E7-17411. Approval and Promulgation of Implementation Plans; New Jersey; Zero Emission Vehicle Component of the Low Emission Vehicle Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency is proposing to approve, through model year 2011, New Jersey's low emission vehicle program related to the manufacture and sale of zero-emission vehicles, consistent with California's current low emission vehicle regulations. EPA previously approved New Jersey's low emission vehicle program, but did not take action on the zero-emission vehicle provisions. The intended effect of this action is to approve, as consistent with section 110(a)(2) of the Clean Air Act, a control strategy that will help New Jersey achieve attainment of the National Ambient Air Quality Standard for ozone.

DATES:

Comments must be received on or before October 4, 2007.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R02-OAR-2006-0920, by one of the following methods: http://www.regulations.gov: Follow the on-line instructions for submitting comments.

E-mail: [e-mail].

Fax: [phone].

Mail: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

Hand Delivery: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-2006-0920. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

FOR FURTHER INFORMATION CONTACT:

Matthew Laurita, [e-mail] at the Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, telephone number [phone], fax number [phone].

Copies of the State submittals are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.

New Jersey Department of Environmental Protection, Public Access Center, 401 East State Street 1st Floor, Trenton, New Jersey 08625.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. History of New Jersey's Low Emission Vehicle Program

II. California's Zero-Emission Vehicle Regulations

III. Status of New Jersey's Zero-Emission Vehicle Regulations

IV. Proposed EPA Action

V. Statutory and Executive Order Reviews

I. History of New Jersey's Low Emission Vehicle Program

In January 2004, the New Jersey Legislature passed legislation requiring the New Jersey Department of Environmental Protection (NJDEP) to adopt the California Low Emission Vehicle (LEV) program, known as the LEV II program. Pursuant to this legislation, New Jersey promulgated regulations to adopt a LEV program identical to California's LEV II program. New Jersey's regulations were adopted on November 28, 2005 and published in the New Jersey Register on January 17, 2006. On June 2, 2006, New Jersey submitted a state implementation plan (SIP) revision to EPA, seeking federal approval of the regulations.

On August 27, 2007, EPA approved New Jersey's LEV program into the New Jersey SIP, with the exception of two provisions (72 FR 48936). EPA took no action on the portions of New Jersey's LEV program related to the manufacture and sale of Zero-Emission Vehicles (ZEV), commonly referred to as the “ZEV mandate,” and portions of the rule related to emission standards for greenhouse gases. Today EPA is proposing to approve the ZEV portion of New Jersey's LEV program into the SIP, through model year 2011.

Section 209(a) of the CAA prohibits states from adopting or enforcing standards relating to the control of emissions from new motor vehicles or new motor vehicle engines. However, under section 209(b) of the CAA, EPA may grant a waiver of the section 209(a) prohibition to the State of California, thereby allowing California to adopt its own motor vehicle emissions standards. Before EPA may grant such a waiver, section 209(b) requires California to show that its standards will be “* * * in the aggregate, at least as protective of public health and welfare as applicable Federal standards* * * .” Section 209(b) further provides that EPA will grant a waiver unless it finds that: (1) The State's determination is “arbitrary and capricious,” (2) the State “does not need such State standards to meet compelling and extraordinary conditions,” or (3) the State's standards and accompanying enforcement procedures are “not consistent” with CAA section 202(a).

Section 177 of the CAA allows other states to adopt and enforce California's standards relating to the control of emissions from new motor vehicles, provided that, among other things, such state standards are identical to the California standards for which a waiver has been granted under CAA section 209(b). In addition to the identicality requirement, the state must adopt such standards at least two years prior to the commencement of the model year to which the standards will apply. All SIP revisions submitted to EPA for approval must also meet the requirements of CAA section 110. In our August 27, 2007, Final Rule (72 FR 48936), we found that New Jersey had met the requirements of CAA sections 177 and 110.

II. California's Zero-Emission Vehicle Regulations

The California Air Resources Board (CARB) adopted the first generation LEV regulations in 1990, which were effective through the 2003 model year. CARB adopted California's second generation LEV regulations (LEV II) following a November 1998 hearing. Subsequent to the adoption of the LEV II program in February 2000, the U.S. EPA adopted separate Federal standards known as the Tier 2 regulations (65 FR 6698). In December 2000, CARB modified the LEV II program to take advantage of some elements of the Federal Tier 2 regulations to ensure that only the cleanest vehicle models would continue to be sold in California.

In addition to LEV II emission requirements, minimum percentages of passenger cars and the lightest light-duty trucks, marketed in California by large or intermediate volume manufacturers, must be ZEVs. This is referred to as the ZEV mandate. California has modified the ZEV mandate several times since it took effect. In a December 19, 2003 revision to the ZEV regulation, CARB put in place an alternative compliance program (ACP) to provide auto manufacturers with several options to meet the ZEV mandate. The ACP established ZEV credit multipliers to allow auto manufacturers to take credit for meeting the ZEV mandate by selling more Partial Zero-Emission Vehicles (PZEVs) and Advanced-Technology Partial Zero-Emission Vehicles (ATPZEVs) than they are otherwise required to sell.

EPA granted California a section 209(b) waiver for its LEV II program on April 22, 2003 (68 FR 19811), but did not consider the ZEV regulations in its decision. In a September 23, 2004 letter to EPA, CARB requested that EPA find the 1999, 2001, and 2003 amendments to the ZEV regulations within the scope of previous waivers issued to California for model year 2003 through 2006 vehicles. In addition, CARB requested that EPA grant a section 209(b) waiver to enforce the ZEV regulations for 2007 and subsequent model year vehicles. In a December 28, 2006, notice (71 FR 78190), EPA found the 1999 through 2003 ZEV amendments to be within the scope of previous waivers as they pertain to 2003 through 2006 model year vehicles. In addition, EPA granted California's request for a section 209(b) waiver to enforce provisions of the ZEV regulations for model years 2007 through 2011. This waiver allows for other states to adopt and enforce ZEV regulations that are identical to California's, effective through model year 2011.

III. Status of New Jersey's Zero-Emission Vehicle Regulations

In New Jersey's November 28, 2005 adoption of the California LEV II program, the State adopted the entirety of California's regulations by reference, including the ZEV regulations. At that time, EPA had not issued a section 209(b) waiver of Federal pre-emption that would allow California to enforce the provisions of its ZEV regulations. Therefore, at that time New Jersey was also unable to enforce those provisions. When EPA issued its December 28, 2006 waiver to California, New Jersey became eligible to enforce its identical ZEV regulations for model years 2009 through 2011.

New Jersey requested that EPA approve the ZEV regulations into the SIP in a comment on EPA's March 21, 2007 Notice of Proposed Rulemaking (72 FR 13227), where EPA proposed approval of New Jersey's LEV program without the ZEV and greenhouse gas provisions. EPA has found that New Jersey's ZEV regulations meet the requirements of CAA Section 177 for model years 2009 through 2011, and is therefore proposing to approve the ZEV regulations into the New Jersey SIP for only those model years.

IV. Proposed EPA Action

EPA is proposing to approve the ZEV portion of New Jersey's low emission vehicle program that is identical to the California standards for which a waiver has been granted. Because the waiver granted for the ZEV portion of the program is limited to model year 2011 and earlier vehicles, EPA is only proposing approval of the ZEV provisions of New Jersey's LEV program for model years 2009 through 2011.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Authority: 42 U.S.C. 7401 et seq.

Dated: August 17, 2007.

Alan J. Steinberg,

Regional Administrator, Region 2.