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.

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\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.

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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.

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\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.

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\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).

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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.

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\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).

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(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.

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\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).

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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.

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\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.

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\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).

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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.

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\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.

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\3\1Washington D.C. and Baltimore are combined in a single

modeling domain.

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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.

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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.

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\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.

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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).

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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.

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\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.

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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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