Approval and Promulgation of Implementation Plans; State of New York; Clean Fuel Fleet Opt Out

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 138, NY20-1-6729a, FRL-5124-5]

Approval and Promulgation of Implementation Plans; State of New

York; Clean Fuel Fleet Opt Out

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, the Environmental Protection Agency (EPA) is

announcing partial approval and partial disapproval of the State

Implementation Plan submitted by the State of New York for the purpose

of meeting the requirement to submit the Clean Fuel Fleet program

(CFFP) 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 light duty vehicle portion of the

CFFP and disapproving the State's commitment to adopt a CFFP for heavy

duty vehicles at a future date.

DATES: This final rule is effective on March 7, 1995 unless adverse or

critical comments are received by February 6, 1995. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: All comments should be addressed to:

William S. Baker, Chief, Air Programs Branch, Air and Waste Management

Division, Environmental Protection Agency, Region II Office, 26 Federal

Plaza, New York, New York 10278.

Copies of the state submittals are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Air Docket 6102, 401 M Street, SW.,

Washington, DC 20460.

Environmental Protection Agency, Region II Office, Air Programs Branch,

26 Federal Plaza, Room 1034A, New York, New York 10278.

New York State Department of Environmental Conservation, Division of

Air Resources, 50 Wolf Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Environmental

Engineer, Technical Evaluation Section, Air Programs Branch,

Environmental Protection Agency, 26 Federal Plaza, Room 1034A, New

York, New York 10278, (212) 264-2517.

SUPPLEMENTARY INFORMATION:

I. Background

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

including [[Page 2023]] New York, to submit for EPA approval 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 in the New York

portion of the New York-Northern New Jersey-Long Island nonattainment

area beginning in 1999. Section 182(c)(4)(B) of the Act allows states

to ``opt out'' of the CFFP by submitting for EPA approval a SIP

revision consisting of a program or programs that will result in at

least equivalent long term reductions in ozone-producing and toxic air

emissions as achieved by the CFFP. The Clean Air Act directs EPA to

approve a substitute program if it achieves long-term reductions in

emissions of ozone-producing and toxic air pollutants equivalent to

those that would have been achieved by the CFFP or the portion of the

CFFP for which the measure is to be substituted.

The State of New York submitted on November 13, 1992 a SIP revision

which committed it to submit a substitute program or programs in lieu

of the CFFP, or the CFFP itself, by May 15, 1994. Prior to EPA action

on New York's commitment, the Court of Appeals for the District of

Columbia ruled that EPA's conditional approval policy in general was

contrary to law. [NRDC v. EPA, 22 F.3d. 1125 (D.C. Cir. 1994)]. The

court held that a bare commitment from a state was not sufficient to

warrant conditional approval from EPA under section 110(k)(4) of the

Act. Therefore, following this decision, EPA could not approve New

York's commitment of November 1992.

However, in fashioning a remedy for EPA's improper use of it's

conditional approval authority, the NRDC Appellate court did not want

to penalize the states for their reliance on EPA's actions. EPA also

does not believe that New York should lose its opportunity to opt out

of the CFFP with a substitute program that meets the requirements of

section 182(c)(4)(B) because of EPA's failure to act on New York's

commitment, especially since New York has, in reliance on EPA advice,

submitted such a substitute program for EPA approval prior to any EPA

action on the commitment.

Therefore, EPA will consider all submissions made thus far by the

State that are intended to substitute for the CFFP, including that of

May 15, 1994 which transmitted the New York State Code of Rules and

Regulations Part 218, the State's low emission vehicle program and the

submission of August 9, 1994, supplementing the May 1994 submittal, in

conjunction with the November 1992 commitment.

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

New York submitted a SIP revision on May 15, 1994 (and supplemented

it on August 9, 1994) which substituted a low emission vehicle (LEV)

program for the light duty vehicle portion of the CFFP. The State

adopted the LEV program, New York's Part 218, ``Emission Standards for

Motor Vehicles and Motor Vehicle Engines,'' on April 28, 1992. New York

held public hearings on February 8 and 9, 1993 and on January 11, 1994

to entertain public comment on its 1992 and 1993 SIP revisions,

respectively; these hearings included the State's proposal to opt out

of the CFFP with LEV as a substitute program. EPA reviewed the State's

submission for completeness, in accordance with the completeness

criteria, and on September 1, 1994 found the submittals to be complete.

EPA notified New York in writing of this finding.

New York's submittal divides the CFFP into two separate

requirements; that portion which applies to light duty fleet vehicles,

and a second requirement for heavy duty fleet vehicles. This

interpretation is provided for in sections 182 and 246 of the Clean Air

Act (see part III. of this notice, ``Analysis of State Submission'').

The State exercised its choice to substitute enough emission reduction

credit from its LEV program for the light duty portion of the CFFP. New

York has not submitted a substitute for the heavy duty portion of the

CFFP. Nor has the State adopted the heavy duty fleet program.

III. Analysis of State Submission

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

required to implement a CFFP to ``opt out'' of the program by

submitting a SIP revision consisting of a substitute program, requires

that the substitute program result in emission reductions equal to or

greater than does the CFFP. Also, EPA can only approve such substitute

programs that consist exclusively of provisions other than those

required under the Clean Air Act for the area. New York's LEV program

satisfies both of these requirements as they pertain to the light duty

portion of the fleet program.

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

all or a portion of the CFFP, and 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 CFFP for

which the measure is to be substituted. Section 246 implies that the

CFFP can be subdivided into a light duty vehicle portion (up to 8,500

pounds gross vehicle weight rating (GVWR)) and a heavy duty vehicle

portion (from 8,501 pounds GVWR to 26,000 pounds GVWR). This is made

apparent most notably by section 246(f)(2)(B), which restricts the use

of Clean Fuel Fleet credits generated for either light or heavy duty

fleet vehicles to those classes, respectively. Credit trading between

weight classes is prohibited.

In recognizing the severable nature of the CFFP, New York has

chosen to submit a substitute measure, the State's LEV program, that is

intended to substitute for only the light duty portion of the CFFP. The

State must therefore implement a heavy duty CFFP which also complies

with section 246 of the Clean Air Act. New York is currently required

by state law to adopt and implement a heavy duty fleet program and

consequently has not chosen to opt-out of the heavy duty portion of the

CFFP. However, the State has not yet adopted a heavy duty fleet program

(New York's Clean Air Compliance Act called for adoption of the heavy

duty fleet program by May 15, 1994).

New York, 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 6,000

lbs. GVWR for vehicle model years 1994 and later. The LEV program is a

far reaching, technology-forcing program designed to improve the

emissions performance of vehicles over a long period of time. The

[[Page 2024]] LEV 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, New York's 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

assure that the LEV program will achieve a significant amount of ozone

forming emission reductions, beyond those achieved by the light duty

portion of the CFFP.

New York's LEV program will assure reductions of ozone-forming and

air toxics emissions that are at least equivalent to those that would

be realized through the light duty portion of a CFFP. Moreover, a light

duty CFFP would affect a much smaller subset of vehicles than the LEV

program, since the fleet vehicles affected by the CFFP would be limited

to a set yearly percentage of new vehicles purchased by fleet operators

of covered fleets, restricted to the New York State portion of the New

York-Northern New Jersey-Long Island nonattainment area. The LEV

program is a statewide program affecting the sale of all light duty

vehicles. The LEV program has fleet average emission standards that are

comparable to those established by the Clean Air Act for clean fuel

fleet vehicles in the CFFP. With respect to long term emission

standards for non-methane organic gases (NMOG), the CFFP requires that

70% of new light duty fleet vehicles purchased annually in covered

fleets have a standard of 0.075 grams per mile (model year 2000 and

later), while the 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 later).

While New York's LEV program does not cover vehicles in the weight

class range of 6,000 to 8,500 pounds GVWR, in its SIP revision New York

states that it will dedicate enough ozone forming and toxic emission

reduction credit as is necessary to fully substitute for the entire

light duty portion of the CFFP. Also, while the light duty portion of

the CFFP covers the 6,000 to 8,500 pound vehicle range, the State still

plans to adopt and implement a heavy duty fleet program, as required by

its Clean Air Compliance Act, which will include this vehicle weight

range.

The Clean Air Act also requires New York to adopt a CFFP that

applies to heavy duty vehicles. The long term emission standard for

heavy duty vehicles participating in the CFFP, independent of fuel

type, is a combined non-methane hydrocarbon (NMHC) plus nitrogen oxide

(NOx) standard of 3.8 grams per brake horsepower hour. This is about a

50 percent reduction from 1994 heavy duty diesel engine requirements

and would apply to 50 percent of affected heavy duty fleet vehicles for

model year 2000 and later. New York has not yet adopted a heavy duty

CFFP, nor has it submitted an adequate substitute measure for the heavy

duty portion of the CFFP. Although the State has legislative authority

to adopt and implement the heavy duty fleet program, EPA may not

approve a revision that lacks adopted measures.

As a result of these deficiencies, EPA finds, pursuant to 40 CFR

section 52.31(c)(2), that New York has failed to meet one or more of

the elements of submission required by the Act.

This notice initiates the sanction process, mandated by section

179(a)(2) of the Clean Air Act, as a result of the partial disapproval

of the New York SIP described in this notice. Section 179(b) of the

Clean Air Act prescribes certain mandatory sanctions that the

Administrator must impose upon a finding that a SIP revision submitted

by a state is not approvable. The two sanctions identified in the Clean

Air Act are: a requirement for a two-for-one emissions offsets in

nonattainment areas for construction of major new and modified sources,

and a cutoff of federal funding for certain highway projects. The

Administrator must impose the first sanction no later than eighteen

months of the date of the finding if the deficiency has not been

corrected and the second sanction no later than six months thereafter.

The offset sanction would apply at eighteen months and the highway

funding sanction at twenty-four months, although the Administrator can

change the sequence of the sanctions and accelerate their effective

date.

EPA, auto manufacturers, and states are currently considering the

possibility of developing a voluntary national LEV-equivalent motor

vehicle emission control program. See 59 FR 48664 (9/22/94) and 59 FR

53396 (10/24/94). EPA does not expect that this approval will impede

the development or implementation of such a program. If New York were

to participate in a LEV-equivalent program, it would have the

opportunity to revise its clean fuel fleet substitute program.

IV. Summary of Action

In this rule, EPA is taking final action to partially approve and

partially disapprove New York's SIP revision submitted to fulfill the

Clean Fuel Fleet requirements of the Clean Air Act. The State's adopted

Part 218 implementing the low emission vehicle program is an adequate

substitute for the light duty vehicle portion of the CFFP under section

182(c)(4).

The State has failed to fulfill the requirement to submit the

remaining portion of the CFFP, the heavy duty vehicle portion. EPA is

disapproving this portion of the State's submittal because it does not

consist of a State-adopted regulation.

Nothing in this rule should be construed as permitting or allowing

or establishing a precedent for any future request for revision to any

SIP. Each request for revision to any SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

EPA is publishing this rule without prior proposal because EPA

views this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, the EPA is proposing a notice and comment period to allow

for adverse or critical comments to be considered. Thus, this direct

final action will be effective March 7, 1995 unless, by February 6,

1995, adverse or critical comments are received.

If the EPA receives such comments, this rule will be withdrawn

before the effective date by publishing a subsequent notice that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this rule should

do so at this time. If no adverse comments are received, the public is

advised that this rule will be effective March 7, 1995. (See 47 FR

27073 and 59 FR 24059).

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

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

Clean Air Act do not create any new requirements, but

[[Page 2025]] simply approve requirements that the State is already

imposing. Therefore, because the federal SIP-approval does not impose

any new requirements, I certify that it does not have a significant

impact on any small entities affected. Moreover, due to the nature of

the federal-state relationship under the Clean Air Act, preparation of

a regulatory flexibility analysis would constitute federal inquiry into

the economic reasonableness of state action. The Clean Air Act forbids

EPA to base its actions concerning SIPs on such grounds. Union Electric

Co. v US EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

This rule may be withdrawn by EPA pursuant to procedures described

in this Federal Register notice. Before filing a petition for review,

potential petitioners under section 307(b)(1) of the Act are cautioned

to determine whether EPA has withdrawn the rule.

Under section 307(b)(1) of the Act, petitions for judicial review

of this rule must be filed in the United States Court of Appeals for

the appropriate circuit within 60 days from date of publication. 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 rule may not be challenged later in proceedings to

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

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation by reference, Nitrogen

dioxide, Ozone, Volatile organic compounds.

Dated: November 21, 1994.

William J. Muszynski,

Acting Regional Administrator.

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

amended as follows:

PART 52--[AMENDED]

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

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

Subpart HH--New York

2. Section 52.1670 is amended by adding new paragraph (c)(88) to

read as follows:

Sec. 52.1670 Identification of plan.

* * * * *

(c) * * *

(88) Revision to the New York State Implementation Plan (SIP) for

ozone, submitting a low emission vehicle program for a portion of the

Clean Fuel Fleet program, dated May 15, 1994 and August 9, 1994

submitted by the New York State Department of Environmental

Conservation (NYSDEC).

(i) Incorporation by reference. Part 218, ``Emission Standards for

Motor Vehicles and Motor Vehicle Engines,'' effective May 28, 1992.

(ii) Additional material.

May 1994 NYSDEC Clean Fuel Fleet Program description.

3. Section 52.1679 is amended by adding, in numerical order, a new

entry Part 218 to the table to read as follows:

Sec. 52.1679 EPA-approved New York State regulations.

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New York State regulation State effective date Latest EPA approval date Comments

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Part 218 ``Emission Standards for 5/28/92............. January 6, 1995 [60 FR 2025]..... ....................

Motor Vehicles and Motor Vehicle

Engines''.

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[FR Doc. 95-288 Filed 1-5-95; 8:45 am]

BILLING CODE 6560-50-P