes that it
should require this measure now, in light of the states'
recommendation, the time needed to yield emissions benefits (due to the
lead-time requirement and time for fleet turnover), and the need for a
coordinated decision to adopt the program for the entire region
collectively. Since it is both necessary to address the transport
problem and very difficult for the states to adopt the OTC LEV program
without assurance that their neighbors that need to will also do so,
the Agency believes that there is adequate reason to act now to require
this measure under sections 184 and 110(k)(5).
EPA recognizes that, under this approach, certain states would have
to adopt the OTC LEV program even though they did not vote to make this
recommendation to EPA. In its April 26 proposal, EPA questioned whether
the ability of certain states to override the wishes of others by vote
could militate against an environmentally conservative approach to
uncertainty. EPA does not view the objection of certain states as
justifying a different approach. Rather, EPA currently believes that
the weight of a recommendation from high officials in a majority of the
states justifies an environmentally conservative decision regarding
whether the measure in question is necessary. While the minority states
might understandably wish to reserve their options for compliance,
their adopted attainment demonstrations are due in a matter of two
months, and the work that those states have accomplished toward
assembling their attainment plans has not convinced EPA that the OTC
LEV (or LEV-equivalent) program will be unnecessary to address the
transport problem. As noted above, EPA believes that even if these
officials presented this recommendation without invoking the formal
section 184 process, EPA would appropriately take an environmentally
protective approach to deciding whether to issue a SIP call for the
measure directly under section 110(k)(5). Moreover, as discussed above,
EPA is proposing to explore the possibility that alternatives will
become available and adopted so that states would no longer need the
OTC LEV program, or that the states may demonstrate that they have
adopted sufficient measures without LEV (potentially including those
that EPA might otherwise dismiss as unreasonable or impracticable) to
comply with section 110(a)(2)(D).
2. Analysis of Need for OTC LEV (or LEV-Equivalent) Program
(a) Magnitude of Reductions Needed for Attainment in 2005.
i. General Conclusions.
The first step in EPA's analysis of whether the OTC LEV (or LEV-
equivalent) program is needed is to consider what emissions reductions
are necessary to bring all areas into attainment. Based on EPA's
region-wide modeling analyses, it is clear that very large reductions
in emissions of both NOX and VOC are needed for the serious and
severe areas of the OTR to come into attainment. Based on the best
analysis available to EPA to date, NOX emission reductions on the
order of 50% to 75% are needed throughout the OTR to reach attainment
with the ozone NAAQS. VOC emissions reductions on the order of 50% to
75% are needed for attainment particularly in the East Coast urban
corridor. These estimates are based on modeling analyses that used a
1985 emissions baseline. Updated inventory information indicates the
1985 inventory underestimated base case NOX and VOC emissions.
Therefore, EPA believes that at least a 50% to 75% reduction in
emissions is necessary from the 1990 baseline.\19\ Given EPA's belief
that in addressing areas of factual uncertainty here it should err on
the side of environmental protection, EPA requests comments on whether
reductions from reasonable and practicable measures should be in the
middle of these ranges before EPA would determine that the OTC LEV (or
LEV-equivalent) program is unnecessary.
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\1\9The Clean Air Act requires states to develop 1990 base year
emissions inventories of actual emissions on which to base planning
requirements, including attainment demonstrations. Therefore, the
remainder of the document will generally refer to emissions
reductions required or obtained from a 1990 emissions inventory. EPA
is relying on the above-noted relationship between the 1985 and 1990
inventory to draw conclusions about necessary emissions reductions
from the 1990 baseline inventory.
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EPA has reached these conclusions based on modeling analyses of the
impact of emissions reduction strategies for this region. For purposes
of its modeling studies, EPA considered the impact of various
strategies in the year 2005. Focusing first on the impact in 2005 is
reasonable because by then all control measures explicitly mandated in
subpart 2 of part D of the Act will be in place. EPA can thereby
analyze more precisely what reductions beyond those already explicitly
required will be needed. Since two of the three core severe
nonattainment areas in the urban corridor along the East Coast from
Washington D.C. to Boston have an attainment deadline of 2005, it is by
this date that the Clean Air Act mandates severe area controls to be in
place. These areas are the Baltimore and Philadelphia areas. The New
York-New Jersey-Connecticut severe area has the slightly later
attainment deadline of 2007 due to its higher ozone design value. EPA
also focused on this year in its studies in part because the OTC's
modeling committee asked that EPA do so.
It is important to note, however, that for purposes of this step in
the analysis, the year that is the subject of the study does not affect
the magnitude of necessary emissions reductions. This is because the
precise question in this step is what reductions are needed from a 1990
baseline emissions inventory in order for each of the nonattainment
areas in the OTR to come into attainment. For purposes of this
analysis, EPA assumes that all growth in emissions since 1990 must be
neutralized in addition to achieving the requisite emissions reductions
from the 1990 baseline. That is, EPA's conclusion is that emission
reductions on the order of 50% to 75% in VOC (primarily in the urban
areas and NOX (regionally) are needed in the OTR to reach
attainment, and that growth in emissions since 1990 must be neutralized
in addition to the 50% to 75% reductions. Of course, in later years the
amount of growth that must be neutralized on top of the 50% to 75%
reductions will increase. But the conclusion that 50% to 75% reductions
from the 1990 baseline are needed remains constant over time.
ii. Analytical Modeling Tools.
Two basic atmospheric modeling tools are used to analyze the need
for and effectiveness of various emissions reduction strategies to
attain the ozone NAAQS. These are both photochemical grid models into
which information regarding the atmosphere and emissions is input for
subunits in a grid that encompasses a particular area, or ``domain.''
The model is designed to measure the impact of changes in emissions
input for each subunit on the grid. An important aspect of the models
is the set of assumptions regarding the air that enters the modeling
domain at its boundaries, commonly referred to as ``boundary
conditions.''
The two basic models used to analyze ozone pollution in the
northeast United States are the Urban Airshed Model (UAM) and the
Regional Oxidant Model (ROM). The key differences between these models
are the size of the modeling domain and the resolution of information
about subunits in the photochemical grid. The resolution depends on the
size of the overall domain. As their names indicate, the UAM is an
urban scale model that yields more precise information about particular
urban areas, and the ROM is a broader regional model that is more
useful for assessing regional impacts. The UAM generally involves a
modeling domain on the order of 200 km on a side, with a horizontal
resolution of five km or better and five or more vertical layers.\20\
EPA is using a ROM to analyze the domain encompassing the United States
east of 99W longitude, covering approximately the eastern half of the
country. Horizontal resolution is approximately 18 km, with three
vertical layers considered.
---------------------------------------------------------------------------
\2\0Grid models, such as the UAM and the ROM, entail
superimposing a 3-dimensional box over the area to be modeled. This
box is subdivided into grid cells. The model predicts average
concentration within each cell for each hour of a simulation. The
spatial resolution possible with a model is defined by the size of
these individual grid cells. The models do not allow one to draw
conclusions about concentrations averaged over areas which are
smaller than the size of the individual grid cells.
---------------------------------------------------------------------------
The UAM is particularly useful to demonstrate with fine resolution
whether urban areas will achieve attainment using a particular
emissions reduction strategy, based on assumptions about the boundary
conditions of the UAM domain. The ROM is useful for assessing the
relationship between UAM domains and what is happening in the broader
region to determine appropriate boundary conditions for UAM modeling.
The function of ROM applications for developing attainment strategies
is to provide boundary conditions for the UAM analyses. Essentially,
boundary conditions are estimates of the amount of ozone and ozone
precursors entering each of the UAM domains from upwind. Boundary
conditions reflect the cumulative effect of pollutant transport as well
as control measures and growth applied in upwind areas. Upwind areas
for purposes of the ROM analysis include upwind UAM domains, portions
of the OTR outside the UAM domains, and the eastern U.S. outside the
OTR. The boundary conditions resulting from these ROM simulations serve
as an important input to the states' UAM analyses.
Modeling using the UAM and ROM tools is an iterative process.
First, UAM yield information about the strategies and impacts of
strategies in smaller areas. The information from these models can then
be fed into the ROM to yield information about the collective impact of
the UAM assumptions throughout the region. The strategies in each area
impact other areas downwind as the air moves from one area to another.
The ROM then yields information about the appropriate boundary
conditions to be input into the next round of each area's UAM. Each
iteration in this process yields more refined information about the
effect of strategies in the UAM domains and the appropriate boundary
conditions for each UAM domain. In sum, the UAM is useful to assess the
precise strategies in isolated nonattainment areas; the ROM is useful
to assess the relationship between areas in light of their
interdependence because of a common transported air mass throughout the
region and to provide boundary conditions for further UAM modeling.
The Clean Air Act requires that the states submit modeled
demonstrations of attainment to EPA on or before November 15, 1994. As
described, states will be using the UAM with input from the ROM
applications to make these modeled demonstrations, though none have yet
been completed and submitted to EPA for review. In the OTR, the states
will model four urban areas using the UAM: (1) New England; (2) New
York City/Connecticut/northern New Jersey; (3) Philadelphia/New Jersey/
Maryland; and (4) Baltimore/Maryland/Washington D.C. These urban areas
are so close together and so inter-dependent that each of these four
UAM modeling domains overlaps portions of at least one of the other
four. EPA does not expect the states to complete UAM modeling analysis
for the four urban areas that demonstrates that a particular control
strategy will achieve attainment (relying on ROM applications through
the iterative process discussed above), until well after November 1994.
EPA's analysis of the need for the LEV program relies principally on
several past and ongoing ROM studies. While EPA could use the complete
UAM studies to refine the analysis, EPA believes ROM is the more
important modeling tool for assessing transport. EPA further believes
that certain conclusions can now be drawn about the outcome of the UAM
analyses with respect to transport.
The Agency has used the ROM over the past several years to study
national policies and strategies for reducing ozone. Because of the
large domain subject to a ROM analysis, this tool is well-suited for
assessing effects of regional strategies on regional transport of ozone
and its precursors. ROM provides vital information for the states to
consider in choosing sets of individual measures within each
nonattainment area for purposes of their attainment demonstrations. EPA
has applied ROM in various studies since 1988 to assess regional
effects of control strategies. For purposes of assessing the amount of
reductions needed to attain the ozone NAAQS throughout the OTR, EPA
reviewed the results of these ROM studies. These studies analyzed
impacts of various control strategies using data from the actual ozone
exceedance episode in July 1988. During these particular episodes, the
ROM model predicted that two sub-regions in the OTR would have hourly
ozone concentrations over 180 ppb (50% over the ozone NAAQS), even
after application of the control measures specifically mandated in the
Act.
In EPA's ROMNET study,\21\ except for the New York metropolitan
area, scenarios with predicted ozone levels below the NAAQS involved
NOX reductions on the order of 60%-70% below 1985 levels. EPA's
conclusions regarding necessary NOX reductions varied from city to
city, depending on whether VOC or NOX was the limiting factor in
ozone production near the city. VOC tends to be the limiting factor in
urban areas, where there are less biogenic VOC emissions. In rural or
suburban areas where biogenic emissions of VOC from vegetation are
greater, NOX tends to be the limiting factor. NOX reductions
in the rural and suburban areas can be important even where such areas
are not themselves violating the NAAQS, because the ozone and ozone
precursors from these areas are transported into the nonattainment
areas, exacerbating conditions in the nonattainment areas. EPA
concluded that VOC reductions on the order of 70%-90% from 1985\22\
levels would be needed to reduce ozone levels to comply with the level
specified in the NAAQS in several of the large cities along the East
Coast urban corridor. Based on this and the other studies discussed
below, EPA believes that NOX controls are needed regionally, while
VOC reductions are critical particularly in and near the urban areas in
the region.
---------------------------------------------------------------------------
\21\See Regional Ozone Modeling for Northeast Transport
(ROMNET), EPA Doc. EPA-450/4-91-002a (June 1991).
\22\Both the ROMNET study and another study (the matrix study),
discussed later, used the 1985 National Acid Precipitation
Assessment Program (NAPAP) regional emissions inventory as the
baseline. The 1985 NAPAP inventory of NOX and VOC was the only
regional inventory available at the time for use in these studies.
---------------------------------------------------------------------------
Another ROM study, called ``the matrix study,''\23\ analyzed the
impact of uniform reductions in NOX and VOC emissions throughout
the eastern half of the United States. This analysis indicates that,
for the July 1-15, 1988 episode for the OTR portion of the modeling
domain, emission reductions for both NOX and VOC on the order of
50% to 75% from 1985 levels are needed to reduce maximum ozone levels
in the OTR portion of the modeling domain to the level specified in the
NAAQS.
---------------------------------------------------------------------------
\23\See Chu, S.H., E.L. Meyer, W.M. Cox, R.D. Scheffe, 1993,
``The Response of Regional Ozone to VOC and NOX Emissions
Reductions: An Analysis for the Eastern United States Based on
Regional Oxidant Modeling,'' Proceedings of U.S. EPA/AWMA
International Specialty Conference on Tropospheric Ozone:
Nonattainment and Design Value Issues, AWMA TR-23, pp.305-311
(1993).
---------------------------------------------------------------------------
While these studies used a regional 1985 emission inventory as the
baseline, it is the 1990 emissions baseline that is of particular
concern in determining whether LEV is necessary for attainment. Under
the Act, states are required to submit comprehensive 1990 inventories
of NOX and VOC emissions upon which to base their air quality
planning, including their attainment demonstrations. EPA believes that,
based on current, recently updated information, both the matrix and
ROMNET studies relied on assumptions about the emissions inventory that
underestimated base case VOC and NOX emissions.\24\ This is
because inventories used in both the matrix and ROMNET studies were
based on older estimates compiled for the National Acid Precipitation
Assessment Program (NAPAP).\25\ For example, EPA believes that
inventory assumptions in the matrix study underestimated 1990 baseline
emissions in the OTR for NOX by 16% and VOC by about 38%.
Correcting the inventory assumptions in the matrix study should
therefore result in modeling results that reductions in NOX and
VOC emissions needed for attainment throughout the OTR are even greater
than described above. EPA does not have a precise comparison between
the current inventory information and the assumptions relied on in the
ROMNET study, but a comparable difference is likely based on the
difference between the current recently updated inventory and the older
NAPAP-based inventory used in ROMNET. Based on these ROM modeling
studies and analysis of 1985 and 1990 emission inventory assumptions,
EPA concludes that, at a minimum, 50% to 75% reductions in NOX
throughout the OTR and VOC in and near the urban areas emissions will
be necessary for regional attainment from the 1990 baseline.
---------------------------------------------------------------------------
\24\See E.H. Pechan & Associates, Regional Interim Emission
inventories (1987-1991), Volume I: Development Methodologies,
Prepared under EPA contract 68-D2-159, Work Assignment No. 13, (May
1993).
\25\Saeger, M., J.Langstaff, R.Walters, L.Modica, D.Zimmerman,
D.Fratt, D.Dulleba, R.Ryan, J.Demmy, W.Tax, D.Sprague, D.Mudgett,
A.Werner. The NAPAP Emissions Inventory (Version 2): Development of
the Annual Data and Modeler's Tapes, EPA Doc. No.600/7-89-012a.,
U.S. EPA, Research Triangle Park, NC (1989).
---------------------------------------------------------------------------
(b) Contribution Analysis.
The second step in EPA's analysis is to assess the degree to which
transport contributes to the ozone problem in the OTR. As explained in
the April 26 notice, EPA believes that the ``need'' for additional
measures in the OTR in order to comply with section 110(a)(2)(D)
focuses primarily on the states' need to adopt the program in question
for the benefit of areas downwind. See 59 FR at 21728. Of course, the
states retain full authority to adopt the LEV program under section 177
for their own benefit without EPA approval. As explained below,
analysis of what reductions are needed for any specific area to avoid
causing ozone exceedances downwind is an enormously complicated task
that depends on regional, urban, and wind trajectory modeling
information and monitoring data. Further, the analysis of the controls
necessary in an upwind area depends on the controls assumed in the web
of downwind areas and other upwind areas. In dealing with these
complications and uncertainties, EPA emphasizes that the lead-time
together with the lengthy time needed for fleet turnover in order to
obtain the benefits from the OTC LEV program support reaching a
decision now based on the best data currently available. Based on this
data, EPA's conclusion is that very large reductions in NOX
emissions on the order of 50% to 75% throughout the OTR are necessary
for the serious and severe nonattainment areas in the OTR to attain the
ozone standard by their respective attainment dates. EPA also believes
that a similar magnitude of reductions in VOC emissions is necessary
primarily in and near the urban areas of the OTR.
Because ROM is useful to assess regional strategies in light of the
transport of ozone and ozone precursors across a region, and is
therefore critical to establishing boundary conditions for UAM models,
it is also useful to assess the degree of transport across a region.
The ROM studies discussed above therefore are a critical component of
the best current information regarding the extent to which upwind areas
contribute to exceedances of the ozone standard in downwind areas
throughout the OTR. Use of these studies, together with regional
trajectory analyses, to assess contribution between areas, is
consistent with EPA's published guidance for conducting contribution
analyses.\26\ The OTC, too, relied on these approaches consistent with
EPA's published guidance to establish the importance of addressing
pollution that is transported throughout the OTR and to thereby support
its recommendation that the LEV program is necessary region-wide.
---------------------------------------------------------------------------
\26\See U.S. EPA, Doc. EPA-450/4-91-015, Criteria for Assessing
the Role of Transported Ozone/Precursors in Ozone Nonattainment
Areas (1991).
---------------------------------------------------------------------------
EPA believes that the ROM studies, together with regional
trajectory analyses, show that the large percentage reductions in
NOX and VOC discussed above (on the order of 50% to 75%
reductions, with somewhat less emphasis on VOC reductions outside the
urban areas) are needed throughout the OTR for purposes of the downwind
nonattainment areas to attain the NAAQS. EPA recognizes that these
conclusions are based on ROM and trajectory analyses for the OTR as a
whole, and that factual uncertainty remains regarding the precise
degree of contribution for individual small subunits of the modeled
domain to ozone violations in other areas, and the amount of emissions
reductions needed to prevent such contribution.
To assess such contribution for each subunit in the grid would
require a myriad of sensitivity tests that are extremely complicated.
This is because contribution from one area to another can be enormously
difficult to isolate. The significance of any particular area's
contribution depends on the controls that have been implemented in
other areas that share the same airshed. The interrelationship between
the ROM and UAM models illustrates this point. The strategies needed in
the urban areas depend on what is being done in other areas that
affects UAM boundary conditions, and the strategies applied in all of
the areas determines the boundary conditions. In short, upwind areas
may need to do somewhat less to avoid causing downwind exceedances if
the downwind areas themselves do more, but the upwind areas may need to
do more if the downwind areas do less. And this relationship must
account for such variables in the many areas that share air throughout
the northeast.
While recognizing these complications and the associated factual
uncertainties, modeling and wind trajectory analyses show that
emissions transport from OTR areas in an arc extending from the south
and southwest to the northwest substantially affect nonattainment areas
along the East Coast urban corridor. The OTC's technical support
document for its recommendation\27\ contains several analyses that
support this conclusion. These analyses relate wind trajectory data to
monitored ozone data during three multi-day ozone exceedance episodes
in 1992 and 1993, as well as the July 1988 episode that was the subject
of the ROMNET study discussed above. These analyses also relate
monitoring data at mountaintop sites during these episodes that
indicate a broad region-wide buildup of ozone as the episodes progress.
For the 1992 and 1993 episodes, the wind trajectory data together with
the timing of high ozone readings at relatively rural sites in the
northern part of the OTR support the conclusion that transport from the
East Coast urban corridor toward the northeast portions of the OTR
leads to high regional ozone over a prolonged period.
---------------------------------------------------------------------------
\27\See ``The Long Range Transport of Ozone in the Ozone
Transport Region'' (January 1994).
---------------------------------------------------------------------------
The analysis of the July 1988 episode relies heavily on EPA's
ROMNET study. The ROMNET results indicate that emissions within the
East Coast urban corridor have a dominant impact on predicted ozone
levels within the corridor when emissions levels are very high. The
conclusion that corridor-wide emissions play a dominant role in
affecting predicted high ozone concentrations is consistent with
findings in a subsequent study EPA has performed for the OTC.\28\ The
ROMNET study separately modeled the impact of similar large percentage
reductions (60%) in NOX emissions first in OTR nonattainment
areas, second in OTR attainment areas and third in the four states
bordering the OTR. The modeling showed that ozone levels in the urban
corridor were more sensitive to reductions in the nonattainment areas
(which are mostly in the urban corridor). This was because the actual
quantity of emissions and hence the amount eliminated through a 60%
reduction was greater in the urban corridor, and because these
reductions were closer to the problem. However, as shown in the ROMNET
study, emissions from outside the urban corridor have an increasingly
important impact as the emissions within the corridor are reduced.
Since modeling indicates that very large reductions inside the urban
corridor are needed to approach the NAAQS, EPA expects that large
reductions outside the urban corridor will also become increasingly
important and in fact necessary for the nonattainment areas in the
urban corridor to reach the NAAQS.
---------------------------------------------------------------------------
\28\See Report of OTC Modeling Committee, ``Sensitivity of
Regional Ozone to Reductions in NOX and VOC Emissions: Results
of Phase III ROM Analyses'' (Section 9)(Winter 1993 Meeting).
---------------------------------------------------------------------------
In addition to the study of these three episodes on which the OTC
relied, EPA has reviewed additional surface and aloft wind trajectory
information. This information was generated from ROM wind fields for
each of the days analyzed in the four UAM modeling studies for purposes
of attainment demonstrations currently underway for the four UAM
modeling domains in the OTR. In all, EPA analyzed twenty-five days
during 1987, 1988 and 1991. EPA has found that on more than 80% of
these days surface winds\29\ are from the south to southwesterly
direction. This surface wind orientation is consistent with a large
cumulative impact of emissions along the northeast urban corridor. EPA
also found that, on about 70% of the days, winds aloft\30\ originate
from directions ranging from west-southwest through northwest. This
wind aloft orientation is consistent with a longer range impact on the
northeast urban corridor from sources located anywhere from the west-
southwest through the northwest of each of the OTR nonattainment areas
in the urban corridor. This would include sources in the western and
northwestern portions of the OTR and beyond.
---------------------------------------------------------------------------
\29\Surface winds in a ROM analysis represent wind flow in the
lowest 100-300 meters of the atmosphere.
\30\Winds aloft in a ROM analysis represent an average over a
layer from 300 meters to about 1500 meters above ground.
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Even though the UAM analyses for purposes of the attainment
demonstrations are not yet complete, EPA believes certain conclusions
can now be drawn about the outcome with respect to transport. The
episodes selected for these UAM analyses were chosen on the basis of
high observed ozone concentrations. In other words, the prevailing
meteorological conditions on these days were right for ozone formation.
These episodes correspond with wind trajectory information that
indicates a large impact from emissions transported across the region.
These wind trajectories will therefore also be used in the ROM analyses
to generate the boundary conditions for feedback into the UAM analyses.
These UAM analyses are the basis for the attainment demonstrations for
the OTR, and they are therefore likely to indicate that regional
controls are critical to demonstrating attainment for the four UAM
domains.
An additional source of specific information about transport along
the urban corridor is the calculation of boundary conditions for
Washington/Baltimore, Philadelphia, New York and New England for July
7, 1988.\31\ This is the only day subject to modeling in all four UAM
domains in the OTR. Estimates of the surface winds for this day are
consistently from the south-southwest for all four domains. Both
predicted and observed values for the boundary conditions for the UAM
domains are above or approaching the level of the NAAQS (120 ppm). And
the modeled values show a clear tendency to increase moving northeast
along the corridor, thus supporting the conclusion that the emissions
accumulate as they are transported up the corridor.
---------------------------------------------------------------------------
\3\1Washington D.C. and Baltimore are combined in a single
modeling domain.
---------------------------------------------------------------------------
In addition, EPA has analyzed days selected for UAM modeling in any
of the four domains for which calculated ROM surface wind trajectories
were from the west or northwest. For most of these days, predicted and
observed boundary conditions are on the order of 50-90 ppb with one
exception on June 22, 1988 for New York. The data for the day with
higher boundary conditions are presented in the following table. The
mean values in the table represent the concentrations averaged for
several monitors near the boundary of the modeling domain. The maximum
(max.) values are the highest observations made in the vicinity of the
boundary.
Table 1.--Observed Upwind Boundary Conditions for New York on June 22,
1988.\1\
------------------------------------------------------------------------
Observed
ozone,
Time of day (ppb)
``Mean/
Max.''
------------------------------------------------------------------------
1000-1200.................................................... 79/94
1600-1800.................................................... 111/142
1000-1800 average............................................ 101/124
------------------------------------------------------------------------
\1\The table is derived from information presented in Possiel, N. and R.
Wayland, Preliminary Evaluation of ROM for Estimating UAM Boundary
Concentrations, (SRAB, TSD, OAQPS Internal Report)(April 1994).
Predicted ozone values at the western boundary of the domain for
this day are also on the order of 100 ppb. On this day, the ROM
trajectories indicate light surface winds prevailed. The data in the
table support the conclusion that these high boundary conditions result
at least in part from long range transport from the western and
northwestern OTR. This, together with all the other information
available, further supports the conclusion that controls in the western
and northwestern portions of the OTR are necessary for attainment
throughout the region.
Finally, EPA has compiled back-trajectories calculated from ROM for
each of the four UAM domains for all days selected for modeling. The
results generally support the conclusion that surface winds from the
south through west-southwest and winds aloft from the northwest to
south-southwest transport pollutants across the OTR. This, together
with all of the other available information, supports EPA's conclusion
that large emission reductions in NOX in both the northeast urban
corridor and upwind areas located to the far south-through-northwest of
the nonattainment areas in the urban corridor are necessary, and that
large emissions reductions in VOC at least in and near the urban
corridor are necessary.
In sum, EPA analyzed ozone monitoring data, wind trajectory data,
and information derived from several analytical techniques and modeling
studies. All of these analyses in combination lead EPA to conclude that
large scale regional transport is a critical component of the ozone
nonattainment problem in the OTR. It is clear that to reach attainment
in the northeast urban corridor, the nonattainment areas themselves
will have to implement very extensive emission control programs for
NOX and VOC to counteract their contribution to ozone violations
in their immediate areas and further downwind toward the northeast.
Also, EPA believes, based on best current information, that large
reductions in NOX emissions are necessary throughout areas located
from the south through the west and northwest, and that large VOC
reductions are necessary for at least the urban portions of the OTR.
(c) Analysis of Inventory and Options for Control Measures
Having assessed the magnitude of reductions needed throughout the
OTR, the next step in EPA's analysis is to assess the options available
for achieving the necessary 50% to 75% reductions in NOX across
the OTR and in VOC for the urban parts of the OTR. In doing so, EPA
first assessed the best available information about the inventory of
emissions across the OTR. Then EPA proceeded to consider various
potential control measures to reduce these emissions by the necessary
amount. As discussed above in section IV.A.1. and in the April 26
notice, EPA considered options that are at least potentially reasonable
and practicable in light of the OTC LEV program. Based on this
analysis, EPA believes that no combination of potentially reasonable
and practicable controls on large and small stationary point sources,
area sources, highway vehicles, offroad mobile sources, and fuels will
be sufficient to achieve the necessary reductions without more
stringent standards for new motor vehicles. And the only option legally
available to the states for achieving the necessary further reductions
from new motor vehicles is the OTC LEV program.
i. Inventory Analysis
The table below presents OTR-wide NOX and VOC emission
estimates for 2005. This information was derived from the 1990 interim
regional inventory EPA is currently using in the ROM analyses discussed
above to support UAM modeling for SIP attainment
demonstrations.32,33 These figures reflect the net effect of
growth and control programs projected from 1990. As discussed above in
section IV.A.2., EPA's conclusions regarding the percent reductions in
NOX and VOC emissions are based on modeling which used the 1985
NAPAP emissions inventory. However, as stated above, EPA believes that
the amount of reductions necessary from the 1990 baseline are
comparable to, or perhaps greater than the reductions from the 1985
inventory. This means that controls must counteract growth in emissions
to produce a reduction from the emissions levels in 1990 of at least
50-75%. Inventories reflecting growth and controls need to be compared
to the approximate reduction targets to fully evaluate the need for a
LEV program. The table below indicated that light-duty vehicles (and
mobile sources in general) represent a substantial portion of the OTR
inventory for both NOX and VOCs, even after accounting for
implementation of all controls in the year 2005 explicitly required in
the Act.
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\3\2,33See E.H. Pechan & Associates, Regional Interim Emission
Inventories (1987-1991), Volume I: Development Methodologies,
Prepared under EPA contract 68-D2-159, Work Assignment No. 13 (May
1993).
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(a) NOX.
Table 2.--OTR-Wide Inventory Anthropogenic Estimates for 20051
------------------------------------------------------------------------
Percent
Source category Tons per of total
day inventory
------------------------------------------------------------------------
Light-Duty Mobile.................................. 2034 28
Heavy-Duty Mobile (gas + diesel)................... 727 10
Offroad Emissions.................................. 1430 19
Stationary Point Sources........................... 2567 35
Stationary Area Sources............................ 555 8
Total Emissions.................................... 7314 100
------------------------------------------------------------------------
(b) VOC.
------------------------------------------------------------------------
Percent
Source category Tons per of total
day inventory
------------------------------------------------------------------------
Light-Duty Mobile.................................. 1481 19
Heavy-Duty Mobile (gas + diesel)................... 210 3
Offroad Emissions.................................. 1266 16
Point Sources...................................... 1103 14
Area Sources....................................... 3767 48
Total Emissions.................................... 7827 100
------------------------------------------------------------------------
1EPA recognizes that the precision implied by these numbers is greater
than justified, given the uncertainty associated with projected
emission estimates. However, the figures are provided in this and
subsequent tables displaying emissions data in order for the reader to
understand the full derivation of percentages reflecting the relative
importance of various components of the inventory.
EPA believes it is instructive to highlight the significance of
emissions from highway vehicles in the inventory. As shown in Table 2,
above, EPA expects that highway vehicles will account for approximately
38% of the total NOX inventory and 22% of the total VOC inventory
in 2005. Highway mobile source NOX and VOC emissions, therefore,
constitute a major portion of the emissions in the OTR, and it is
reasonable to conclude that a workable compliance plan for the OTR must
include substantial controls on motor vehicles.
Further, because the LEV program would achieve emissions reductions
primarily from gasoline-powered vehicles, it may be useful to separate
the projected mobile source emissions into gasoline and diesel
components. EPA estimates that gasoline-powered light-duty vehicles
constitutes 28% of the total NOX emissions and 19% of the total
VOC emissions in the 2005 projected inventory.
ii. Analysis of Options for Control Measures Without More Stringent New
Motor Vehicle Standards
This section reviews options for control measures that could
potentially render the OTC LEV (or LEV-equivalent) unnecessary in the
OTR. As will be discussed, EPA has determined that such measures do not
provide sufficient emissions reductions without LEV and that therefore
LEV is necessary.
In evaluating control options, EPA considered measures that it
believes are not clearly unreasonable or impracticable (and are thus
potentially reasonable and practicable). This does not mean that EPA
believes that such measures are in fact reasonable and practicable.
Rather, EPA believes that for purposes of assessing whether states
might adopt other reasonable and practicable measures to achieve the
needed reductions without OTC LEV, it should consider all measures that
are not clearly unreasonable or impracticable.34-35 EPA did not
consider measures such as mandatory plant shutdowns, gas rationing, and
bans on ownership of high-emitting vehicles because the Agency believes
these are clearly unreasonable or impracticable to impose in comparison
to the OTC LEV program.
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\3\4-35EPA does not intend its consideration of particular
measures here to suggest that the Agency believes such measures
constitute reasonably available control technology (RACT) or
reasonably available control measures (RACM) as those terms of art
are used in the Clean Air Act.
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As EPA explained in its April 26 notice and in section III.A.1.
above, the Agency believes that cost-effectiveness of control options
is one criterion in evaluating whether they are clearly unreasonable
and impracticable. EPA believes that it should consider additional
factors, such as extreme economic and societal costs, disruptions,
distributional impacts, and public acceptance, that would warrant the
conclusion that Congress would not have had the Agency consider
particular measures to be viable options for finding other measures
unnecessary. See 59 FR at 21726.
In assessing options for control measures, EPA relied, in part, on
the same ROM modeling studies EPA used to assess the overall magnitude
of reductions needed in the OTR. These studies are useful to check
whether the impact of specific control strategies corresponds with
predictions about the overall magnitude of reductions. See sections
IV.A.2.(a) and (b), above. The first ROM study analyzed the impact of
the control measures explicitly mandated in the Act for OTR areas. The
second study is the 1991 ROMNET ``matrix'' study of the impact of a
series of uniform reductions in emissions of NOX, VOC or both. As
discussed above, EPA reached conclusions about necessary emissions
reduction targets from these studies.
In the analysis, EPA first quantified the impact of the measures
required by the Act. Next, EPA evaluated an array of additional control
options that are not clearly unreasonable or impracticable that could
be implemented in addition to the mandatory measures. EPA then surveyed
other potentially reasonable and practicable control measures to
determine whether those options are sufficient to make up the shortfall
which exists after application of the mandatory measures without the
OTC LEV program. These other control options include the maximum
region-wide limit on NOX emissions that is not clearly
unreasonable or impracticable, measures EPA included in proposed
Federal Implementation Plans for three areas in California, and
measures listed in compilations of NOX and VOC controls prepared
by EPA and the State and Territorial Air Pollution Program
Administrators/Association of Local Air Pollution Control Officials
(STAPPA/ALAPCO).
The EPA considered both NOX and VOC control measures, but
focused primarily on NOX controls. As discussed previously, EPA
believes that very large reductions in NOX emissions on the order
of 50%-75% are needed region-wide, while a similar magnitude of VOC
reductions are necessary primarily in or near the East Coast urban
corridor. EPA believes that there are insufficient potentially
reasonable and practicable measures to achieve the necessary NOX
reductions region-wide without the LEV program. This is a sufficient
basis for approval of the OTC's recommendation and for issuing a
finding that the SIPs are substantially inadequate to meet section
110(a)(2)(A) without the LEV program for the entire region. EPA also
believes that there are insufficient potentially reasonable and
practicable measures to achieve the necessary VOC reductions in and
near the urban areas, which constitutes an additional basis for
approving the OTC's recommendation and for making a finding of
substantial inadequacy with regard to interstate transport for those
areas.
Control Measures Explicitly Mandated Under the Act
The Act includes a broad array of measures applicable to stationary
as well as mobile sources. As discussed above, EPA calculated emission
reduction estimates from these controls and input them into ROM to
study the impacts for particular meteorological episodes.36 The
modeling incorporated the following measures that, for technical
reasons, may differ slightly from those mandated in the Act.
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\3\6EPA used an 80% Rule Effectiveness value in calculating the
overall effectiveness of control measures. Rule effectiveness was
applied to all controls that were not an irreversible process change
(for which 100% effectiveness was assumed). Thus, for the controls
that consider Rule Effectiveness the emission reduction due to a
particular control device was calculated as the product of the
control efficiency and the Rule Effectiveness value. For example, a
device that controls at a level of 75% would produce an emissions
reduction of only 60% (i.e. 0.75 x 0.80). Rule effectiveness is
explained in detail in this section, below.
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1. Reasonably available control technology (RACT) on ``major''
point sources of NOX and VOC;
2. Federal emissions standards in place for off-highway vehicles;
3. Federal reformulated gasoline requirements in all OTR
nonattainment areas (including Phase II standards);
4. Enhanced Inspection/Maintenance (I/M) programs for all
metropolitan areas with populations above 100,000;
5. Emissions cap on large point sources (above 100 tons per
year37) after 1996 to reflect offset requirements for new and
modified major sources (i.e., equivalent to new source review
requirements and 1:1 offsets);
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\3\7The model assumed the 100 tons per year cutoff for reasons
related to the construction of the air quality model. EPA recognizes
that smaller sources are also subject to new source review
requirements. These are treated in the model as stationary area
sources. The model cannot readily separate those individual smaller
sources subject to new source review from other smaller sources.
---------------------------------------------------------------------------
6. Emissions cap on area sources in each nonattainment area
beginning on the attainment deadlines for those areas to reflect
maintenance requirements;
7. ``Stage II'' vapor recovery controls on gasoline pumps in all
metropolitan areas with populations above 100,000;
8. Application of RACT controls specified in EPA's Control
Technique Guidelines (CTG's) for eleven source categories;38
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\3\8These CTG's include reductions from area sources as well as
point sources, and therefore go beyond the RACT controls identified
in 1.
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9. Federal controls on emissions from commercial solvents, marine
vessel loading, municipal landfills and hazardous waste treatment,
storage, and disposal facilities (TSDF's);39
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\3\9One commenter asked that EPA, in assessing the need for the
OTC LEV program, consider the potential for emissions reductions
from landfills. EPA has proposed a new source performance standard
(NSPS) for landfills and proposed guidelines for existing landfill
sources. See 56 FR 24468 (May 30, 1991). EPA expects to take final
action on the NSPS and the guidance by December 1994. EPA has taken
the resulting emissions reductions into account among the Clean Air
Act mandatory measures.
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10. Federal ``Tier I'' tailpipe emission standards for new
vehicles;
11. Federal evaporative emissions controls for new vehicles;
12. Federal ``Phase 2'' controls on gasoline volatility;
13. Federal Maximum Available Control Technology (MACT) controls
for hazardous air pollutants (which include VOCs) for approximately
forty source categories;
14. Federal controls on NOX emissions from coal-fired utility
boilers under the Acid Rain program.
EPA calculated that application of these controls mandated in the
Act would achieve emissions reductions by 2005 in the OTR of 20% for
NOX and 37% for VOC from the 1990 baseline. As discussed above in
sections IV.A.2.(a) and (b), EPA believes this level of reductions will
not be sufficient to attain the ozone NAAQS throughout the OTR.
Confirming this conclusion, ROM studies of four episodes applying these
measures in 2005 for all days being modeled in the four UAM domains in
the OTR yield predictions of ozone levels above the 120 ppb NAAQS in
five OTR subregions. These subregions include the UAM domains for
Baltimore/Washington, Philadelphia, New York City and New England, and
west/central Pennsylvania. Further, the model predicts ozone levels
would exceed 160 ppb in at least one subregion for each of the
episodes.
Region-wide 0.15 NOX Standard
Beyond the measures explicitly mandated in the Act, the OTC also
asked EPA to analyze the impact of an additional region-wide limit on
NOX emissions of 0.15 lbs/MMBtu (the ``0.15 NOX standard'')
for boilers, gas turbines, and internal combustion engines with a
capacity of at least 250 MMBtu/hr. EPA evaluated the 0.15 NOX
standard to represent the maximum emissions reduction from large
stationary sources from measures that are not clearly unreasonable or
impracticable. EPA developed emissions estimates associated with this
additional control and modeled the impact on regional NOX
emissions. EPA's modeling conclusion is that a 0.15 NOX standard
would achieve a 15% reduction in inventory-wide NOX emissions from
a 2005 projected baseline, after application of other controls mandated
in the Act.40 Together with the mandatory measures, this
additional measure would therefore achieve a total NOX emissions
reduction in the OTR of 32% from 1990 baseline levels. Thus, even a
strategy including the additional 0.15 NOX standard region-wide in
addition to all mandated Clean Air Act measures would achieve only 32%
reductions in NOX and 37% reductions in VOC from 1990 baseline
levels.
---------------------------------------------------------------------------
\4\0EPA notes that these percentage reductions are from a 2005
projected baseline. EPA's conclusion that a 50%-75% reduction in
emissions is from a 1990 inventory baseline. It is important to bear
in mind throughout this analysis that the 1990 baseline inventory is
substantially larger than the projected 2005 baseline, which
presumes application of mandatory Clean Air Act controls. Therefore,
percentage reductions that particular measures achieve from the 2005
are larger than the percentage reductions those same measures would
achieve if calculated from the 1990 baseline.
---------------------------------------------------------------------------
After application of the mandated Clean Air Act measures together
with the O.15 NOX standard, highway vehicle emissions still
represent a substantial component of the emissions inventory. Table 3,
below, reflects these calculations.
Table 3.--Total and Mobile 2005 Emissions in the OTR Corresponding to
Mandatory Measures Plus Additional Controls on Large NOX Sources
------------------------------------------------------------------------
NOX, VOC,
Emissions tons per tons per
day day
------------------------------------------------------------------------
Total Emissions in the OTR.......................... 6181 7827
Highway Vehicle Emissions in the OTR................ 2759 1858
Percent of Total Emissions Attributable to Highway
Vehicles........................................... 45% 24%
------------------------------------------------------------------------
STAPPA/ALAPCO Compilations of VOC and NOX Control
Measures
EPA, together with STAPPA/ALAPCO, prepared two important
compilations of potential measures available to states in the OTR to
address ozone air quality problems.41 The STAPPA/ALAPCO
compilations provide fairly comprehensive lists of VOC and NOX
control measures that augment traditional controls. The VOC document
includes programs to obtain reductions from degreasers, vehicle
refueling (Stage II vapor recovery), aerospace manufacturing and
rework, bakeries, offset lithography, wood furniture coatings, and
automobile assembly, among others. EPA has, however, already included
most of the VOC measures from the STAPPA/ALAPCO compilation in the
analysis of Clean Air Act mandated measures, described above, while
others affect only a small portion of the VOC inventory.
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\4\1See Meeting the 15-Percent Rate-of-Progress Requirement
Under the Clean Air Act: A Menu of Options, STAPPA/ALAPCO (Sept.
1993); Controlling Nitrogen Oxides Under the Clean Air Act: A Menu
of Options, STAPPA/ALAPCO (July 1994).
---------------------------------------------------------------------------
The STAPPA/ALAPCO compilation of NOX control measures
identifies seventeen NOX source categories. Most of the source
categories listed are included in the 0.15 lbs/MMBtu NOX standard
that EPA considered. The only source categories included in the
compilation, but not in the 0.15 standard, are NOX emissions from
open burning and residential space and water heaters. However,
emissions from these source categories identified in the document are
extremely small compared to other source categories.
With the exception of coal-fired boilers, the STAPPA/ALAPCO
document recommends emission levels more stringent than the 0.15
NOX standard that EPA modeled through application of beyond-RACT
measures. Emissions from coal-fired boilers dominate the stationary
source emission inventory. That is, the additional NOX reductions
from those other source categories are a relatively small portion of
the emission inventory compared to the contribution from coal-fired
boilers (and an even smaller portion of the overall 35% stationary
source contribution to the total inventory).
Transportation Control Measures
EPA also considered transportation control measures (TCMs) as
potentially reasonable and practicable measures available for the OTR.
There are a wide range of TCMs that have been proposed, but EPA
believes that many of them, such as gasoline rationing, are
unreasonable and impracticable here. Two options that EPA considers
potentially reasonable and practicable are the extension of the
Employee Commute Option (ECO) program region-wide and implementation of
a comprehensive system of congestion pricing, employee parking pricing,
and emissions-based registration fees.
Section 182(d)(1)(B) of the Act mandates that the severe areas in
the OTR adopt employee trip reduction programs (also known as ECO
programs). Under these programs, each employer with more than one
hundred employees must offer incentives and encouragement for employees
to travel to work by means other than single-occupant vehicles. The
eventual goal of the program is to achieve a 25% increase in vehicle
occupancy for morning commuting trips. This is equivalent to one out of
five employees using a mode of commuting, other than driving. EPA's
best case estimate of the benefits of extending the ECO program region-
wide is a three percent reduction in vehicle miles travelled (VMT) in
the OTR. This reduction in VMT would correspond to approximately a two
percent reduction in NOX and VOC emissions from light-duty
vehicles in the OTR, and to a 0.6% reduction in overall NOX
emissions and a 0.4% reduction in overall VOC emissions from the 2005
baseline. The incremental amount of reductions is limited because the
program would only affect the limited number of large employers outside
the severe areas and because commuting trips are only a fraction of
overall trips and VMT.
A second TCM option is a comprehensive system of fees and
incentives designed to affect driving habits and vehicle usage. These
controls, including congestion pricing, employee parking pricing, and
emissions-based registration fees, are described in the Cameron
Report.42 These measures could possibly achieve a 12% reduction in
car and light-truck VMT in the OTR. This would correspond to a 12%
reduction in NOX and VOC emissions from light-duty vehicles, a 2%
reduction in overall VOC emissions and a 3% reduction in overall
NOX emissions from the 2005 baseline.
---------------------------------------------------------------------------
\4\2See ``Transportation Efficiency: Tackling Southern
California's Air Pollution and Congestion'', Michael Cameron, EDF
and Regional Institute of Southern California (March 1991).
---------------------------------------------------------------------------
California Reformulated Gasoline
The use of California reformulated gasoline in the OTR is another
option that has been mentioned. This program would generate limited
additional emissions reductions in the OTR. California reformulated
gasoline achieves greater emissions reductions than Federal
reformulated gasoline, due to the different specifications for the
California fuel, such as a lower Reid Vapor Pressure (RVP). EPA
estimates that the implementation of California reformulated gasoline
in the OTR could provide an approximate six to seven percent reduction
in NOX and VOC emissions from gasoline vehicles. This corresponds
to reductions from the overall 2005 baseline of 1.7% for NOX and
1.5% for VOC. This issue was addressed in a study done for the State of
Maryland43 and a study prepared for the group of northeast
states.44 Both of these studies corroborate EPA's conclusion that
California reformulated gasoline would achieve limited reductions in
the OTR.
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\4\3See Ellis, H., ``An Analysis of Ozone Control Strategies for
Maryland,'' Johns Hopkins University (Jan. 17, 1994).
\4\4See Screening Study of Mobile-Source Strategies for the
Northeast,'' Acurex Environmental Corporation (Oct. 1992).
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California Federal Implementation Plans Measures
EPA also considered additional emission reduction measures that the
Agency has included in a proposed Federal Implementation Plan (FIP) for
the Ventura, Sacramento, and South Coast areas of California. See 59 FR
23263 (May 5, 1994). As the following discussion indicates, the
measures proposed for consideration in these FIPs which are not
unreasonable or impracticable and which could be implemented by the
states in the OTR, have largely been considered as part of other
strategies discussed above. Those that remain would not generate a
substantial reduction in emissions from the overall inventory.45
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\4\5As the FIP proposal contains too many provisions to list
exhaustively, the following discussion focuses on examples to
illustrate EPA's approach.
---------------------------------------------------------------------------
Context Surrounding FIP Measures
The court-ordered obligation that EPA produce FIPs for three
regions of California has placed EPA in an unusual position. The Clean
Air Act places primary responsibility for clean air planning at the
regional, state and local levels. This is appropriate because state and
local officials have the specific knowledge, flexibility, and
sensitivity to tailor clean air plans to the particular needs of their
communities. Throughout the FIP development process, EPA has
acknowledged that the measures at its disposal include blunt
instruments that have the potential for significant social and economic
impact. Also, the time constraints imposed by the court order and the
functional limits on EPA's ability to fashion measures which meet the
specific needs of localities have forced the Agency to propose a number
of measures that would not be appropriate for implementation in the
OTR.
The pollution problems experienced in California are of a magnitude
far greater than those experienced anywhere else in the nation.
Moreover, the OTC, with its recommendation here, seeks to benefit from
the leadership California has demonstrated in setting strict pollution
standards for new vehicles. The measures proposed in the FIP generally
supplement measures California has already adopted. The LEV program is
a critical aspect of California's attainment strategy and the FIP. When
considering whether FIP measures may constitute part of a set of
measures sufficient to achieve the necessary reductions in the OTR
without the LEV (or LEV-equivalent) program, it is essential to stress
that EPA proposed these measures for California in addition to the LEV
program that California had already adopted in 1990. If the LEV program
had not already been adopted, EPA would have had to propose a measure
very much like it for the FIP, due to the substantial and relatively
cost-effective benefits that the program will provide in California.
Description of FIP Measures
For the purposes of this discussion, EPA has grouped proposed FIP
measures into four broad categories: (1) FIP measures that are not
practicable in the OTR because they depend on federal authority to be
implemented or are predicated on special regulatory authority Congress
has conferred only upon California; (2) FIP measures that are clearly
unreasonable and impracticable in the OTR because they are predicated
upon industrial or geographic circumstances that are particular to
California; (3) FIP measures that are unreasonable and impracticable in
the OTR relative to LEV implementation because they are too costly or
speculative; and (4) FIP measures which are not clearly unreasonable or
impracticable for implementation in the OTR.
(1) Measures excluded because they depend on unique authority.
a. Federal Authority--EPA proposed two different types of FIP
measures relying on EPA's unique federal authority. Most were measures
that would apply nationally, such as recreational marine vessel
controls, and thus would apply in the OTR, as well. Additionally, EPA
proposed some parts of the FIP solely under authority accorded to the
Agency under the FIP provisions in section 110(c). These parts of the
FIP regulated source categories including new locomotives and farm and
construction equipment under 175 hp. See section 209(e)(1). These
proposed FIPs would rely on section 110(c) to impose requirements for
these sources that are more stringent than EPA has proposed for the
nation as a whole. All states, including California, are preempted from
regulating this category of sources. Therefore, no state in the OTR has
the option of adopting these controls.
b. State Authority--California has authority under section 209 of
the Act to address pollution from on-highway and nonroad engines
(except certain categories of nonroad engines noted above), which other
states do not have. In the FIP proposal, EPA stepped into the shoes of
California and proposed several measures under California's section 209
authority for California only. Generally, these measures are tight new
emission standards for new on-highway and nonroad equipment. EPA also
proposed certain measures to improve durability of on-highway and
nonroad equipment to better control emissions in-use. EPA again
proposed these programs under California's special authority that other
states do not have. Because states are preempted from adopting such
regulations in the absence of California regulations actually adopted
under California's Clean Air Act authority, states in the OTR do not
now have the option of adopting any of these controls.
(2) FIP measures that are impracticable in the OTR because they are
predicated upon industrial or geographic circumstances that are
particular to California.
EPA proposed several programs for the FIP that deal with
circumstances unique to California's industrial and geographic
circumstances and are therefore inappropriate for the OTR. For example,
due to the fire hazards inherent in an arid region, California fire
departments burn vegetation periodically to lower the risk of a wild
fire. EPA proposed that these burns only occur on certain days so that
the pollution from the fire does not add to ozone exceedances. Since
such burns do not occur in the OTR, such requirements would not make
sense there. The rules regarding outer continental shelf oil
exploration are another example of rules which may make sense in
California but not in the OTR.
(3) FIP measures that are unreasonable or impracticable in the OTR
because they are too costly or disruptive.
The FIP contains ``cap'' rules for stationary sources which impose
an annual rate of reduction on affected sources for as many
controllable VOC and NOX categories as possible. The emission
reduction targets are derived from the overall shortfall in the FIP
area rather than any consideration of available emission control
technologies. EPA's proposal anticipates that the state and local
agencies can over time develop carefully tailored economic incentive
programs or traditional rules based upon the most recent technologies
and regulatory approaches. But the cap rules themselves are not
examples of specific regulatory approaches to be adopted at the state
or local level. These are therefore blunt instruments without specific
and identifiable emissions control mechanisms in mind. As such, they
may be costly to achieve and EPA cannot now conclude that they are
based on technologies that are potentially practicable.
Beginning in 2004, the FIP also proposes to discourage the use of
older high polluting recreational boat engines through the imposition
of a user fee and permit system. EPA believes that measures which
restrict individual behavior or prevent citizens from benefitting from
investments made in property are particularly difficult to implement.
EPA does not believe it is reasonable to adopt such measures before
implementation of the LEV standards.
(4) Proposed FIP measures which are not clearly unreasonable and
impracticable.
Many of the proposed FIP measures are based on national, state and
local initiatives that EPA does not believe it should dismiss as
clearly unreasonable or impracticable. Nationally, there are a variety
of standards for stationary and mobile sources. California initiatives
include the LEV program itself, as well as other measures applicable to
consumer products. The FIP proposal also takes into account local
efforts in the affected California areas to reduce NOX from
stationary and mobile sources.
EPA is in the process of developing many national rules that it
took into account in the FIP proposal and that it therefore expects to
apply in the OTR. For example, apart from the FIP proposal, EPA is
developing by November 1995, nation-wide emission standards for new
marine engines. EPA is also developing standards for locomotives and
small nonroad engines under 25 hp. California has also developed rules
to reduce VOC emissions from paints and other consumer products and EPA
is developing similar controls on the VOC content of consumer and
commercial solvents and architectural coatings. EPA has already
accounted for the benefits of all of these measures for the OTR above,
in its modeling of the impact of the mandatory Clean Air Act measures.
Local areas in California, especially the South Coast Air Quality
Management District (South Coast), have been especially innovative in
developing emissions reduction programs. There are two programs that
EPA took into account in its FIP proposal which merit special comment
here. First, the South Coast developed an ECO program to reduce the
number of vehicle miles travelled to and from major employers. As
discussed above, the Clean Air Act now requires many nonattainment
areas to implement ECO programs. EPA proposed in the FIP to expand
coverage to Sacramento. As discussed above, the ECO programs already
required for certain areas in the OTR could be expanded region-wide, or
applied to smaller employers than currently mandated. However, as noted
above, the incremental benefits from these programs appear to be
relatively small.
The South Coast has also developed a new program that EPA took into
account in its FIP proposal, known as the Regional Clean Air Incentives
Market (RECLAIM), to establish a declining cap on NOX emissions
from stationary sources. Unlike the South Coast, however, large
stationary NOX sources in the OTR are dominated by coal-fired
utilities. In place of a declining NOX cap program, the OTR states
are developing a plan to impose a stringent NOX standard for
utilities. This is part of the 0.15 lbs/MMBtu NOX standard ,
discussed above. This standard is substantially more stringent than
many in the OTR believe to be reasonable, but EPA has nonetheless
modeled the impacts of such a strategy in its analysis here.
Consideration of Rule Effectiveness
In evaluating the emissions reductions attributable to particular
control measures, it is important to consider the effectiveness of the
rules. If all sources fully comply with the rules at all times, and if
there were never problems with control equipment, then the emission
reductions associated with control measures could be calculated and
summed to reflect the anticipated reductions as a result of applying
specific regulations. However, past history has shown that rules are
not consistently applied or enforced, control equipment malfunctions,
and operating and maintenance problems occur, all contributing to air
emissions. These emissions are accounted for through the application of
rule effectiveness (RE) guidelines. This is a means of identifying and
estimating the increased emissions failures and uncertainties in
emission control programs.
Rule effectiveness is a measure of the extent to which a rule
actually achieves its desired emission reductions. It accounts for a
variety of factors that influence the efficacy of emission control
programs, including: the nature of the regulation or control (e.g.,
complexity of record-keeping or test methods); nature of control
techniques (e.g., potential for fugitive emissions); performance of
sources in complying with the regulation (e.g., schedule of maintenance
and inspection of control equipment); and performance of those
enforcing the regulation (e.g., inspector training).
EPA accounts for RE for mobile source controls that affect the
mobile emissions factors internally in the MOBILE model. For stationary
sources, however, the emissions inventory must account for RE to yield
more reliable estimates of the actual emissions reductions that SIP
rules will achieve. In general, EPA specifies an 80 percent default RE
value in the absence of a local category-specific RE value. In essence,
this assumes that the ability to use control devices or regulations to
achieve emission reductions is only 80 percent effective. Without
application of RE to the emissions inventory, the emissions reductions
estimated to occur as a result of control measures would be overly
optimistic. Although EPA's analysis of measures mandated in the Act
accounts for RE, the emissions reductions assumed for the other
measures may not have accounted for REs and must therefore be
considered overly optimistic.
Conclusions
As described above, EPA believes reductions in the range of 50% to
75% from 1990 baseline NOX and VOC emissions levels will be needed
to enable all of the serious and severe nonattainment areas in the OTR
to attain the ozone standard. The NOX reductions are needed
throughout the OTR and the VOC reductions are needed at least in and
near the urban portions of the OTR. EPA recognizes that there are
uncertainties in its modeling analysis used to reach this conclusion.
For the reasons described earlier in this notice, EPA believes it would
be appropriate generally to resolve uncertainties in its factual
analysis in favor of the most environmentally conservative course. EPA
requests comment on whether, for purposes of its analysis of
alternative control measures, EPA should conclude that the middle of
this range, or at least a 65% reduction from baseline NOX
emissions, will be necessary throughout the OTR. Here, as described
below, EPA believes that focus on the low end of the range would not
change its conclusion. In addition to uncertainties in the atmospheric
models, uncertainties also exist in the base year emissions
inventories, the projected emissions that account for growth in the
future, the amount of emission reductions estimated to result from
implementation of the control measures (including consideration of rule
effectiveness), and the modeled ozone concentrations resulting from the
emissions. Additionally, EPA believes that it should err on the side of
environmental protection in addressing these uncertainties.
As described above, a strategy consisting of all of the mandatory
Clean Air Act measures and the 0.15 NOX standard for large
boilers, gas turbines, and internal combustion engines would achieve
approximately a 32% reduction in NOX from 1990 baseline levels.
Most of the source categories listed in the STAPPA/ALAPCO compilation
of NOX control measures are already included in the 0.15 NOX
standard, and the NOX emissions from the few remaining categories
of small stationary and area sources comprise an extremely small
portion of the stationary source segment of the emissions inventory,
and a proportionally smaller portion of the overall inventory. Hence,
it is likely that those additional measures would achieve no more than
a small percentage reduction in the overall NOX inventory.
In addition, the transportation control measures that EPA would not
consider clearly impracticable or unreasonable (including expanded
geographic coverage of ECO programs and implementation of a
comprehensive system of congestion pricing, employee parking pricing,
and emissions-based registration fees, and the versions of those
measures included in EPA's FIP proposal), would yield a combined
reduction of 2.5% from 1990 baseline inventory-wide NOX
reductions. Beyond that, implementation of California reformulated
gasoline requirements in the OTR would achieve approximately a 1.4%
reduction in NOX emissions from 1990 baseline inventory-wide
levels.
It is apparent that the combined NOX reduction of the entire
set of these measures would be significantly short of the 65% NOX
reduction EPA believes is needed throughout the OTR for attainment in
the serious and severe nonattainment areas of the region. As a result,
those areas will not be able to attain the standard through application
of all of the potentially practicable measures, without NOX
reductions from more stringent emissions standards for new vehicles
region-wide.
After evaluating the control measures discussed above, EPA
concludes that the emissions reductions resulting from application of
potentially reasonable and practicable control measures will not be
sufficient to achieve attainment throughout the OTR without more
stringent new vehicle emission standards.
Mobile source emissions comprise a significant part of the 2005
NOX and VOC emissions inventories. Indeed, EPA believes that,
apart from its analysis of each potentially reasonable control option
independently, the reasonableness and practicability of adopting all
these controls measures without adopting more stringent standards for
new motor vehicles is questionable. And for NOx, while additional
emissions reductions from other source categories will be important to
meet the attainment goal, EPA believes the measures will be needed in
addition to, rather than in place of, more stringent controls for new
motor vehicles throughout the OTR. Although EPA has not quantified all
of the VOC reduction measures described above, EPA believes the
conclusion also applies for VOC, at least in and near the urban
portions of the OTR.
iii. Determination Whether Reductions from OTC LEV (or LEV-
Equivalent) Approach to New Motor Vehicles Are Necessary.
EPA believes that the foregoing information supports the conclusion
that sufficient options to make up the shortfall in emissions
reductions necessary for attainment in the OTR are not available from
sources other than new motor vehicles, and that additional reductions
in NOX and VOC emissions from new motor vehicles are therefore
necessary. EPA believes that the OTC LEV program would achieve
reductions beyond the mandated Clean Air Act measures by 2005 of 4% for
NOX and 2% for VOC from the 2005 baseline. This information is
presented in Table 4, below.46
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\4\6EPA's analysis presumes that the only difference in
emissions between OTC LEV vehicles and federal vehicles is tailpipe
emissions.
Table 4.--Reduction in 2005 Baseline VOC and NOX Emissions Attributable
To a LEV Program
------------------------------------------------------------------------
NOX VOC
changes changes
Emissions component (percent) (percent)
------------------------------------------------------------------------
Total highway emissions........................... -10 -9
Total OTR emissions............................... -4 -2
------------------------------------------------------------------------
These calculations are based on the incremental effect of the LEV
program beginning in 1999 throughout the OTR over the reductions that
will take place in New York and Massachusetts as a result of their
existing LEV programs beginning in 1996. Due to the phase-in schedule
for the LEV program and the time required for fleet turnover, the
maximum benefit for LEV would not be realized until 2028. Therefore,
EPA expects that emissions reductions attributable to an OTC LEV
program would continue to grow after 2005.
Under the OTC LEV program, some increases in emissions would be
associated with the permanent migration of non-LEVs into the OTR, and
with temporary visits by non-LEV vehicles from other states. The amount
of excess emissions associated with migrating and visiting vehicles is
dependent on two factors: (1) the difference in emissions per car
between the cars entering the OTR and the ``native'' fleet within the
OTR; and (2) the number and age-mix of the cars entering the OTR from
outside. Both questions are difficult to answer and will have different
answers for permanent migration and temporary visitation. The numbers
in this Table 4 do not include these effects because EPA is still
analyzing this issue and has not yet quantified these effects.When this
analysis is ready, EPA will put it in the docket and publish a notice
of data availability in the Federal Register.
As described above, EPA does not believe other practicable options
are available to make up the shortfall to achieve the reductions
necessary in the OTR for attainment. Therefore, EPA believes that a
program available to achieve more reductions from new motor vehicles is
necessary.
Legal limitations make the LEV program the only option available to
the states to achieve what are necessary additional reductions from new
motor vehicles. Section 209 of the Act prohibits states from adopting
or attempting to enforce any standard relating to the control of
emissions from new motor vehicles or engines, except for California if
a waiver is granted. This is subject to a limited exception provided in
section 177 for states that have SIP provisions approved under part D
of the Act to adopt and enforce emissions standards for new motor
vehicles and engines if: (1) Such standards are identical to the
California standards for which a waiver has been granted; and (2)
California and the state adopt the standards at least two years before
the beginning of the model year in which the standards are to apply.
EPA has granted a waiver for the California LEV standards, and the
states can therefore adopt them.47,48 At the same time, section
202(b)(1)(C) explicitly prohibits EPA from changing the current ``Tier
1'' emissions standards for new motor vehicles in sections
202(a)(3)(B)(ii), (g), (h), and (i) before model year 2004.
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\4\7,48See Waiver of Federal Preemption: California Low Emission
Vehicle Standards (Jan. 8, 1993).
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Therefore, no options other than the LEV program are currently
available to achieve the necessary additional reductions from new motor
vehicles and engines. As explained in section V of this notice, EPA is
proposing to allow for the possibility that an alternative federal
program achieving comparable emissions reductions to the OTC LEV
program may be developed. But the possibility that such an alternative
program can be developed in the future does not contradict the
conclusion that the only option currently available to the states to
achieve the required reductions in new motor vehicle emissions (the LEV
program) is necessary.
EPA believes that the OTC LEV program would be reasonable and
practicable in the OTR. EPA granted California a waiver for its LEV
program on January 8, 1993 based on the finding required under section
209(b) of the Act.\49\ In addition, when the California Air Resources
Board (CARB or the Board) initially approved its LEV regulations in
1990, it directed CARB to report biennially to the Board on the status
of implementation of the regulations. The staff provided the Board with
the first such report at a June 11, 1992 public meeting. At the time
the Board found that the low-emission vehicle standards continued to be
technologically feasible within the required time frames, and
accordingly no changes to the standards or phase-in schedule were
needed.\50\
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\49\In EPA's waiver decision regarding California's LEV program,
the EPA Administrator stated, ``Based on EPA's review of this
record, I find reasonable and so adopt California's finding that
there is adequate leadtime to permit the development of technology
necessary to meet those standards giving appropriate consideration
to the cost of compliance within the required time frame.'' Waiver
of Federal Preemption; California Low-Emission Vehicle Standards at
69 (Jan. 8, 1993).
\50\See letter from Executive Officer James Boyd to EPA
Administrator Carol Browner (July 21, 1994). The Board and staff did
recognize that a variety of amendments would be appropriate to
augment the LEV regulations, make them clearer, and facilitate their
implementation. This recognition led to the adoption of several LEV
``follow-up'' amendments, which were formally adopted by the Board.
On September 22, 1993, CARB sent a letter requesting that EPA
confirm the Board's determination that these amendments fall within
the scope of the January 8, 1993 waiver for the California LEV
Program. EPA has not yet acted on this request.
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CARB held its second LEV ``status'' hearing May 12 and 13, 1994, at
which the Chairwoman stated in her closing statement that CARB had
``had a successful launch of the Low Emission Vehicle program.''\51\
The CARB Staff Report that preceded the May meeting stated that many of
the technologies that will be required for LEV ``are already in
production in some vehicle models, and the remaining technologies are
now developed to near commercial levels of readiness.''\52\ In fact,
CARB has to date certified several categories of LEVs, including TLEVs
(produced and sold), light-duty and medium-duty ULEVs (natural gas),
and ZEVs.
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\51\See Closing Statement by CARB Chairwoman Jacqueline Schafer
at Public Meeting to Review Low-Emission Vehicle Standards at 1 (May
13, 1994).
\52\See CARB Staff Report: 1994 Low-Emission Vehicle and Zero-
Emission Vehicle Program Review, at 17 (April 1994).
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Furthermore, two states, New York and Massachusetts, believed the
California LEV program to be reasonable and practicable enough to adopt
the LEV program in legislation and regulations witho
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