Request From Massachusetts Concerning Zero Emission Vehicle Requirements

ENVIRONMENTAL PROTECTION AGENCY

[FRL-6316-2]

Request From Massachusetts Concerning Zero Emission Vehicle

Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for comment.

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SUMMARY: The Attorney General of the Commonwealth of Massachusetts has

requested that EPA respond to certain questions related to whether

Massachusetts's regulations requiring the sale of a certain number of

zero emission vehicles in the calendar years 1998-2000 are preempted by

the Clean Air Act. The questions have arisen in the context of a

decision by the United States Court of Appeals for the First Circuit in

a litigation between Massachusetts and automobile manufacturers. This

notice announces the opening of a thirty day period for the submission

of written comments regarding the issues raised by the Court decision

and the request from Massachusetts.

DATES: Written comments must be received on or before April 26, 1999

ADDRESSES: Written comments regarding the request should be submitted,

in duplicate, to Public Docket No. A-99-08 at the following address:

U.S. Environmental Protection Agency, Air Docket (6102), Room M-1500,

Waterside Mall, 401 M Street, SW., Washington, D.C. 20460. The Agency

also requests that a separate written copy be sent to the contact

person at the address noted below. The information received from

Massachusetts, as well as any written comments received from interested

parties, is available for public inspection in the Air Docket at the

above address during from 8:00 a.m. to 5:30 p.m Monday to Friday,

except on government holidays. The telephone number for EPA's Air

Docket is (202) 260-7548. A reasonable fee may be charged by EPA for

copying docket materials, as provided in 40 CFR part 2.

FOR FURTHER INFORMATION CONTACT: For more information about this

document, please contact Michael Horowitz, Office of General Counsel

(2344), 401 M St., SW, Washington, DC 20460; telephone (202) 260-8883;

fax (202) 260-0586; and e-mail: [email protected]

SUPPLEMENTARY INFORMATION: On December 29, 1998, the U.S. Court of

Appeals for the First Circuit issued a decision in American Automobile

Manufacturers Ass'n v. Massachusetts Department of Environmental

Protection, 163 F.3d 74 (1st Cir. 1998). In that decision, the court

determined that it would allow EPA an opportunity to rule on certain

issues relevant to whether Massachusetts's requirement that automobile

manufacturers deliver for sale a certain number of zero emission

vehicles (``ZEVs'') in the years 1998-2000 violated the Clean Air Act.

The court therefore provided Massachusetts with ``a reasonable

opportunity to obtain a ruling from the EPA. * * * However, if no

agency ruling is forthcoming within 180 days from the date this opinion

issues, the parties shall so notify this court. We will then decide the

issues before us without the EPA's guidance.''

Pursuant to the court's decision, on January 28, 1999, the Attorney

General of the Commonwealth of Massachusetts sent a letter to the

Administrator requesting EPA's opinion regarding the questions arising

from the case.

I. Background

This case arises from Massachusetts's regulations requiring that

certain automobile manufacturers produce and deliver for sale in

Massachusetts a combined total of 750 ZEVs during calendar years 1998

and 1500 ZEVs during each calendar years 1999 and 2000. There are also

certain reporting requirements related to these regulations. This case

is the latest in a series of law suits that automobile manufacturers

have brought against Massachusetts and New York related to those

states' incorporation of California's Low Emission Vehicle program into

their state laws. The following is a brief summary of the critical

federal statutory provisions and the events leading up to the Court's

decision. For further information, please review the December 28, 1998

decision and the briefs filed in that case, as well as the earlier

decisions resulting from the suits brought by manufacturers against New

York and Massachusetts. 1

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\1\ The briefs have been placed in the docket. The significant

prior decisions in the Massachusetts litigation are as follows: AAMA

v. Massachusetts DEP, 998 F. Supp. 10 (D. Mass. 1997); AAMA v.

Massachusetts DEP, 31 F.3d 18 (1st Cir. 1994); AAMA v. Greenbaum,

No.93-10799-MA, 1993 WL 443946 (D. Mass. Oct. 27, 1993). The

significant decisions in the New York litigations are: AAMA v.

Cahill, 152 F.3d 196 (2d Cir. 1998); AAMA v. Cahill, 973 F. Supp.

288 (N.D.N.Y. 1997); Motor Vehicle Mfrs. Ass'n. (``MVMA'') v. New

York Dep't of Envtl. Cons. (``New York DEC''), 79 F.3d 1298 (2d Cir.

1996); MVMA v. New York DEC, 869 F. Supp. 1012 (N.D.N.Y. 1994); MVMA

v. New York DEC, 17 F.3d 521 (2nd Cir. 1994).

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[[Page 14718]]

A. Relevant Clean Air Act Provisions

Under section 209(a) of the Clean Air Act (``CAA''), states and

localities are prohibited from adopting or attempting to enforce ``any

standard relating to the control of emissions from new motor

vehicles.'' Section 209(a) also prohibits state approvals ``relating to

the control of emissions from any new motor vehicle * * * as condition

precedent to the initial sale, titling * * * or registration of such

motor vehicle.'' However, section 209(b) of the Act permits the state

of California to request an EPA waiver from this prohibition if

California determines that its standards are, in the aggregate, at

least as protective of public health and welfare as applicable federal

standards. EPA must grant this request unless it finds one of the

following: (1) California's ``in the aggregate'' determination was

arbitrary and capricious; (2) California does not need standards to

meet compelling and extraordinary conditions; or (3) California's

standards and accompanying enforcement procedures are not consistent

with Clean Air Act section 202(a).

There is no similar provision for other states to obtain a waiver

from the prohibitions in section 209(a). However, under CAA section

177, once California has promulgated its motor vehicle program, other

states may adopt and enforce their own standards as long as such

standards are ``identical to the California standards for which a

waiver has been granted for such model year'' and such standards have

been adopted at least two years before commencement of such model year.

Section 177 further states:

Nothing in this section * * * shall be construed as authorizing

any such State to prohibit or limit, directly or indirectly, the

manufacture or sale of a new motor vehicle * * * that is certified

in California as meeting California standards, or to take any action

of any kind to create, or have the effect of creating, a motor

vehicle * * * different than a motor vehicle * * * certified in

California under California standards (a ``third vehicle'') or

otherwise create such a ``third vehicle'.

B. Factual Background

In 1990, the California Air Resources Board (``CARB'') adopted its

Low Emission Vehicle (``LEV'') program. One of the elements of that

program was a requirement, beginning in model year 1998, that two

percent of the cars offered for sale in California by a manufacturer

must be ZEVs. That percentage would increase to five percent in model

year 2001 and ten percent in model year 2003. California received a

waiver for its LEV program, including the ZEV sales requirement, in

1993. 58 FR 4166 (Jan. 13, 1993).

New York and Massachusetts both promulgated regulations adopting

California's LEV program, including the ZEV mandate, into their state

regulations. Auto manufacturers challenged both state programs in

federal court, claiming that the state programs were prohibited under

section 209 and were not authorized under the provisions of section

177. In both instances, manufacturers were not successful in their

challenges. Courts in both the 1st and 2nd Circuit ruled that the state

regulations were permitted under section 177.

However, in 1996, California amended its regulations to eliminate

its ZEV sales mandate until the 2003 model year. Later in 1996,

California entered into Memoranda of Agreement (``MOAs'') with the

seven largest automobile makers. As part of these MOAs, the automobile

manufacturers agreed to supply a certain number of ZEVs in the state of

California during calendar years 1998-2000. Massachusetts then revised

its LEV regulations by replacing the preexisting ZEV sales mandate for

the 1998-2002 model years with the ZEV sales portions of the MOAs,

using the ZEV sales numbers in the MOAs.

AAMA sued Massachusetts, claiming the revised ZEV regulations

violated section 209(a) of the Clean Air Act.2 The District

Court in Massachusetts ruled in favor of the auto

manufacturers.3 However, on appeal, the 1st Circuit

refrained from deciding the case, preferring instead to allow EPA to

provide its views on the issue, if it chooses to do so. ``This matter

is plainly within the EPA's primary jurisdiction, and its resolution

could clearly benefit from a deep familiarity with the CAA and the

public policy considerations that underlie these statutory provisions.

We therefore refer this issue to the EPA for its consideration.''

4 The court then stayed further judicial action to allow

Massachusetts the opportunity to obtain a ruling from EPA on the issues

relevant to deciding the case. However, if EPA does not rule within 180

days of the court's decision, the court has indicated that it will then

decide the issues without EPA's guidance. Pursuant to the court's

decision, the Massachusetts Attorney General sent a letter to the

Administrator requesting EPA's opinion regarding the issues arising

from the court's opinion.

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\2\ AAMA also sued New York, which had not amended its ZEV

mandate at all. The Second Circuit found for the auto makers in that

case. AAMA v. Cahill, 152 F. 3d 196 (2d Cir. 1998).

\3\ AAMA v. Massachusetts DEP, 998 F. Supp. 10 (D. Mass. 1997).

\4\ AAMA v. Massachusetts DEP, 163 F. 3d 74, 83 (1st Cir. 1998).

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EPA believes it is appropriate to seek comments from the public on

this request from Massachusetts. EPA therefore requests that any

interested parties provide comments on the issues raised by the Court's

opinion and the letter from Massachusetts.

II. Procedures for Public Participation

EPA will keep the record open until April 26, 1999. Upon expiration

of the comment period, EPA will determine the appropriate response, if

any, to the request from the Massachusetts Attorney General. Persons

seeking information relevant to this proceeding may review the

information provided at the EPA Air Docket. (Docket No. A-99-08).

Persons with comments containing proprietary information must

distinguish such information from other comments to the greatest

possible extent and label it as ``Confidential Business Information''

(CBI). If a person making comments wants EPA to base its decision in

part on a submission labeled CBI, then a nonconfidential version of the

document which summarizes the key data or information should be

submitted for the public docket. To ensure that proprietary information

is not inadvertently placed in the docket, submissions containing such

information should be sent directly to the contact person listed above

and not to the public docket. Information covered by a claim of

confidentiality will be disclosed by EPA only to the extent allowed and

by the procedures set forth in 40 CFR part 2. If no claim of

confidentiality accompanies the submission when it is received by EPA,

it may be made available to the public without further notice to the

person making comments.

Dated: March 17, 1999.

Robert D. Brenner,

Acting Assistant Administrator for Air and Radiation.

[FR Doc. 99-7428 Filed 3-25-99; 8:45 am]

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