Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Massachusetts; Substitution of the California Low Emission Vehicle Program for the Clean Fuel Fleet Program (Opt Out)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA39-1-6772a; A-1-FRL-5136-7]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Massachusetts; Substitution of the California Low

Emission Vehicle Program for the Clean Fuel Fleet Program (Opt Out)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, the Environmental Protection Agency is

announcing approval of the State Implementation Plan submitted by the

Commonwealth of Massachusetts for the purpose of meeting the

requirement to submit the Clean Fuel Fleet Program or a substitute

program that meets the requirements of the Clean Air Act. EPA is

approving the State's plans for implementing a substitute program to

opt out of the Clean Fuel Fleet program. On November 15, 1993, the

Commonwealth of Massachusetts formally submitted a revision to their

SIP to require the sale of California certified low emitting vehicles

in Massachusetts beginning with model year 1995. Further, on May 11,

1994, the Commonwealth formally notified EPA of its decision to

substitute Massachusetts' version of the California Low Emission

Vehicle (MA LEV) Program for the Clean Fuel Fleet (CFF) Program as

provided for in section 182(c)(4)(B) of the Clean Air Act (CAA).

DATES: This final rule is effective on April 3, 1995 unless adverse or

critical comments are received by March 3, 1995, in which case the rule

will be withdrawn. If the rule is withdrawn, timely notice will be

published in the Federal Register.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,

Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, JFK Federal Building, Boston, MA 02203.

Copies of the documents relevant to this action are available for

public inspection during normal business hours, by appointment at the

Air, Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, One Congress Street, 10th floor, Boston,

MA 02203; Air and Radiation Docket and Information Center, U.S.

Environmental Protection Agency, 401 M Street SW, (LE-131), Washington,

DC 20460; and the Division of Air Quality Control, Department of

Environmental Protection, One Winter Street, 8th floor, Boston, MA

02108.

FOR FURTHER INFORMATION CONTACT: Damien Houlihan, (617) 565-3266.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(c)(4)(A) of the Clean Air Act requires certain States,

including Massachusetts, to submit a State Implementation Plan (SIP)

revision that includes measures to implement the Clean Fuel Fleet

Program (CFFP). Under this program, a certain specified percentage of

vehicles purchased by fleet operators for covered fleets must meet

emission standards that are more stringent than those that apply to

conventional vehicles. Covered fleets are defined as fleets of 10 or

more vehicles that are centrally fueled or capable of being centrally

fueled. The program applies to 1998 and later model year vehicles in

the entire Commonwealth of Massachusetts which is comprised of two

separate nonattainment areas. Section 182(c)(4)(B) of the Act allows

states to ``opt out'' of the Clean Fuel Fleet Program by submitting for

EPA approval a SIP revision consisting of a program or programs that

will result in at least [[Page 6028]] equivalent long term reductions

in ozone producing and toxic air emissions as a CFFP would.

In accordance with section 182(c)(4), the Commonwealth of

Massachusetts submitted a commitment to either adopt and submit a Clean

Fuel Fleet Program or an equivalent substitute program. This was

submitted for parallel processing on November 13, 1992, and a formal

request was submitted on May 7, 1993. EPA proposed conditional approval

of Massachusetts' action on June 7, 1993 (58 FR 31928). However, prior

to final EPA action on Massachusetts' commitment, the Court of Appeals

for the District of Columbia held that EPA's conditional approval

policy was contrary to law. The court held that a base commitment from

a state was not sufficient to warrant conditional approval from EPA

under section 110(k)(4) of the Act. NRDC v. EPA, 22 F.3d 1125 (D.C.

Cir. 1994). Therefore, EPA could not take final action on

Massachusetts' commitment.

In fashioning a remedy for EPA's improper use of its conditional

approval authority, the court did not want states to be penalized for

their reasonable reliance on EPA's actions. Massachusetts submitted a

commitment to adopt a substitute for the CFFP by May 15, 1994, in

reliance on EPA guidance, and the Commonwealth fulfilled that

commitment by adopting and submitting the Low Emission Vehicle (LEV)

program regulations on May 11, 1994. Therefore, EPA does not believe

that Massachusetts should lose its ability to opt-out of the CFFP

because of EPA's improper use of its conditional approval authority.

EPA is today taking action on Massachusetts' submissions of November

15, 1993 and May 11, 1994, which are intended to substitute MA LEV for

the CFF program.

The Act requires states to observe certain procedural requirements

in developing implementation plan revisions for submission to EPA.

Sections 110(a)(2) and 172(c)(7) of the Act require states to provide

reasonable notice and opportunity for public comment before accepting

the submitted measures. Section 110(1) of the Act also requires states

to provide reasonable notice and hold a public hearing before adopting

SIP provisions.

EPA must also determine whether a state's submittal is complete

before taking further action on the submittal. See section 110(k)(1).

EPA's completeness criteria for SIP submittals are set out in 40 CFR

part 51, appendix V (1993).

II. State Submittal

Massachusetts submitted a SIP revision on November 15, 1993, and

supplemented it on May 11, 1994, which substituted a low emission

vehicle (LEV) program for the Clean Fuel Fleet program. Massachusetts

held public hearings on October 30 and 31, 1991; November 1, 1991;

February 8, 9, 10 and 12, 1993; and October 1, 5-9, 1993 to entertain

public comment on its SIP revisions; these hearings included the

Commonwealth's proposal to opt out of the Clean Fuel Fleet Program with

LEV. Massachusetts' regulation 310 CMR 7.40, ``California Low Emission

Vehicle Program'' (the LEV program), was adopted by the Commonwealth on

January 31, 1992. EPA reviewed the Commonwealth's submission for

completeness, in accordance with the completeness criteria, and found

the submittals to be complete on October 25, 1994.

Massachusetts has limited its proposed LEV Program to passenger

vehicles and light-duty trucks at the present time. When California Air

Resource Board finalizes its standards for the remainder of the vehicle

classes, Massachusetts will examine the potential air quality benefits

of adopting the emission standards for medium duty vehicles, heavy-duty

trucks, motorcycles, and off-highway equipment. By adopting the program

for passenger vehicles and light-duty trucks, Massachusetts expects to

decrease VOC and NOX emissions far in excess of what would be

achieved from a CFF program (namely, 42 tons per summer day of VOC and

35 tons per summer day of NOx as compared to 1.95 VOC and 0.99 NOx from

a CFF program, long term). The Commonwealth exercised its choice to

substitute enough equivalent emission reductions credit from its LEV

program for the CFF program so that, of the total reductions obtained

from the LEV program, only 1.95 tons per summer day VOC and 0.99 tons

per summer day NOx will apply as a substitute for the CFF program.

III. Analysis of State Submission

Section 182(c)(4) of the Clean Air Act, which allows states

required to implement a Clean Fuel Fleet program to ``opt out'' of the

program by submitting a SIP revision consisting of a substitute

program, requires that the substitute program results in equal or

greater emission reductions than does the Clean Fuel Fleet program.

Also, EPA can only approve substitute programs that consist exclusively

of provisions other than those required by the Clean Air Act for the

area. Massachusetts' LEV program satisfies both of these requirements.

Section 182(c)(4)(B) states that a measure can be substituted for

all or a portion of the CFF program, and that such a substitute program

will be approvable if it achieves long-term emission reductions

equivalent to those that would have been achieved by the portion of the

CFF program for which the measure is to be substituted.

Massachusetts, in exercising its option under section 177 of the

Clean Air Act, has adopted a LEV program which affects all new light

duty vehicles, specifically passenger cars and light duty trucks under

5750 pounds Gross Vehicle Weight Rating (GVWR) for vehicle model years

1995 and later. The MA LEV program is a far reaching program designed

to improve the emissions performance of vehicles over a long period of

time. The program sets forth five different sets of emission standards,

and vehicle manufacturers may market any combination of vehicles

provided that the annual average emissions of each manufacturer's fleet

complies with a fleet average limit that becomes more stringent each

year. In addition, Massachusetts' LEV program requires manufacturers to

begin to market a fixed percentage of zero emission vehicles (ZEVs) in

model year 1998. The ZEV requirement will help ensure that the LEV

program will result in reductions of ozone forming emissions to a

degree that is at least equivalent to the Clean Fuel Fleet program.

Massachusetts' LEV program will assure reductions of ozone-forming

and air toxic emissions that are at least equivalent to those that

would have been realized through implementation of a Clean Fuel Fleet

program. The LEV program is a statewide program affecting the sale of

all light duty vehicles. A Clean Fuel Fleet program affects a much

smaller subset of vehicles, i.e. new covered fleet vehicles, that are

already included in the LEV program. The LEV program has fleet average

emission standards that are comparable to the Clean Fuel Vehicle (CFV)

emission standards that apply to clean fuel fleet vehicles. With

respect to long term emission standards for non-methane organic gases

(NMOG), the Clean Fuel Fleet program requires that 70% of new covered

light duty vehicle and light duty truck purchases in the affected

fleets in model year 2000 and later meet the CFV emission standard of

0.075 grams/mile, while the California LEV program requires that the

long term NMOG standard for 100% of all light duty vehicles be no more

than 0.062 grams per mile (model year 2003 and

[[Page 6029]] later).1 Based on the above considerations,

Massachusetts' LEV program has the potential to achieve emission

reductions far in excess of those expected by the Clean Fuel Fleet

program. The LEV program also has an earlier implementation date,

beginning with model year 1995, than the fleet program.

\1\Massachusetts does not currently have an enforceable NMOG

standard as part of its program, but it is in the process of

adopting one. Given the lack of an enforceable NMOG standard, there

is no assurance that Massachusetts' LEV program will achieve the

same emission benefits as if it had adopted California's NMOG

average. Nonetheless, several factors support EPA's belief that the

reductions of the LEV program will be equal to or greater than the

reductions from a CFFP. First, Massachusetts does have a ZEV sales

mandate, which might by itself provide reductions equal to or

greater than the CFFP. Even if Massachusetts did not have a ZEV

mandate, its LEV program still provides sufficient reductions to

qualify as a substitute. Massachusetts' LEV program prohibits auto

manufacturers from selling in Massachusetts any vehicle in the

regulated class that is not certified in California. Manufacturers

generally do not ``double-certify'' vehicles in California (i.e.,

manufacture both a LEV and a ULEV version of the same model). Auto

manufacturer have said that the mix of vehicles sold in California

does not differ significantly from the mix sold in Massachusetts.

Given all these factors, it is unlikely that the NMOG average of

vehicles sold in compliance with Massachusetts' LEV program would be

so low that the LEV program would not reduce emissions at least as

much as would a CFFP.

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EPA, auto manufactures, and states are currently considering the

possibility of developing a voluntary national LEV-equivalent motor

vehicle emission control program. See 59 FR 48664 (Sept. 22, 1994) and

59 FR 53396 (Oct. 24, 1994). EPA does not expect that today's approval

will impede the development or implementation of such a program. If

Massachusetts were to participate in a LEV-equivalent program, it would

have the opportunity to revise its clean fuel fleet program

substitution.

EPA is publishing this rule without prior proposal because EPA

views this as a noncontroversial amendment and anticipates no adverse

comments. This action will be effective April 3, 1995 unless, by March

3, 1995, adverse or critical comments are received.

If such comments are received, this rule will be withdrawn before

the effective date by publishing a subsequent document. In the Proposed

Rules Section of this Federal Register, EPA has proposed the same

approvals on which it is taking final action in this rulemaking. If

adverse comments are received in response to this action, EPA will

address them as part of a final rulemaking associated with that

proposed action. EPA will not institute a second comment period on this

action. If no adverse comments are received, the public is advised that

this rule will be effective April 3, 1995.

Final Action

EPA is approving Massachusetts LEV program as a substitute for a

Clean Fuel Fleet program, as submitted by the state on November 15,

1993 and May 11, 1994, pursuant to sections 177 and 182(c)(4)(B) of the

Clean Air Act.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future document will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and Table 3 revisions (54 FR 2222) from the

requirements of section 3 of Executive Order 12291 for a period of two

years. The US EPA has submitted a request for a permanent waiver for

Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the

temporary waiver until such time as it rules on EPA's request. This

request continues in effect under Executive Order 12866 which

superseded Executive Order 12291 on September 30, 1993.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the Commonwealth is already imposing. Therefore, because the

federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the federal-state relationship

under the CAA, preparation of a regulatory flexibility analysis would

constitute federal inquiry into the economic reasonableness of state

action. The CAA forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. 7410 (a)(2).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State implementation plan. Each request for revision to

the State implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by April 3, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Note: Incorporation by reference of the State Implementation

Plan for the Commonwealth of Massachusetts was approved by the

Director of the Federal Register on July 1, 1982.

Dated: December 19, 1994.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart W--Massachusetts

2. Section 52.1120 is amended by adding paragraph (c)(103) to read

as follows:

Sec. 52.1120 Identification of plan.

* * * * * *

(c) * * *

(103) Revisions to the State Implementation Plan submitted by the

Massachusetts Department of Environmental Protection on November 15,

1993 and May 11, 1994, substituting the California Low Emission Vehicle

program for the Clean Fuel Fleet program.

(i) Incorporation by reference.

(A) Letters from the Massachusetts Department of Environmental

Protection [[Page 6030]] dated November 15, 1993 and May 11, 1994,

submitting a revision to the Massachusetts State Implementation Plan

which substitutes the California Low Emission Vehicle program for the

Clean Fuel Fleet program.

(B) A regulation dated and effective January 31, 1992, entitled ``U

Low Emission Vehicle Program'', 310 CMR 7.40.

(C) Additional definitions to 310 CMR 7.00 ``Definitions'' (dated

and effective 1/31/92) to carry out the requirements set forth in 310

CMR 7.40.

(ii) Additional materials.

(A) Additional nonregulatory portions of the submittal.

3. Table 52.1167 of Sec. 52.1167 is amended by adding new entries

to existing state citation for 310 CMR 7.00, ``Definitions''; and by

adding new state citation for 310 CMR 7.40, ``U Low Emission

Vehicles'', to read as follows:

Sec. 52.1167 EPA-approved Massachusetts State regulations.

* * * * *

Table 52.1167.--EPA-Approved Rules and Regulations

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Date Federal Comments/

State citation Title/subject submitted Date approved by Register 52.1120 (c) unapproved

by State EPA citation sections

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* * * * * *

310 CMR 7.00.... Definitions..... 11/15/93 February 1, 1995 [Insert FR 103 Approving

05/11/94 citation from additional

published definitions

date]. for.

* * * * * *

*

310 CMR 7.40.... Low emission 11/15/93 February 1, 1995 [Insert FR 103 Substitute for

vehicle. 05/11/94 citation from CFFP.

published

date].

* * * * * *

*

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[FR Doc. 95-2491 Filed 1-31-95; 8:45 am]

BILLING CODE 6560-50-P