95-288. Approval and Promulgation of Implementation Plans; State of New York; Clean Fuel Fleet Opt Out  

  • [Federal Register Volume 60, Number 4 (Friday, January 6, 1995)]
    [Rules and Regulations]
    [Pages 2022-2025]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-288]
    
    
    
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    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      
    ----------------------------------------------------------------------------------------------------------------
                                                                                                                    
            *                  *                  *                  *                  *                  *        
                                                            *                                                       
    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
    
    

Document Information

Effective Date:
3/7/1995
Published:
01/06/1995
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Direct final rule.
Document Number:
95-288
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.
Pages:
2022-2025 (4 pages)
Docket Numbers:
Region II Docket No. 138, NY20-1-6729a, FRL-5124-5
PDF File:
95-288.pdf
CFR: (2)
40 CFR 52.1670
40 CFR 52.1679