Final Rule on Ozone Transport Commission; Low Emission Vehicle
Program for the Northeast Ozone Transport Region
[Federal Register: January 24, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 52 and 85
[FRL-5141-8]
RIN-2060-AF15
Final Rule on Ozone Transport Commission; Low Emission Vehicle
Program for the Northeast Ozone Transport Region
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: At the request of the Northeast Ozone Transport Commission
(OTC), EPA is announcing today its final determination that reduction
of new motor vehicle emissions throughout the Northeast Ozone Transport
Region (OTR) is necessary to mitigate the effects of air pollution
transport and to bring nonattainment areas in the OTR into attainment
(including maintenance) of the national ambient air quality standard
for tropospheric ozone (smog). This will assist OTR states in their
efforts to reduce ozone pollution to the level necessary to protect
public health. EPA today approves the recommendation of the OTC and
promulgates a rule under sections 184 and 110 of the Clean Air Act (the
Act) that requires emission reductions from new motor vehicles in the
OTR equivalent to the reductions that would be achieved by the OTC Low
Emission Vehicle (OTC LEV) program.
States would be relieved of their obligations under this
requirement if EPA were to find that all automakers had opted into an
acceptable LEV-equivalent new motor vehicle program. EPA believes that
such a program, which would be far better than OTC LEV, could be agreed
upon and adopted in the near future. States' obligations under this
requirement could also be met by a state's revision of its state
implementation plan to include the OTC LEV program. Today's action
gives states additional flexibility by also allowing a state the option
of adopting a set of measures that would achieve certain emission
reductions needed to prevent the state's adverse pollutant transport
impacts.
EPA is also promulgating a final rule today determining ``model
year'' for purposes of section 177 and part A of title II of the Act,
as that term is applied to on-highway motor vehicles.
DATES: The regulations to be codified in 40 CFR parts 51 and 52 are
effective February 15, 1995. The regulations to be codified in 40 CFR
part 85 are effective February 23, 1995.
ADDRESSES: Materials relevant to this final rule are contained in EPA
Air Docket No. A-94-11, located at the Air Docket (LE-131) of the EPA,
room M-1500, 401 M Street SW., Washington, DC 20460, tel. (202) 260-
7548. Interested parties may inspect the docket between the hours of 8
a.m. to 5:30 p.m., Monday through Friday except on federal holidays.
FOR FURTHER INFORMATION CONTACT: Mike Shields, Office of Mobile
Sources, US EPA, 401 M Street, SW., Washington, DC 20460, tel. (202)
260-7757.
SUPPLEMENTARY INFORMATION:
I. Outline and Introduction
This final rule preamble is organized into the following sections:
I. Outline and Introduction
A. Introduction
B. LEV-Equivalent Program
Cleaner Conventional Cars and Light-Duty Trucks
Advanced Technology Vehicles
Enforcement of a LEV-Equivalent Program
Criteria for an Acceptable LEV-Equivalent Program
State Obligations if an Acceptable LEV-Equivalent Program is
in Effect
C. Procedural Background
II. Description of Action
III. Statutory Framework for the SIP Call
A. Section 184
B. Section 110
C. Consistency of EPA Action with Sections 177, 202 and 209 of
the Act
IV. Basis for Requiring OTC LEV or a LEV-Equivalent Program
A. Necessity
Legal Interpretation of Necessity
Emission Reductions from OTC LEV or a LEV-Equivalent Program
are Needed
a. Magnitude of Reductions Needed for Attainment in 2005
b. Contribution Analysis
c. Analysis of Inventory and Options for Control Measures
i. Inventory Analysis
ii. Analysis of Options for Control Measures Without More
Stringent New Motor Vehicle Standards
iii. Determination Whether Reductions from OTC LEV or LEVEquivalent
Program Are Necessary
iv. ZEV Equivalency
d. The Effect of a Possible LEV-Equivalent Program on the Need
for OTC LEV.
e. Particular Circumstances of OTC LEV Program
f. Conclusions Regarding Need for OTC LEV or a LEV-Equivalent
Program for Purposes of Bringing Downwind States into Attainment by
the Dates Provided in Subpart 2 of Part D of Title I
OTC LEV or LEV-Equivalent Program is Also Needed for
Maintenance
a. Legal Analysis
b. Technical Analysis
Relevance of EPA Transport Policy
B. Consistency of OTC LEV with Section 177 of the Clean Air Act
Introduction
California Fuel Regulations
ZEV Production Mandate
Incorporation of Minor Provisions of the California LEV
Program
NMOG Fleet Average
Averaging, Trading, and Banking
Applicability of Section 177 in States Without Plan
Provisions Approved Under Part D of Title I
V. Action on OTC Petition, Issuance of Findings of SIP Inadequacy,
and Requirements for SIP Revisions
A. Action on OTC Petition and Explanation of SIP Call
B. State Requirements Under EPA SIP Call
C. Sanctions
VI. Determination of Model Year
VII. Effective Date
VIII. Statutory Authority
IX. Administrative Designation and Regulatory Analysis
X. Impact on Small Entities
XI. Paperwork Reduction Act
A. Introduction
In today's action, EPA takes a significant step towards the goal of
reducing smog in the heavily populated northeast region of the country.
The northeast has some of the most severe smog pollution in the
country--pollution reaches levels much higher than are healthy. Groundlevel
ozone, the main harmful ingredient in smog, is produced by the
combination of volatile organic compounds (VOCs) and nitrogen oxides
(NOX).<SUP>1 The chemical reactions that create smog take place
while the pollutants are being blown through the air by the wind, which
means that smog can be more severe miles away from the source of
pollution than it is at the source.
\1\In the upper atmosphere, or stratosphere, ozone occurs
naturally and forms a protective layer, which shields us from the
sun's harmful ultraviolet rays. However, in the lower atmosphere, or
at ``ground level,'' man-made ozone can cause a variety of problems
to human health, crops and trees.
Ground-level ozone causes health problems because it damages lung
tissue, reduces lung function, and sensitizes the lungs to other
irritants. Scientific evidence indicates that ambient levels of ozone
not only affect people with impaired respiratory systems, such as
asthmatics, but healthy adults and children as well. Exposure to ozone
for six to seven hours at relatively low concentrations has been found
to reduce lung function significantly in normal, healthy people during
periods of moderate exercise. This decrease in lung function is often
accompanied by such symptoms as chest pain, coughing, nausea, and
pulmonary congestion.
Though these effects are not as well established in humans, animal
studies
[[Page 4713]]
have demonstrated that repeated exposure to ozone for many months can
produce permanent structural damage in the lungs and accelerate the
rate of lung function loss, as well as the lung aging period. Each year
ground-level ozone is also responsible for several billion dollars
worth of agricultural crop yield loss. It also causes noticeable foliar
damage in many crops and species of trees. Studies also indicate that
current ambient levels of ozone are responsible for damage to forests
and ecosystems.As part of efforts to reduce harmful levels of smog,
today's action approves the recommendation of an organization of
northeastern states that EPA require all the northeastern states to
adopt the California car program to reduce significantly the pollution
emitted by new cars and light-duty trucks. This requirement could be
met either by state adoption of the California car program or by having
a nationwide alternative car program in effect that would achieve
emissions reductions at least equivalent to what the California car
program would achieve. Motor vehicles are a significant cause of smog
because of their emission of VOCs and NO<INF>X. EPA has projected that,
without the California car (or an equivalent) program in the
northeastern states, highway vehicles will account for approximately
3812f NOXand 22272f VOC anthropogenic (man-made) emissions in
2005. EPA currently estimates that VOC emissions should be reduced by
approximately 95 tons per day and NOXemissions by approximately
195 tons per day as a result of today's action.<SUP>2
\2\These emissions estimates are based on the most accurate data
currently available. The Agency continues to analyze emissions data
and modeling assumptions.
Since smog travels across county and state lines, it is essential
for state governments and air pollution control agencies to cooperate
to solve the problem. This is particularly true in the denselypopulated
northeast--for example, the smog that causes health problems
in New York City is the result, in part, of cars driven in
Pennsylvania, Maryland and elsewhere in the northeast. Through the
Ozone Transport Commission (OTC), the northeastern states have made
major strides in developing region-wide strategies for achieving
healthy air quality. Today's action, a further step in implementing the
OTC's region-wide approach, is necessary for the region to attain and
maintain healthy air quality.
Although EPA believes that the northeastern states cannot achieve
healthy air quality unless their neighbors within the northeast adopt
the California car program or a nationwide program is in effect,
today's action gives the states much flexibility in filling this need.
Today's action sets broad requirements that states must meet, but
otherwise gives states as much flexibility as the Clean Air Act allows
in structuring and implementing their motor vehicle programs. EPA will
continue to work with the states to help develop and establish
California car programs that work well regionally. Furthermore, EPA
continues to support the efforts of parties who are working on a
possible new nationwide approach to decreasing emissions from motor
vehicles and believes such a nationwide program could be superior to
region-wide adoption of the California car program. Such a nationwide
program could relieve states of having to respond to today's SIP call.
Finally, if an individual state achieves sufficient emission reductions
from programs other than a new motor vehicle program (and other than
the broadly practicable measures discussed later in this notice), that
state will be allowed to do so instead of adopting the California car
program.
B. LEV-Equivalent Program
Concurrently with processing the OTC recommendation, EPA has
explored the possibility of a LEV-equivalent program.<SUP>3 As
explained below, EPA believes the OTC LEV program will provide
significant benefits and is necessary to help the northeast achieve air
quality goals. Nonetheless, as EPA stated in the SNPRM and at numerous
public meetings, EPA believes that a LEV-equivalent program could
provide far greater environmental and public health benefits to the OTR
and the nation, and do so more efficiently than would the OTC LEV
program. Under the Clean Air Act, however, such a program can only be
achieved by agreement of the relevant parties--it cannot be imposed
unilaterally by EPA or the states. In an effort to develop a LEVequivalent
program, EPA and the parties have been involved in intensive
and open discussions, particularly under the Clean Air Act Advisory
Committee's Subcommittee on Mobile Source Emissions and Air Quality in
the Northeast States that EPA established in August 1994.
\3\In this notice, a ``LEV-equivalent program'' is an
alternative voluntary nationwide program that would achieve emission
reductions from new motor vehicles in the OTR equivalent to or
greater than would be achieved by the OTC LEV program and that would
advance motor vehicle emission control technology. This definition
is based on comments EPA received and discussions at meetings of the
Clean Air Act Advisory Committee's Subcommittee on Mobile Source
Emissions and Air Quality in the Northeast States that indicated
that the alternative voluntary federal program that the interested
parties are discussing would have an advanced technology component.
EPA believes that a LEV-equivalent program would have significant
advantages when compared to OTC LEV. First, a LEV-equivalent program
would achieve the same or greater emission reductions for the OTR. Two
factors are primarily responsible for the emissions equivalence. The
LEV-equivalent program would provide for earlier introduction of
Transitional Low Emission Vehicles (``TLEVs'') in the OTR than would be
required under the OTC LEV petition. Also, 2001 and later model year
vehicles that are originally purchased outside the OTR and then move
into the OTR will be approximately 70
leaner for in-use VOC and
NOXemissions than the incoming vehicles (i.e., Tier I vehicles)
under the OTC LEV program. Second, the LEV-equivalent program would
provide significant environmental and public health benefits for the
rest of the country. Third, by requiring vehicles to meet the same
tailpipe standard in both California and the rest of the country, and
by harmonizing the other California and federal emission standards, the
program could streamline the process for certifying a vehicle for sale,
reduce auto manufacturers' testing and design costs, and provide other
efficiencies in the marketing of automobiles. Fourth, the parties could
use their resources to make the program succeed rather than continuing
the resource-intensive battle that has been waged over the past few
years between the states and the auto industry over the OTC LEV
program.
EPA urges the parties to continue their efforts to reach an agreedupon
program. The effective date of today's SIP call is February 15,
1995. By giving states a full year to submit their SIP revisions after
the effective date, this action allows the parties, particularly the
states, to focus on the voluntary agreement for the next 45 days
without simultaneously starting whatever legislative and regulatory
action is necessary to adopt OTC LEV in case a LEV-equivalent program
does not materialize. When states do begin legislative efforts, EPA
urges them to structure their authority so that an approved alternative
program can be adopted and implemented nationwide.
The alternative program under discussion contemplates using federal
rulemaking to establish the program. In light of the significant
progress that has already been made in developing an
[[Page 4714]]
alternative program, EPA believes it is appropriate to initiate an
expedited rulemaking process on the conventional car portion of a LEVequivalent
program, as described below. Although EPA cannot act
unilaterally to impose a LEV-equivalent program, EPA believes that, in
light of the parties' continuing efforts to reach agreement, it is time
to start to develop the regulatory structure that the parties have
discussed to implement an agreement. EPA intends to propose and take
comment on the voluntary new motor vehicle emission program described
below. EPA also intends to propose that the entire alternative program
is environmentally superior to OTC LEV because the alternative is at
least environmentally equivalent to OTC LEV in the OTR and it has
additional environmental benefits for the rest of the nation.Before
issuing such a proposal, EPA will seek the advice and recommendations
of the Clean Air Act Advisory Committee and Subcommittee that have been
addressing these issues. Although many of these issues, particularly
those that would be raised by the conventional car portion of the
program, have already been discussed in numerous Federal Register
notices and public meetings, EPA believes it is important to allow
people and states who have not participated in this process to date an
opportunity to be heard on the specific provisions of a potential new,
nationwide motor vehicle emission program.
The LEV-equivalent program under discussion has two major
components--a cleaner car to be sold nationwide and advanced motor
vehicle pollution control technology. In the following subsections, EPA
describes the nationwide cleaner car, the advanced technology program
currently under discussion, the possible methods for enforcing a LEVequivalent
program, the criteria for finding that such a program would
be an acceptable alternative for OTC LEV, and how an acceptable LEVequivalent
program would affect a state's obligations under today's
action.
Cleaner Conventional Cars and Light-Duty Trucks
The first component of a LEV-equivalent program would be
requirements for cleaner conventional cars and light-duty trucks that
ultimately would result in nationwide sales of cleaner new motor
vehicles. Starting with the 2001 model year, all new cars and lightduty
trucks sold outside California would meet the California Low
Emission Vehicle (LEV) standard. These vehicles would have up to 66
lower in-use VOC and 7312wer in-use NOXtailpipe emissions than
vehicles meeting the federal Tier I Standards. Prior to the nationwide
introduction of this vehicle, auto manufacturers would phase in cleaner
cars and light-duty trucks in the OTR according to a schedule that
would accomplish emission reductions in the OTR equivalent to the
following schedule:
40TLEVS<SUP>4 for model years 1997-2000
\4\ TLEV stands for transitional low emissions vehicle, which is
cleaner than cars required by federal law.
30 2.121996E-313Vs for model year 1999
60 2.121996E-313Vs for model year 2000
100 2.121996E-313Vs for model years 2001 and later
EPA cannot promulgate regulations requiring manufacturers to meet these
standards prior to model year 2004 (see section 202(b)(1)(C) of the
Act). Nonetheless, EPA can establish a voluntary program that would not
apply to manufacturers until they opted into the program; then, once an
auto manufacturer opted in, the voluntary standards would be
implemented in a way that would be indistinguishable from mandatory
standards.
In establishing such a program, several issues need to be addressed
other than the tailpipe standards and phase-in schedule. EPA will seek
comment on how to establish a banking and trading program, what
exemptions should apply to small volume manufacturers, the extent to
which federal standards (other than tailpipe standards) can be
harmonized with California standards to reduce testing and design
costs, how to incorporate California's on-board diagnostics system
requirements, what process and timing are appropriate for allowing auto
manufacturers to opt in, and other issues that would arise under the
voluntary program.
2. Advanced Technology Vehicles
In the second component, auto manufacturers, utilities, and state
and federal governments would commit to work together to further the
development of advanced technology to control motor vehicle emissions.
Representatives of the states and auto companies have been meeting
independently and as a working group of a Subcommittee of the Clean Air
Act Advisory Committee to develop an advanced technology component of a
LEV-equivalent program. At this point in the discussions, they do not
anticipate that EPA would take regulatory action to adopt the advanced
technology component. Attachment A to this preamble is a current draft
discussion paper of their ideas on the Advanced Technology Vehicle
(ATV) component of a LEV-equivalent program. The parties have not yet
reached agreement on this component.
3. Enforcement of a LEV-Equivalent Program
Given constraints imposed by Congress in the Clean Air Act, a LEVequivalent
program cannot be instituted without the consent of the auto
manufacturers and the OTC states. The auto manufacturers must agree to
any tailpipe regulations other than the current federal program or the
California program. EPA is precluded by section 202(b)(1)(C) from
modifying the mandatory tailpipe standards prior to model year 2004.
States are precluded by sections 177 and 209 from adopting any program
other than the California program. Thus, the only route left to a LEVequivalent
program is one in which the auto manufacturers voluntarily
agree to additional regulation. The auto manufacturers have said that,
in principle, they could agree to a voluntary program if it avoided the
need to comply with OTC LEV in the OTC states. The OTC states,
therefore, would have to agree not to require compliance with OTC LEV
if the auto manufacturers were complying with a voluntary federal
program.
EPA has suggested that a combination of EPA regulations, consent
decree(s), and a memorandum of understanding could be used in
combination to create an enforceable LEV-equivalent program. EPA
anticipates that a memorandum of understanding may be necessary or
appropriate to outline the general structure and some specifics of the
LEV-equivalent program. EPA intends to propose that the cleaner
conventional car component would be embodied in EPA regulations that
would be issued after an expedited notice-and-comment rulemaking was
completed. EPA suggests that the regulations be supplemented by a
consent decree addressing obligations not in the regulations and
providing additional assurance that the regulatory obligations will
remain in effect. The states and automakers have discussed embodying
the advanced technology vehicle component in a memorandum of
understanding and a consent decree.
EPA intends to propose that it has statutory authority to
promulgate the voluntary standards under sections 202(a) and 301(a) of
the Clean Air Act. Section 202(a)(1) directs the Administrator to
prescribe standards for control of air pollutant emissions from motor
vehicles. EPA's prescription of
[[Page 4715]]
voluntary, as well as mandatory standards, is consistent with this
authority under section 202(a)(1). Section 202(b)(1)(C) prohibits the
Administrator from changing the emission standards (Tier I standards)
established in section 202(g), (h) and (i) prior to model year 2004.
However, this prohibition against EPA setting new mandatory standards
does not negate EPA's authority to establish emission standards with
which manufacturers may voluntarily comply. In addition, section 301(a)
authorizes the Administrator to promulgate regulations necessary to
carry out her functions under the Act. The voluntary standards
discussed above would fall within the Administrator's duty to implement
the broad air pollution reduction purposes of the Act, and specifically
to control air pollution from motor vehicles.4. Criteria for an
Acceptable LEV-Equivalent Program
EPA is not determining in today's action what criteria an
alternative program would need to meet for EPA to find that the program
is an acceptable alternative to the OTC LEV program. EPA would
determine the necessary criteria for equivalence as a part of any
rulemaking that established or reviewed such an alternative program.
However, EPA believes that one criterion that a LEV-equivalent program
must meet is that it must have VOC and NOXemissions reductions in
the OTR equivalent to those that would be achieved by the OTC LEV
program.<SUP>5 Based on EPA's current analysis, a version of which was
in a notice of data availability published on October 24, 1994 (59 FR
53395), EPA intends to propose that the alternative program described
above meets this equivalence requirement.
\5\The vehicle types subject to a LEV-equivalent program would
need to be the same vehicle types (or a subset thereof) that would
be subject to OTC LEV. Thus, emission reductions from heavy-duty
trucks could not be used to assess the equivalence of a LEVequivalent
program.
In addition, an acceptable alternative program must be enforceable.
A finding of enforceability would have to include a showing that the
program, once in effect, would remain in effect. Therefore, today's
action regarding the LEV-equivalent program is based on the assumption
that automobile manufacturers would not be allowed to use ``offramps''
<SUP>6 to exit from the program. The OTC has also stated that
the advancement of motor vehicle emission control technology is one of
the criteria an alternative program must meet.
\6\ An ``off-ramp'' is a provision allowing manufacturers to opt
out of an alternative program if a certain trigger-event occurs, for
example, if a state implemented a LEV program.
5. State Obligations if an Acceptable LEV-Equivalent Program is in
Effect
Today's action recognizes that, if an acceptable LEV-equivalent
program were in effect, then states would not be required to adopt OTC
LEV regulations and submit them as a SIP revision. Under today's rule,
if EPA were to determine later through rulemaking that a LEV-equivalent
program was acceptable and were to find that it was in effect, states
would not be obligated to adopt the OTC LEV program as long as the LEVequivalent
program stayed in effect. For example, if all the automakers
opted into a LEV-equivalent program that did not allow them to opt out,
states would not have to undertake the legislative and regulatory
process necessary for adoption of the OTC LEV program. If something
happened to disrupt or void the LEV-equivalent program, states would
then be required to adopt OTC LEV because today's action would still
make states responsible for ensuring that there were provisions for
emission reductions from new motor vehicles.
In the SNPRM, EPA had raised the issue of whether states would need
to adopt OTC LEV regulations if a LEV-equivalent program were in
effect. Under one approach, states would adopt an OTC LEV program that
allowed auto manufacturers the option of complying with a LEVequivalent
program instead of the OTC LEV standards; thus, OTC LEV
would be in place as a ``back stop'' in case something happened to the
LEV-equivalent program. For example, if a LEV-equivalent program
allowed manufacturers to opt out if a state adopted the California LEV
program, then the other states could not be assured that they would
achieve the necessary reductions from a LEV-equivalent program.
Therefore, states would need to have OTC LEV in place so that it would
replace the LEV-equivalent program if that program were no longer in
effect. EPA believes that, under certain circumstances, the ``back
stop'' approach wastes state resources by requiring a rulemaking
process for a program that should never be used. Thus, under today's
rule, states could be relieved of the obligation to adopt OTC LEV if
EPA determined in a later rulemaking that a LEV-equivalent program was
an acceptable alternative to OTC LEV and found that the program was in
effect.
C. Procedural Background
The OTC submitted a recommendation to EPA on February 10, 1994,
that EPA require all states in the OTR to adopt an OTC LEV program. EPA
extensively reviewed the background for this rulemaking in its
September 22, 1994, supplemental notice of proposed rulemaking (SNPRM).
See 59 FR at 48664-48667. This review included a description of the
statutory scheme in which the rulemaking arises, a description of the
ozone transport region provisions of the Clean Air Act, background
regarding the OTC's development of the OTC LEV program, and a summary
of EPA's actions in response to the OTC's recommendation. This
background is not repeated in its entirety here, and the reader is
referred to the SNPRM for further detail.
EPA has moved quickly to resolve the very complicated issues that
the OTC's recommendation raises and has provided maximum opportunity
for public participation. After receiving the OTC's recommendation on
February 10, 1994, the Agency quickly published a notice announcing
receipt of the OTC's recommendation, identifying its major elements,
and briefly presenting EPA's framework for a process to respond and an
approach for analyzing the issues. See 59 FR at 12914 (March 18, 1994).
As announced on April 8, 1994, EPA held two days of public hearings on
May 2-3, 1994, in Hartford, Connecticut. See 59 FR at 16811.
Before the public hearing and pursuant to section 307(d) of the
Clean Air Act, EPA published a notice of proposed rulemaking (NPRM)
that contained extensive information about EPA's approach to addressing
the recommendation. See 59 FR 21720 (April 26, 1994). This notice
detailed EPA's analytic framework for a decision and identified the
central issues EPA was considering. EPA explained in the NPRM that the
rulemaking procedures of section 307(d) would apply to any approval or
partial approval of the recommendation, since those procedures are an
excellent vehicle for ensuring an open, public process. See 59 FR at
21724. In the NPRM, EPA proposed in the alternative to approve,
disapprove, or partially approve and partially disapprove the OTC
recommendation.
After publication of EPA's proposal and the two days of initial
public hearings, EPA held an additional series of three public
``roundtable'' meetings in Pennsylvania, New Hampshire, and New York.
EPA held these meetings to provide specific analysis of the issues
through interactive discussion among the various interested parties and
members of the public. See 59 FR 28520 (June 2, 1994). At the end of
these
[[Page 4716]]
meetings, EPA extended the public comme organized public discussion of
issues raised and resolved in this rulemaking. In addition to sharing
their views in many public hearings and meetings, interested parties
provided voluminous written comments on EPA's April 26 and September 22
proposals. These comments and other documents relevant to the
development of this final rule are contained in the public docket for
this rulemaking. The Agency has fully considered all of this
information in developing today's final rule. EPA's responses to
significant comments are contained in detailed response-to- comments
documents that are contained in the public docket. Interested parties
should consult those documents for EPA's response to the comments it
received.EPA has structured this final rule to follow the analytic
framework that the Agency used in the NPRM and SNPRM. As explained
above, rather than repeating the entire discussion in the SNPRM, EPA is
adopting much of the rationale provided in the SNPRM as the statement
of basis and purpose supporting today's final action. For this reason,
this final rule notice summarizes and references much of the discussion
in the SNPRM, and elaborates where needed to clarify or modify EPA's
proposed rationale in light of the comments EPA received or to address
issues left unresolved in the SNPRM. Although this notice and the SNPRM
contain EPA's responses to some comments, the response-to-comments
documents provide detailed responses to all other relevant, significant
comments received. In addition to relying on this notice and the
response-to-comments documents as the statement of basis and purpose
for today's action, EPA is also relying for its statement of basis and
purpose on the detailed explanations in the SNPRM, except where
indicated otherwise in this final rule notice or the response-tocomments
documents, or where statements in the SNPRM are inconsistent
with statements in the final rule notice or response-to-comments
documents.
II. Description of Action
EPA today is making the factual finding that emissions reductions
from new motor vehicles equivalent to the reductions that would be
achieved by the OTC LEV program are needed throughout the OTR to bring
certain OTR nonattainment areas into attainment (including maintenance)
by their applicable attainment dates. Based on that finding, EPA today
is issuing to each of the states in the OTR a finding that its SIP is
substantially inadequate to meet certain requirements insofar as the
SIP would not currently achieve those emission reductions. There are
two possible ways to achieve these emission reductions and thereby cure
this SIP inadequacy--state adoption of the OTC LEV program or
establishment of an acceptable LEV-equivalent federal motor vehicle
program. By virtue of today's findings of SIP inadequacy, unless an
acceptable LEV-equivalent program is in effect, EPA is today finding
the OTC LEV program necessary to achieve timely attainment (including
maintenance) in certain nonattainment areas and therefore is requiring
each OTC state to cure the inadequacy within one year by adoption of
the OTC LEV program and submission of it as a SIP revision. However, if
EPA issues a rule determining that a LEV-equivalent new motor vehicle
program is acceptable and issues a finding that all the automakers have
opted into that program nationwide, then the states would be relieved
of their obligation to adopt OTC LEV.
As an alternative to achieving emission reductions from new motor
vehicles, states could submit adopted measures sufficient to fill the
gap in emission reductions that EPA identifies in today's rule as
required to prevent adverse transport impacts on downwind attainment.
By filling the gap in emission reductions between the measures EPA has
identified in this notice as potentially broadly practicable measures
and the amount necessary to prevent adverse transport impacts downwind,
the state would demonstrate that it was unnecessary to adopt new motor
vehicle controls for transport reasons.
EPA is approving the OTC's LEV recommendation based on the
determination under sections 184(c) and 110(a)(2)(D) of the Act that
the recommended LEV program is necessary throughout the OTR to bring
certain OTR nonattainment areas into attainment by the applicable
attainment dates, unless an acceptable LEV-equivalent program is in
effect, and that the recommended LEV program is otherwise consistent
with the Act. Approval of the OTC recommendation requires EPA to issue
the finding of SIP inadequacy described above and to require states to
respond within one year with SIP revisions requiring the OTC LEV
program, unless an acceptable LEV-equivalent program is in effect.
Independent of section 184, but based on the same factual finding of
necessity, EPA also is requiring the actions described above under its
SIP call authority in section 110(k)(5)\7\ on the basis that the SIP
for each state in the OTR is substantially inadequate to meet the
requirements relating to pollution transport in section 110(a)(2)(D)
and to mitigate adequately the interstate pollutant transport described
in section 184.\8\
\7\Section 110(k)(5) authorizes the Administrator to require the
state to revise the SIP as necessary to correct the deficiency
whenever she finds that a SIP for an area is substantially
inadequate to mitigate adequately the interstate pollutant transport
described in sections 176A or 184 or to otherwise comply with any
requirement of the Act.
\8\Section 110(a)(2)(D) requires that SIPs contain adequate
provisions to prevent emissions within the state that contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state.
EPA's SIP call does not require states in the OTR to adopt
California's Zero Emission Vehicle (ZEV) production mandate, but leaves
this choice to each state's discretion. EPA has determined that section
177 of the Act allows states to adopt the California LEV program
without adopting the ZEV mandate.
Finally, EPA is issuing regulations defining the term ``model
year'' for purposes of section 177 and part A of title II of the Act,
as that term applies to on-highway motor vehicles. The regulations
provide that model year will apply on an engine family-by-engine family
basis. This regulatory action codifies long-standing EPA guidance on
this definition and should clarify the applicability of the two-year
lead-time requirement in section 177.
III. Statutory Framework for the SIP Call
As mentioned above, authority for today's SIP call is premised both
on EPA's approval of the OTC recommendation under section 184(c) and on
EPA's independent authority under sections 110(a)(2)(D) and 110(k)(5),
which would support such an action even in the absence of an OTC
recommendation.<SUP>9 For reasons described in the response-to-comments
[[Page 4717]]
documents, EPA disagrees with comments claiming that EPA lacks such
authority because the section 184 process is invalid under the United
States Constitution, because section 110 does not authorize EPA to
require states to adopt specific measures, or because an EPA SIP call
requiring state regulation of emissions from new motor vehicles
violates sections 177, 202, and 209 of the Act.\9\ In addition,
EPA believes it has authority to approve the OTC's recommendations
under section 176A, the general transport commission provision of
the CAA. For the reasons described in the response-to-comments
documents accompanying this final action, which include the fact
that the OTC refers to section 176A in its own by-laws, EPA believes
that the Northeast OTC is a section 176A transport commission as
well as a section 184 transport commission. As a consequence, EPA
believes that, notwithstanding the fact that the OTC's
recommendations themselves do not explicitly refer to section 176A,
it may treat the OTC's recommendations as section 176A requests with
recommendations, as well as section 184 recommendations, and act on
them accordingly. References in this notice to EPA's analysis of and
conclusions on the OTC petition under section 184 are intended to
reflect also EPA's analysis of and conclusions on the petition
treated as a request with recommendations under section 176A.
A. Section 184
EPA described the provisions of section 184 in detail in both the
NPRM and SNPRM. See 59 FR at 21722-21724 and 59 FR at 48668. Section
184(c) explicitly provides that the Administrator is to review the
OTC's recommendations to determine whether the control measures in the
recommendations are necessary and otherwise consistent with the Act,
and is to approve, disapprove, or partially disapprove and partially
approve such recommendations. Upon approval, the Administrator is to
issue to affected states a finding under section 110(k)(5) that the SIP
for such state is inadequate to meet the requirements of section
110(a)(2)(D), and that each such state is required to revise its SIP to
include the approved measures within one year after the finding is
issued.
In the SNPRM, EPA addressed comments from both the auto
manufacturers and the Natural Resources Defense Council (NRDC)
regarding the validity of the section 184 scheme under the United
States Constitution. Various other commenters also submitted comments
on the constitutional questions. EPA has fully considered the comments
and believes that section 184 is consistent with the Constitution, as
discussed in the response-to-comments documents.
B. Section 110
EPA is interpreting section 110 of the Act to provide that it
grants the Agency independent authority to issue today's SIP call,
apart from any authority provided by section 184, for the reasons given
below and in the SNPRM, 59 FR at 48667-48670 (col. 1), and further
explained in detail in the response-to-comments document accompanying
this final action. Section 110(a)(2)(D) requires that SIPs include
adequate provisions prohibiting sources in the state from contributing
significantly to nonattainment or interfering with maintenance in any
other state. If EPA finds that a SIP is ``substantially inadequate to *
* mitigate adequately interstate pollutant transport * * * or to
otherwise comply with any requirement of this Act,'' including section
110(a)(2)(D), section 110(k)(5) requires EPA to issue a SIP call
requiring the state to adopt the SIP revisions necessary to correct the
inadequacy.
As proposed in the SNPRM, EPA concludes that sections 110(a)(2)(D)
and (k)(5) authorize it to find at any time that a SIP is inadequate
due to pollution transport. EPA believes that emissions reductions from
new motor vehicles equivalent to those achieved by the OTC LEV program
are necessary throughout the OTR to bring all of the OTR states into
attainment (including maintenance) of the ozone NAAQS by their
respective attainment dates; that, unless an acceptable LEV-equivalent
program is in effect, OTC LEV is necessary because it is the only
currently available method of achieving these reductions; that the
states' SIPs are inadequate to the extent they do not provide for the
emissions reductions from new motor vehicles equivalent to those
achieved by the OTC LEV program; and that, unless EPA issues a finding
that all automakers have opted into a LEV-equivalent program that EPA
has determined by rule to be acceptable, the states must adopt the OTC
LEV program to correct the deficiency within one year of the effective
date of the finding of inadequacy, and that waiting to make this
finding may compromise the states' ability to achieve the reductions by
the time they are needed for timely attainment and maintenance
thereafter. As discussed in the SNPRM, EPA concludes that, as it has
done in the past, it may require submission of specific SIP measures
pursuant to section 110(k)(5). Finally, as discussed in the SNPRM, EPA
believes that it should find the states' SIPs inadequate only insofar
as they do not contain the emissions reductions from new motor vehicles
equivalent to those achieved by OTC LEV program because those
reductions depend on vehicle fleet turnover, which will take an
unusually long time to generate the needed emissions reductions.
EPA is basing today's final action in part on this independent
authority under section 110, and it believes certain aspects of its
explanation in the SNPRM merit elaboration. First, where EPA has found
a measure to be necessary to prevent states from contributing
significantly to other states' nonattainment, EPA concludes that
section 110(k)(5) authorizes the Agency to find SIPs inadequate to the
extent that they do not contain that measure. In this case, however,
both EPA's SIP call under section 110(k)(5) and its necessity finding
under section 184 are qualified by the assumptions EPA made in
conducting the necessity analysis. Because EPA assumed for purposes of
its analysis that certain measures were not potentially practicable for
all areas in the transport region and thus excluded such measures from
consideration, the states' obligation under the SIP call could be met
(1) by obtaining the necessary reductions from new motor vehicles
through adoption of OTC LEV or through an alternative new motor vehicle
program that achieved equivalent emissions reductions, or (2) by
adopting alternative measures that will provide sufficient emission
reductions to fill the gap in emission reductions needed to prevent
significant transport impacts on downwind attainment, which would
demonstrate that OTC LEV is not in fact necessary in that state.
Second, EPA continues to support the conclusions described in the
SNPRM regarding the scope of this SIP call, 59 FR at 48669. The OTC LEV
program is distinctive and warrants a finding under section 110(k)(5)
that these SIPs are deficient insofar as they do not provide for
emissions reductions from new motor vehicles equivalent to those
achieved by that program. Model year 1999 and later vehicles will
remain on the road until well after the attainment deadlines throughout
the northeast. Failure to require that they meet LEV emissions
standards will constitute an irrevocable loss in emissions reductions
until those vehicles are replaced many years later. Therefore, it is
important that the tighter LEV standards apply to these new vehicles if
the reduced emissions will be necessary to achieve and maintain the
NAAQS later.
A general finding of SIP inadequacy is not yet warranted. EPA
recognizes the close connection between states' planning to address
transport and their planning for reductions to ensure timely
attainment. The November 15, 1994, deadline for states to submit
modeled attainment demonstrations has now passed. However, of the
states in the OTR that have submitted SIPs, none purports to provide
for the emissions reductions needed to bring downwind states into
attainment and continue maintenance of the ozone standard.\10\
Especially in such circumstances, EPA continues to believe that it has
authority under section 110(k)(5) to find that the states' current SIPs
are substantially inadequate for lack of a pollution
[[Page 4718]]
control measure that must be adopted and implemented in the near term
for the state to achieve fully the emissions reductions necessary to
mitigate transport adequately. However, while the states' failure
merits even closer EPA oversight of these states' progress in SIP
development, EPA believes that a general finding of SIP inadequacy is
not yet warranted. While, for the reasons described above, EPA is
drawing an exception with respect to a finding of SIP inadequacy based
on the absence of a LEV program from these SIP, EPA still believes it
should generally allow states the first opportunity to address
transport and their attainment demonstrations together in their
forthcoming SIP revisions before the Agency exercises its SIP-call
authority more broadly to address non-LEV deficiencies.\10\In
the SNPRM, EPA incorrectly stated that the Act creates no deadline
for submission of SIPs demonstrating compliance with section
110(a)(2)(D), and inadvertently omitted language it had drafted to
explain that section 172(b), read in conjunction with section
172(c)(7), does establish a deadline for such SIPs for nonattainment
areas. That date too has now passed.
Even though the attainment demonstrations are now overdue, states
are in the process of incorporating many additional control measures
into their SIPs for purposes of meeting their obligations and are
actively working to adopt regional strategies to address transport. In
fact, as discussed in greater detail below, after publication of the
SNPRM the OTC states signed a Memorandum of Understanding to adopt
stringent controls on NOXemissions from stationary sources that
will apply region-wide throughout the OTR. EPA will continue to track
the states' progress in adopting control measures to achieve the
necessary reductions in time for downwind states to meet their
attainment deadlines and to maintain the NAAQS thereafter, and if those
efforts prove insufficient, EPA may consider making a more
comprehensive finding of SIP inadequacy if other measures are lacking.
C. Consistency of EPA Action With Sections 177, 202 and 209 of the Act
EPA reaffirms its initial determination and rationale that its
decision is consistent with sections 177, 202 and 209. See 59 FR 48670-
48671. As discussed in the SNPRM, section 202(b)(1)(C) only precludes
the Agency from promulgating national standards under section 202 that
modify certain specified standards prior to model year 2004. This is
not a general prohibition against all EPA action relating to the
control of emissions from motor vehicles. In acting under section 184
and section 110, however, EPA is not imposing mandatory federal
standards. Rather, EPA is requiring the states to exercise their own
independent authority under section 177 to promulgate state regulations
relating to the control of emissions from motor vehicles. That state
authority is not limited by section 202(b)(1)(C). Thus, this action
relies not on EPA's authority under section 202 (which would be limited
by section 202(b)(1)(C)), but on EPA's authority under sections 110 and
184, to mandate state action that would otherwise be discretionary.
Some commenters note that EPA is requiring states to act under
section 177 in a manner that would otherwise be up to the discretion of
the state.\11\ However, as discussed above, sections 110 and 184 give
the Administrator authority to impose ``additional control measures''
(i.e., measures over and above those required under other provisions of
the Act) on states. Moreover, section 110(a)(2)(D) requires SIPs to
contain provisions prohibiting ``any source or other type of emissions
activity'' from emitting air pollution that interferes with attainment
or maintenance in other states. This language is sufficiently broad to
include motor vehicles. There is no indication that section 184 is
limited in effect to stationary sources or that state standards for
automobiles were excluded from the ``additional control measures'' that
EPA could require under section 184.
\11\This is likely to be true for any actions ordered under
section 184 or 110. EPA would not need the authority of section 110
and 184 to require states to promulgate standards already required
by law.
IV. Basis for Requiring OTC LEV or a LEV-Equivalent Program
EPA's explanation of the proposed basis for approval of the OTC LEV
recommendation comprises the primary subject of the SNPRM. See 59 FR at
48671-48694. This detailed explanation is not repeated here. Rather,
the following discussion references many of the portions of the SNPRM
on which EPA is relying for today's action. In addition to these
references and a summary, this discussion only addresses changes to and
elaborations upon EPA's explanation of its basis for action. In
addition to the rationale set forth in this notice and the response-tocomments
documents, EPA is also relying on the SNPRM as the basis for
today's SIP call, except as otherwise explained in the response-tocomments
documents or in this preamble, or where the SNPRM is
inconsistent with those documents. EPA bases its requirement for states
to adopt the OTC LEV program on its determinations that the emissions
reductions that the program achieves are necessary to bring certain
nonattainment areas into attainment (including maintenance) of the
ozone standard by the dates applicable under Subpart 2 of Part D of
Title I of the Clean Air Act; that, unless an acceptable LEV-equivalent
program is in effect, OTC LEV is necessary because there is no other
currently available method of achieving these reductions from the same
sources; and that requiring the OTC LEV program is consistent with
other requirements of the Act. The basis for each of these
determinations is described in detail in subsections A and B of this
section of the notice.
A. Necessity
EPA's conclusion that the emission reductions achieved by the OTC
LEV program are necessary to bring certain nonattainment areas in the
OTR into attainment (including maintenance) of the ozone standard by
their applicable dates is based on a series of statutory
interpretations and factual determinations. As set forth in detail
below, EPA is interpreting the ``necessary'' standard in section
184(c)--as well as the ``significant contribution'' and
``interference'' tests of section 110(a)(2)(D) read in conjunction with
section 184(c)(5)--as authorizing the Agency to find ``necessary'' any
potentially broadly practicable measure that, in light of the
availability of other potentially broadly practicable measures, is
needed to bring the downwind areas into timely attainment. EPA next
analyzes the full magnitude of emission reductions needed for serious
and severe nonattainment areas in the OTR to attain the standard, and
the degree to which various sections of the OTR upwind of those
respective nonattainment areas contribute to their nonattainment. From
that analysis EPA concludes that 50-75NOXreductions from every
portion of the OTR lying to the south, southwest, west and northwest of
each of the serious and severe OTR nonattainment areas, as well as 50-
75VOC reductions from the portion of the OTR lying in or near (and
upwind of) each of those nonattainment areas, are needed to bring each
of those respective nonattainment areas into attainment by their
respective attainment dates.
EPA then analyzes the potentially broadly practicable pollution
control measures (other than emission standards for new motor vehicles)
to determine whether they would achieve the necessary emission
reductions; EPA concludes that they would not and that a significant
shortfall would remain. Based on that conclusion, EPA finds that new
motor vehicle tailpipe emission reductions are necessary to help fill
that shortfall, and that, unless an acceptable LEV-equivalent program
is in effect, the OTC LEV program is the
[[Page 4719]]
only program currently available to achieve those reductions, and hence
that the OTC LEV program is necessary. EPA then concludes that the
trading and migration of vehicles within the OTR provide a basis for
requiring that the OTC LEV program be adopted even in the few portions
of the OTR not upwind of a serious or severe nonattainment area in
order to ensure that the necessary emission reductions from the various
upwind portions of the OTR contributing significantly to those downwind
nonattainment problems are actually achieved. Based on those findings,
EPA then concludes that, unless an acceptable LEV-equivalent program is
in effect, the OTC LEV program is necessary in every portion of the OTR
to bring the serious and severe ozone nonattainment areas of the OTR
into attainment by their respective attainment dates.Finally, EPA
concludes that it may interpret section l84's reference to attainment
to incorporate maintenance of the ozone standard. EPA relies on that
interpretation, on EPA's treatment of the OTR petition as resting also
on the provisions in section 176A, and on EPA's independent authority
under sections 110(a)(2)(D) and (k)(5) to address the interference of
upwind states with maintenance of the standard by downwind states.
Based on these, EPA concludes that it may and should make the same
necessity and SIP inadequacy findings described above and approve the
OTC recommendation, not only to assure timely attainment in the OTR's
serious and severe nonattainment areas, but also because such
reductions are necessary for those and certain other areas to maintain
the ozone standard.
Legal Interpretation of Necessity
EPA discussed its interpretation of the ``necessary'' standard
under sections 184(c) and 110(k)(5) in the SNPRM. See 59 FR at 48671-
EPA then proposed, under section 110(a)(2)(D), that contributing
emissions are ``significant,'' at least where EPA finds that
controlling the emissions is necessary to bring any downwind area into
attainment. EPA also proposed that contributing emissions ``interfere''
with downwind maintenance, at least where controlling the emissions is
necessary for downwind areas to maintain the NAAQS. In particular, the
Agency believes that the ``necessary'' standard requires the Agency to
evaluate the emissions reductions needed and then determine whether
potentially reasonable and practicable alternative measures could be
adopted instead of the OTC LEV program to achieve the needed
reductions. Id. There are two different types of alternative measures
that could affect a finding that OTC LEV is necessary. First, an
alternative that achieves the same or greater emissions reductions from
the same emissions sources (here, new motor vehicles) may render the
OTC LEV program unnecessary. There are limited opportunities to develop
an alternative to the OTC LEV program that would achieve the same or
greater reductions from new motor vehicles. This is because section 202
bars EPA modification of the Tier I standards prior to model year 2004,
and the states cannot, under sections 177 and 209, adopt standards
other than the California standards. As discussed in the introduction
to this notice and below, EPA has worked to explore the possibility of
an alternative program to achieve equivalent reductions from new motor
vehicles that would be consistent with these provisions. Such a program
is not currently available to the OTC states. However, if EPA were to
determine through rulemaking that a LEV-equivalent program is
acceptable and to find that all the automakers had opted into the
program, then states would not be required to adopt OTC LEV as long as
the LEV-equivalent program remained in effect.
Second, certain alternative measures that are sufficient in the
aggregate to achieve the necessary reductions without further
reductions from new motor vehicles could likewise render the OTC LEV
program unnecessary.
EPA's interpretation is consistent with its approach to
interpreting the ``necessary'' standard under section 211(c)(4)(C) of
the Act. See 59 FR at 48672. The interpretation certified by Congress
under that section provides that measures are necessary if no other
measures that would bring about timely attainment exist, or ``if other
measures exist and are technically possible to implement, but are
unreasonable or impracticable.'' Similarly, EPA is concluding here that
alternatives are available if they are at least potentially reasonable
and practicable for application across the OTR, as well as sufficient
to achieve the necessary reductions. Also, EPA's necessity
determination and its SIP call are both subject to any state's ability
to demonstrate, through adoption of alternative measures that EPA
cannot currently find potentially practicable for all OTR areas, that
the OTC LEV program is not in fact necessary to bring the downwind
states into attainment (including maintenance), and thereby to prevent
a significant contribution from that state to nonattainment in another
and to prevent interference with maintenance in a downwind state.
EPA must make any determination of the need for additional control
measures in the context of factual uncertainty regarding issues such as
whether measures are potentially broadly practicable, the amount of
reductions needed, and the amount of reductions that particular
measures will achieve in fact. EPA is making its determination based on
the best information currently available. As explained in the SNPRM and
elaborated upon in the response-to-comments documents, EPA believes
that it should apply a general policy of resolving these uncertainties
in favor of the public and the environment.
EPA noted in the SNPRM that the states' attainment plans were due
two months later, and that the work the states had accomplished in
assembling their attainment plans did not indicate that the OTC LEV
program would be unnecessary to address the transport problem. See 59
FR at 48673. EPA has now received SIP submissions under section 182
(b)-(d), concerning attainment and rate-of-progress, that were due by
November 15, 1994 from only a few of the states in the OTC. Of those
received, none purports to achieve NOXor VOC reductions
sufficient to account for contributions to nonattainment problems
further downwind. This further confirms that EPA should act now based
on the best available information.
EPA discussed in its NPRM and SNPRM whether section 184, together
with the legislative history, support giving ``deference'' to the OTC's
recommendation regarding the necessity of the OTC LEV program, and EPA
explicitly requested comment on that issue. See 59 FR at 21726-21727
and 59 FR at 48672. EPA has now considered the issue of deference to
the OTC in light of the comments received and does not believe that the
OTC, per se, deserves any special deference. EPA believes, however,
that when states submit a request to EPA that EPA take specific action
to implement section 110(a)(2)(D), whether under section 110(k)(5)
alone or under sections 176A or 184, EPA should pay close attention to
that request and consider it and any recommendations it makes
carefully. EPA believes that this is appropriate in light of the
fundamental role that states have historically played in implementing
title I of the CAA and the expertise that states bring to bear on air
pollution problems. In reviewing any such request from states, EPA
remains obligated to consider independently all of the factual
information available in determining whether any program
[[Page 4720]]
recommended by the states is necessary. In any event, in this instance,
EPA's independent review of all the relevant factual information fully
supports the conclusion that the OTC LEV program is necessary, and EPA
has not accorded the OTC's recommendation deference in approving it.2.
Emission Reductions from OTC LEV or a LEV-Equivalent Program are Needed
(a) Magnitude of Reductions Needed for Attainment in 2005. The
SNPRM contains EPA's detailed analysis of available modeling
information regarding the magnitude of reductions needed for attainment
in the serious and severe nonattainment areas in the OTR. See 59 FR at
48673-48675. EPA's conclusion is that NOXemission reductions of
50to 75 0.000000rom a 1990 baseline emissions inventory are needed
throughout the OTR to reach attainment of the ozone NAAQS in those
serious and severe areas. EPA further concludes that VOC emissions
reductions of 50to 75 0.000000rom a 1990 baseline emissions inventory are
needed in and near (and upwind of) the Northeast urban corridor for
attainment in the serious and severe areas. Some parts of the OTR may
need reductions closer to the upper end of the range and other parts
closer to the lower end, based on the emissions level in the particular
area and the geographic location of the area.
As explained in the SNPRM, 59 FR at 48674, the 50to 75
reductions are needed from a 1990 baseline emissions inventory,
assuming that all growth in emissions since 1990 must be neutralized in
addition to achieving these percentage reductions. The estimated target
level of emissions implied by this percentage reduction will not vary
over time, though the growth that must be neutralized will steadily
increase. EPA derived this conclusion from extensive modeling studies
that are described in the SNPRM but are not repeated here. See 59 FR at
48675.
EPA reviewed in detail the atmospheric modeling tools used to
analyze the need for and effectiveness of various strategies, and the
studies that had been completed at the time of the SNPRM. See 59 FR at
These tools include the Regional Oxidant Model (ROM) and the
Urban Airshed Model (UAM), which differ principally in the size of the
modeling domain and the resolution of information about subunits in the
photochemical grid. EPA also explained that the relationship between
ROM and UAM modeling involves an iterative process. ROM applications
provide boundary conditions (i.e., the conditions of the ambient air at
the upwind boundary of each of the UAM domains) for UAM analysis, and
UAM analyses provide information about strategies that can be input for
further ROM modeling to yield more refined boundary conditions for
further UAM analysis.
The states' obligation to submit attainment demonstrations (due
November 15, 1994) involves the use of UAM modeling to demonstrate that
the adopted control measures will achieve attainment for their own
nonattainment areas. As indicated above, only a few of the OTR states
have submitted any of this information, including UAM modeling, and
none has submitted the complete UAM modeling. As indicated in the
SNPRM, EPA does not expect the UAM modeling to be completed in the near
future. EPA does not believe it is appropriate to wait for the UAM
attainment demonstrations (which have since become overdue) to reach a
conclusion here. This is because ROM is the more important modeling
tool for assessing transport and is sufficient to support certain key
conclusions with respect to transport. Also, the OTC LEV and the LEVequivalent
programs depend on time for vehicle turnover to achieve
reductions and delay could cause necessary reductions to be irrevocably
lost. Current information justifies action now to avoid the very high
risk of losing necessary reductions while awaiting further technical
information from the states that is already overdue.
(b) Contribution Analysis
As described in more detail in the response-to-comments documents,
EPA continues to rely on the ROM studies described in the SNPRM--the
ROMNET and Matrix studies--to support its conclusions concerning
transport and the amount of emissions reductions needed across the
region for the serious and severe nonattainment areas in the Northeast
corridor to attain. In the SNPRM, EPA examined the degree to which
transport contributes to the ozone problem in each of those areas. See
59 FR at 48675-77. EPA acknowledged that it is enormously complicated
to determine which reductions are needed for any specific area to avoid
causing ozone exceedances downwind. The analysis depends on regional,
urban, and wind trajectory modeling information and monitoring data, as
well as information on controls assumed in the web of downwind areas
and other upwind areas. In the SNPRM, EPA noted that the OTC relied on
ROM studies and trajectory analyses to determine the extent to which
upwind areas contribute to exceedances downwind throughout the OTR. EPA
continues to believe that these studies support its conclusions.
In the SNPRM, EPA also reviewed studies in which EPA examined
surface winds and aloft winds data during the relevant times. As stated
in the SNPRM, this information indicates that transport results in a
large cumulative impact of emissions and ozone transported by surface
winds from the south and southwest of each of the nonattainment areas
along the Northeast urban corridor, and that transport also results
from ozone and emissions transported by winds aloft from far to the
west and northwest of each of the nonattainment areas along the
corridor. EPA continues to believe that these studies support its
conclusions.
More specifically, wind trajectory data support the conclusion that
the following areas contribute to nonattainment and maintenance
problems in the OTR, in the following manner (other areas may
contribute as well): The Washington, D.C. nonattainment area--
encompassing part of Virginia, the District of Columbia, and part of
Maryland--is to the south-southwest of the Baltimore, Maryland,
nonattainment area, and thus, according to wind trajectory data, ozone
and emissions from those areas travel with the surface winds to
contribute to the nonattainment problem in Baltimore. The Baltimore
area itself, as well as the rest of Maryland, is to the south,
southwest, or west of the Philadelphia, Pennsylvania nonattainment
area, which includes parts of Pennsylvania, Delaware and New Jersey;
thus ozone and emissions from Maryland contribute to that nonattainment
problem. Ozone and emissions from western Pennsylvania, and western and
northern Maryland, contribute to the Philadelphia problem as well.
Ozone and emissions from the Philadelphia area contribute to the New
York City area which lies to the northeast. Ozone and emissions from
western and northern Pennsylvania and northern New Jersey, and the
southern and western portions of upstate New York--which are to the
west and northwest of the New York City area--also contribute to the
nonattainment problem in that area, which comprises parts of New York,
northern New Jersey, and southern Connecticut. The New York City area
is to the southwest of Providence, Hartford, and Boston, and thus ozone
and emissions from the New York City area contribute to those areas'
problems. Ozone and emissions from upstate New York and northern
Pennsylvania, which lie to the west and
[[Page 4721]]
northwest, also contribute to the problems in Hartford, Providence and
Boston. Connecticut, Rhode Island, western Massachusetts, Vermont, and
central and southern New Hampshire also contribute to the Boston
problem, by virtue of lying to the southwest, west or northwest of
Boston. By virtue of lying to the southwest of Portsmouth, New
Hampshire, the states of Connecticut, Rhode Island, and Massachusetts
contribute to Portsmouth's nonattainment problem. Western and northern
New York State, Vermont, and central and southern New Hampshire lie to
the west and northwest of the Portsmouth nonattainment area, and thus
also contribute to the Portsmouth problem. The Boston area, as well as
New Hampshire, Vermont, and New York State, lie to the southwest or
west of Maine, and thus contribute to nonattainment and maintenance
problems in Maine.Recently, and too late for inclusion in the
rationale of the SNPRM, three additional studies have become available,
described below. These new studies confirm the conclusions indicated by
the previous studies.
EPA has completed a modeling analysis for the OTC to examine the
potential impacts of region-wide NO<INF>X-oriented control strategies
in portions of the eastern United States.\12\ The pertinent purposes of
this analysis were (1) to identify whether a set of alternative
regional controls would reduce ozone transport into and along the
Northeast ``Urban Corridor'' to below 120 ppb, and (2) to examine the
incremental benefits, in term of ozone reductions in the Corridor, from
the application of control strategies within the Corridor only and
within the entire OTR. For this analysis, the ``Urban Corridor'' is
defined as the contiguous serious and severe ozone nonattainment areas
extending from Washington, DC, through Baltimore, Philadelphia, New
York City, and New England to southern New Hampshire.
\12\See ``Summary of EPA Regional Oxidant Model Analyses of
Various Regional Ozone Control Strategies'', November 28, 1994.
For the analysis EPA used ROM (see 59 FR at 48674), a photochemical
grid model covering the eastern half of the United States and
southeastern Canada. Model simulations were performed for two
meteorological episodes: July 1-15, 1988 and July 13-21, 1991. The July
1988 period was a severe and widespread ozone episode in most sections
of the modeling domain. During the July 1991 period, high ozone
concentrations were limited to the Midwest and Northeast.
Meteorological weather patterns were quite favorable for large-scale
ozone and precursor transport into and along the Urban Corridor during
both episodes.
EPA modelled several scenarios simulating very significant emission
reductions (on the order of 35-40 0.000000or NOXand VOC) in the OTR.
These scenarios included, among others, reductions from combinations of
measures, including the Clean Air Act-mandated control programs, a 0.15
lb/MMBtu NOXlimit, an additional ``corridor control package,''
and LEV. None of these emission reduction combinations was sufficient
to reduce ozone levels to below 0.12 ppm throughout the region.
Specifically, even with the most effective combination of measures,
several areas, including the New York City area and parts of New
England, were not in attainment by the year 2005. Specifically in New
England, even the most effective combination of these measures did not
result in attainment in the Boston area and parts of Connecticut and
Rhode Island by the year 2005. Because emissions are lower in 2005 than
in 1999 (the attainment year for serious areas in the OTR), it is a
reasonable extrapolation from this data that an even greater
nonattainment problem remained in 1999, and that a maintenance problem
in these areas is to be expected. This provides additional support to
EPA's conclusions from the SNPRM that very large emission reductions
will be required throughout the OTR to bring all areas into attainment.
EPA also used ROM to examine the impact on air quality of a regionwide
OTC LEV program applied in addition to a Clean Air Act 2005 base
case scenario and a 0.15 lb/MMBtu NOXprogram in the OTR. Given
that, due to fleet turnover, reductions from the OTC LEV program would
be only partially achieved by 2005, EPA's ROM analysis found the
incremental improvements in ozone levels due to application of the OTC
LEV program (reductions of 3-6 ppb in daily maximum ozone levels) to be
relatively large. EPA found this incremental improvement from OTC LEV
most evident when the LEV results are compared with the results of
simulating the impact of a ``corridor control strategy'' that would
result in similar emission reductions.
A further discussion of this recent model analysis is included in
the response-to-comments documents.
New York State reached conclusions that support the studies
described above, after applying the Urban Airshed Model (UAMIV) to the
modeling domain being used in the New York and Connecticut ozone
attainment demonstrations.\13\ These studies utilized the CALMET
procedure for generating meteorological inputs to UAM. Consequently,
resulting wind fields and mixing heights differed from those used in
the ROM analyses and in earlier UAM studies conducted by the same
investigators. New York State's most recent UAM study shows that it
would be impossible to demonstrate attainment unless large reductions
in regional ozone transported into the domain were realized. In this
UAM study, it is shown that a local strategy reflecting 75reduction
in VOC and 25reduction in NOXcombined with an upwind regional
strategy reflecting 75reduction in NOXand 25reduction in VOC
would be necessary to attain the NAAQS throughout the New York UAM
domain. These results add credence to the ROM matrix findings and
results from ROM simulations performed for the OTC, which came to
similar conclusions.
\13\See Kuruvilla, John et. al., ``Modeling Analyses of the
Ozone Problem in the Northeast'', prepared for U.S. EPA, CA No.
X819328-01-0, EPA document no. EPA-230-R-94-108, 1994.
In the New York UAM analysis, both large VOC and large NOX
reductions were effective in reducing peak ozone concentrations, with
the VOC controls being somewhat more so. However, predicted reductions
in ozone were more extensive over a larger area when NOXwas
reduced by large amounts. This latter finding with the UAM is
consistent with ROM analyses that suggest that large NOX
reductions will be needed to reduce regional transport to at or below
120 ppb of ozone. As noted above, the New York UAM analyses to date are
consistent in predicting that large reductions to incoming regional
ozone (through control of ozone precursors) will be needed to
demonstrate attainment further downwind with the UAM.
The New York UAM analysis uses more refined, localized
meteorological estimates (CALMET), instead of coarser ROM meteorology,
as well as the updated interim regional inventory, rather than 1985
National Acid Precipitation Assessment Program emissions. This study is
close to what New York is expected to use for its attainment
demonstration and rate-of-progress SIPs; thus, the study is
particularly helpful.
Finally, EPA performed studies designed to determine the extent to
which improved air quality in recent years is due to meteorological
fluctuations compared to reduced VOC
[[Page 4722]]
emissions.<SUP>14 These studies, discussed in more detail in the
response-to-comments documents, included the development and
application of a statistical procedure for normalizing apparent ozone
air quality trends to account for confounding meteorological factors.
The studies concluded that after meteorology is normalized, there has
been a downward trend in ozone concentrations of 1-2aer year, from
1981 through 1993 (the end date of the studies). EPA then conducted a
ROM test that examined the impact on ozone levels of the reduction in
VOC and NOXemissions between 1988 and 1991. ROM predicted a
decrease in ozone levels that matched the decrease observed in the
meteorological studies. EPA views these studies as confirmation of the
validity of the ROM model's estimates.\1\4See Briefing, ``Urban
Ozone Trends Adjusted for Meteorology''; See also Cox, William M.
and Chu, Shao-Hung, ``Meteorologically Adjusted Ozone Trends in
Urban Areas: A Probabilistic Approach'', Atmospheric Environment,
Vol. 27B, No. 4, pp. 425-434, 1993.
For its conclusions, EPA relies on (1) the initial ROM studies
showing that 50-75NOXreductions (from 1990 levels) from the OTR
as a whole are needed to bring the serious and severe nonattainment
areas into attainment by 2005; (2) the wind trajectory analysis
supporting the conclusion that locations lying anywhere from the south
through northwest of each of those nonattainment areas must contribute
that level of NOXreductions in order for each of those
nonattainment areas, respectively, to attain; and (3) the subsequent
ROM, NY UAM and meteorological studies confirming the results of the
initial ROM and wind-trajectory analysis. Based on these, EPA concludes
that 50-75NOXreductions from the 1990 levels in each state (or,
in the case of Virginia, the portion of the state) in the OTR will be
needed in order for each of the serious and severe areas from Baltimore
northeast through Portsmouth, New Hampshire to attain the standard. In
addition, based on the same analyses, EPA concludes that 50-75VOC
reductions from the 1990 levels are needed in and near and (upwind of)
those nonattainment areas in order for each of those areas--including
the portions of the Washington, Philadelphia, New York, Providence and
Portsmouth areas just downwind and across state lines from those nearby
upwind VOC sources--to attain the standard by their respective
attainment dates.<SUP>15 The need for this large level of reductions,
coupled with the wind trajectory data, form the basis for EPA's
conclusions that virtually every area within the OTR contributes
directly to a nonattainment or maintenance problem in a downwind state
in the OTR.
\1\5For example, VOC sources in the northern Virginia portion of
the Washington nonattainment area contribute to nonattainment in the
Maryland portion of that area, and VOC sources in the New Hampshire
portions of the Boston nonattainment area contribute to
nonattainment in the Massachusetts portion of that area.
(c) Analysis of Inventory and Options for Control Measures
The next step in EPA's analysis is to assess the options available
for achieving the necessary reductions in NOXacross the OTR and
in VOCs in and near the Northeast Corridor of the OTR, which is
discussed in more detail in the SNPRM. See 59 FR at 48677-48684. For
this step, EPA first assessed the best available information about the
inventory of emissions across the OTR and then considered various
potential control measures to reduce emissions by the necessary amount.
In its analysis, EPA considered options that are at least potentially
reasonable and practicable across the entire OTR (referred to herein as
``potentially broadly practicable'' measures). In other words, EPA has
not considered options that, while perhaps potentially practicable to
some extent in some locations, would be impracticable if applied to
their full extent throughout the OTR.<SUP>16
\1\6EPA believes that whether such measures--particularly those
involving local land-use, highway, or mass transit infrastructure
changes--are practicable to some extent in individual areas depends
on a consideration of local factors that can be conducted only by
state and local citizens and governments. For that reason, EPA
cannot itself either determine or assume that those measures are
practicable to some extent in any particular area. As described
elsewhere in this notice, however, EPA has left states the
flexibility to demonstrate that such measures are indeed practicable
and hence might close any emissions reductions shortfall so as to
render emission reductions from new motor vehicles unnecessary.
i. Inventory Analysis
EPA relied on the 1990 interim regional inventory used for ROM and
UAM analyses and projected emissions growth to estimate NOXand
VOC emissions in 2005 (the attainment deadline for severe areas, except
for the New York-New Jersey-Connecticut area with the slightly later
deadline of 2007). EPA projected that highway vehicles will account for
approximately 3812f the total NOXinventory and 22270f the total
VOC inventory in 2005, indicating that substantial motor vehicle
controls would have to be an important part of a workable compliance
plan for the OTR. EPA projected the gasoline-powered light-duty vehicle
component of the inventory (the vehicle types that would be subject to
the OTC LEV program) to constitute 2812f total NOXemissions and
1912f total VOC emissions in the 2005 inventory.
ii. Analysis of Options for Control Measures Without More Stringent New
Motor Vehicle Standards
To identify and evaluate the full range of potentially broadly
practicable control options, EPA first analyzed the impact of measures
explicitly required by the Act, using the same ROM modeling tools used
to assess the overall magnitude of reductions needed in the OTR. The
Agency then analyzed other options to fill the shortfall in emissions
reductions, including a stringent limit on NOXemissions, measures
EPA included in proposed Federal Implementation Plans (FIPs) for three
areas in California, and measures listed in compilations of NOX
and VOC control measures prepared by EPA and the State and Territorial
Air Pollution Program Administrators/Association of Local Air Pollution
Control Officials (STAPPA/ALAPCO). Recognizing uncertainties in various
aspects of its analysis and EPA's authority to resolve those
uncertainties in favor of health and environmental protection, EPA
concludes that no combination of such measures would be sufficient to
achieve the necessary amount of reductions without more stringent
standards applicable to new motor vehicles.
EPA identified in the SNPRM the array of measures applicable to
stationary and mobile sources under the Act, and described its modeling
of the impacts of these measures on ambient ozone levels in the OTR.
EPA calculated that application of these controls would achieve
reductions by 2005 in the OTR of 20 0.000000or NOXand 37 0.000000or VOCs from
the 1990 baseline inventory, and concluded from ROM studies modeling
the impacts of these measures that this level of reductions would be
insufficient.
As explained in the SNPRM, EPA must account for problems in
calculating the impact of control measures, including imperfect
enforcement, control equipment malfunctions, and operating and
maintenance problems. Accounting for such problems through a ``Rule
Effectiveness'' factor diminishes the emissions reductions that one
could expect if all sources could fully comply with rules at all times.
See 59 FR at 48682. EPA noted that it had applied Rule Effectiveness
considerations in calculating the overall impact of the Act-mandated
controls for the ROM studies and for mobile sources within the MOBILE
emissions model. See 59
[[Page 4723]]
FR at 48679 n.36 and 48682. However, EPA did not apply Rule
Effectiveness values in calculating the impacts of other control
measures, thereby making these measures overly optimistic.In
addition to the Act-mandated controls, EPA also examined the impact of
a region-wide limit on NOXemissions of 0.15 lbs/MMBtu (the ``0.15
NOXstandard'') for boilers, gas turbines, and internal combustion
engines with a capacity of at least 250 MMBtu/hr. EPA calculated that
this level of control would achieve a 15reduction in inventory-wide
NOXemissions from a 2005 projected baseline, after application of
other controls mandated in the Act. Together with the mandatory
measures, this would achieve a total NOXemissions reduction in
the OTR of 32 0.000000rom 1990 baseline levels.
EPA explained in the SNPRM that it evaluated the 0.15 NOX
standard as representing the maximum emissions reduction from large
stationary sources that is not clearly unreasonable or impracticable.
See 59 FR at 48679. By this EPA explained that it did not mean that EPA
believes that such measures are in fact reasonable and practicable. See
59 FR at 48678.
In fact, on September 27, 1994--five days after publication of the
SNPRM--eleven of the thirteen OTC member States signed a Memorandum of
Understanding regarding regional NOXcontrols (NOXMOU)
somewhat less stringent than the 0.15 NOXstandard. Only
Massachusetts and Virginia have not signed the NOXMOU.
Designed to build on the existing NOXReasonably Available
Control Technology (RACT) program, the agreement represents a phased
approach to controlling NOXemissions from power plants and other
large fuel combustion sources. The first component (called ``phase II''
because the existing NOXRACT program is ``phase I''), to be
implemented by May 1999, would include three control zones in the
region: An inner zone ranging from the Washington, DC, metropolitan
area northeast to southeastern New Hampshire; an outer zone ranging
from the inner zone out to western Pennsylvania; and a northern zone
which includes much of northern New York and northern New England,
including most of New Hampshire.
Control requirements under the MOU vary with the zone in which the
various sources are located, with the most stringent requirements
occurring in the inner zone. Affected sources (boilers and indirect
heat exchangers with a maximum gross heat input rate of at least 250
MMBtu per hour and electric generating units producing at least 15MW of
electricity) in the Inner Zone will be required to reduce NOX
emissions by 65 percent from base year levels or emit NOXat a
rate of no more than 0.2 lbs/MMBtu. In the Outer Zone, NOX
emissions must be reduced by 55 percent from base year levels by May 1,
1999, or emissions must be limited to no more than 0.2 lbs/MMBtu.
Northern Zone controls remain at RACT levels during phase II.
The next phase (known as ``phase III'') would be implemented by May
2003. By that date, affected sources in both the Inner and Outer Zones
must reduce NOXemissions by 75 percent from base year levels or
limit NOXemissions to no more than 0.15 lb/MMBtu. Affected
sources in the Northern Zone would be subject to regulations that would
reduce their rate of NOXemissions by 55 percent from base year
levels, or would have to emit NOXat a rate of no greater than 0.2
lbs/MMBtu.
The NOXMOU provides for modified regulations for the May 1,
2003, targets if additional modelling and analysis show that these
modified regulations, in combination with regulations for controlling
VOCs, will result in attainment of the ozone standard throughout the
OTR. In such a case, the NOXMOU would have to be revised by
December 31, 1998.
Based on EPA's 1990 interim emissions inventory, EPA estimates that
the NOXMOU will result in about a 70 percent reduction in
NOXfrom these sources, or slightly less than the reduction that
would have occurred with the application of a region-wide 0.15 lbs/
MMBtu standard. EPA estimates that more than three-fourths of the total
NOXreductions to be obtained under the NOXMOU will be
achieved by 1999.
In addition to the Act-mandated measures and region-wide NOX
controls, EPA also considered a variety of NOXand VOC control
measures from STAPPA/ALAPCO compilations, transportation control
measures, California reformulated gasoline, and measures EPA proposed
for FIPs for California areas. As summarized in the SNPRM, most of the
NOXsource categories in the STAPPA/ALAPCO compilation were
already encompassed within the 0.15 NOXstandard. The remaining
STAPPA/ALAPCO categories of small stationary and area sources comprise
an extremely small portion of the stationary source segment of the
emissions inventory, and a still smaller portion of the overall
inventory. EPA also calculated that the transportation control measures
that EPA would consider potentially broadly practicable would yield
only a combined reduction of 2.5 0.000000rom 1990 baseline inventory-wide
NOXreductions. In the SNPRM, EPA identified the option of
extending the employee trip reduction (or employee commute options
(``ECO'')) program region-wide as potentially practicable. Upon further
consideration, EPA believes it is more appropriate to characterize
region-wide ECO as a measure that, while potentially practicable in
some urban and suburban settings, cannot be considered broadly
practicable if applied across the OTR. Deleting the emission-reduction
benefits of extending ECO region-wide, however, merely buttresses the
conclusions described above. For California reformulated gasoline, EPA
calculated a 1.4reduction in NOXemission from 1990 baseline
inventory-wide levels. For the proposed California FIP measures, EPA
also did not find additional options that were not either inappropriate
or unavailable in the OTR, or already encompassed within the Actmandated
controls or 0.15 NOXstandard. In sum, EPA concludes that
all other potentially broadly practicable options will be needed in
addition to more stringent controls for new motor vehicles throughout
the OTR, in order for the serious and severe ozone nonattainment areas
in the OTR to attain the ozone standard; those other options will not
produce emissions reductions sufficient to remove the need for such
motor vehicle controls. As described in the SNPRM, similar conclusions
apply with respect to VOC emission controls in and near the urban
Northeast Corridor nonattainment areas of the OTR.
iii. Determination Whether Reductions from OTC LEV or LEV-Equivalent
Program Are Necessary
As discussed in the SNPRM and above, EPA has concluded that there
are not sufficient broadly practicable options for making up the
shortfall in emissions reductions necessary for attainment and that all
of the emissions reductions associated with applying the OTC LEV or
LEV-equivalent program are necessary. See 59 FR at 48683-48684. EPA
calculated the impact of the OTC LEV program in 2005 from the 2005
projected inventory, over the reductions that will take place in New
York and Massachusetts as a result of their existing LEV programs
beginning in 1996. EPA did not account in those calculations for the
emissions associated with migrating and visiting vehicles. EPA
subsequently analyzed these migration effects and published a notice
describing them on October 24, 1994, 59 FR 53396. Since that notice,
EPA has done a more thorough analysis of these effects, which can be
found in the RIA
[[Page 4724]]
located in section V of the docket. EPA now estimates that those
migration effects result in a 16 ton per day increase in VOC emissions
and a 28 ton per day increase in NOXemissions in 2005 over EPA's
previous estimates of highway vehicle emissions under the OTC LEV
program. However, the benefits of the OTC LEV are still substantial and
EPA continues to believe that the information above and in the SNPRM
(see conclusion 59 FR at 48682) supports the conclusion that all of the
emission reductions associated with the OTC LEV program are necessary
and that no options other than that program are currently available to
achieve reductions from new motor vehicles. The OTC LEV program is
necessary unless an acceptable LEV-equivalent program is in effect.T
he OTC LEV program would be reasonable and practicable in the OTR, as
explained in the SNPRM, 59 FR at 48683-48684. EPA granted California a
waiver for the LEV program based on a finding of technical feasibility
and adequate lead-time; the California Air Resources Board (CARB) has
continued to find the program feasible with certification of several
categories of LEVs; New York and Massachusetts have also found that the
program is reasonable; and the legislative history of section 177
reflects the notion that extension of California standards to other
states would not place an undue burden on auto manufacturers.
iv. ZEV Equivalency
EPA requested comment in the SNPRM on whether it should use its
authority under section 184 to include a ``ZEV equivalency''
requirement--i.e., to require the OTR states to achieve the additional
emissions reductions associated with the ZEV production mandate if the
Agency were not to require the OTR states to adopt the ZEV mandate. See
59 FR at 48684. EPA noted that in an August 4, 1994, letter, the Chair
of the OTC stated that, for purposes of discussing different options
with the auto manufacturers, any alternative should be compared to the
full LEV program, including the ZEV mandate. In addition, commenters
suggested that EPA require that states' programs compel the automobile
manufacturers either to sell ZEVs or to achieve equivalent reductions
from the new vehicle sector.
EPA has decided that today's action should not require states to
achieve those benefits of the ZEV production mandate that are not
otherwise provided by the OTC LEV program.<SUP>17 First, EPA does not
interpret the OTC's recommendation as recommending that EPA issue such
a requirement. Regarding the ZEV production mandate, the OTC's February
10, 1994, recommendation states:
\1\7For purposes of today's action, the additional benefits of
ZEVs are NMOG evaporative and NOx tailpipe emissions. Because the
LEV program's fleet NMOG average is unaffected by the ZEV mandate,
the ZEV mandate does not affect fleet NMOG tailpipe emissions, but
the mandate does result in increased reductions of NMOG evaporative
and NOx tailpipe emissions. Commenters also suggested that auto
manufacturers be responsible for CO, toxics and CO<INF>2 benefits of
ZEVs, but consideration of these benefits is beyond the scope of the
Agency's authority under section 184, which pertains solely to ozone
pollution and its precursors.
To the extent that a Zero Emission Vehicle sales requirement
must be a component of a LEV program under Section 177, such a
requirement shall apply. Further, if such a Zero Emission Vehicle
sales requirement is not a required component of programs adopted
under Section 177, individual States within the OTC may at their
option include such a requirement and/or economic incentives
designed to increase the sales of ZEVs in the programs they adopt.
Thus the OTC states clearly recommended that they be obligated to adopt
the ZEV mandate only if it were legally required for adoption of the
LEV program under section 177. Since EPA has concluded that states
adopting the LEV program are not obligated to adopt the ZEV mandate
under section 177 (see discussion in section IV.B.3. below), the OTC
states have not recommended that EPA require state adoption of the ZEV
mandate. The states also clearly expressed their wish to retain
authority as individual states to adopt ZEV mandates. This in no way
suggests that the states wanted EPA to require those who choose not to
adopt a ZEV production mandate to achieve its benefits through other
requirements applicable to manufacturers of new motor vehicles.
The February 10 recommendation does not elsewhere reflect any
desire that EPA require the states to achieve the additional benefits
associated with a ZEV mandate. The recitation clauses in the OTC's
recommendation state the OTC's expectation that EPA should evaluate
alternatives to the OTC LEV program according to specified criteria.
This does not, however, amount to a request that EPA require that
states achieve the benefits associated with the ZEV mandate. Rather,
EPA believes this is best understood as indicating the OTC's desire
that EPA should consider other options to achieve the same reductions
from new motor vehicles through a LEV-equivalent program. In so doing,
EPA believes the OTC's recommendation is best understood to underscore
that such an option should also advance technology.
Second, the August 4, 1994 letter from the OTC does not support the
view that EPA should require that states achieve the additional
emissions benefits of the ZEV mandate. That letter does not purport to
interpret the OTC's February 10 recommendation.<SUP>18 Rather, that
letter sets forth the OTC's principles in approaching negotiations with
the automakers regarding a LEV-equivalent program. The August 4 letter
reflects the OTC's desire that the OTC's agreement to accept a LEValternative
would not deprive the OTC states of the ZEV benefits that
they would otherwise have the option to require. This is entirely
different from a recommendation that EPA require that the states
achieve the ZEV benefits.<SUP>19
\1\8EPA need not resolve whether it is appropriate to rely on
such a letter to determine the OTC's intent.
\1\9Even if the OTC had intended that EPA require state programs
requiring from the new motor vehicle sector the additional benefits
provided by a ZEV production mandate, it is unlikely that EPA could
issue such a requirement. EPA received no comments explaining how,
without adopting a ZEV mandate, states could require the additional
ZEV mandate emission benefits from the new motor vehicle sector and
not violate sections 209 and 177.
d. The Effect of a Possible LEV-Equivalent Program on the Need for OTC
LEV
As mentioned above, EPA is continuing to work with the interested
parties to determine whether a LEV-equivalent program could be
developed. Several commenters have argued that the possibility of a
LEV-equivalent program precludes EPA from finding that OTC LEV is
necessary. EPA disagrees with these commenters for the reasons given in
the SNPRM, 59 FR 48683 (cols. 2-3). There is no currently available
method (other than adoption of a LEV program under section 177) for a
state unilaterally to require emission reductions from new motor
vehicles. The alternative program being developed by interested parties
is not an option that individual states can adopt now. The alternative
requires the automakers' consent to tighter standards and the
automakers have made it clear that their consent will not be given
without certain conditions being met--including the condition that all
OTC states agree to the alternative. Not all OTC states have agreed to
an alternative, and EPA does not have authority to require them to do
so. In addition, the automakers have indicated that their agreement to
a LEV-equivalent program is contingent on New York and
[[Page 4725]]
Massachusetts dropping their ZEV programs. EPA cannot require those
states to take such an action. Furthermore, the alternative would
likely require either EPA regulations or a consent decree or both
before it would be valid. EPA cannot now find that the OTC LEV program
is unnecessary even though a LEV-equivalent program might become
available in the near future. As discussed elsewhere in this notice,
however, EPA has qualified its finding that OTC LEV is necessary by
providing that that program will not be considered necessary, and hence
will not be required, if and when EPA finds that an acceptable LEVequivalent
program is in effect.<SUP>20\2\0 On another point
raised in the SNPRM, EPA noted that it was considering an extension
of its cross-border sales policy to Maine dealers. EPA has made this
extension. See letters from Mary T. Smith to Honorable Olympia J.
Snowe and Honorable William S. Cohen, dated October 12, 1994.
e. Particular Circumstances of OTC LEV Program.
Several particular aspects of the OTC LEV program further support
EPA's conclusion that it is necessary to adopt the program region-wide
to attain the greatest amount of emissions reductions and to facilitate
operation of the program, as explained in more detail in the SNPRM. See
59 FR at 48684-48685. These circumstances include: The interstate
nature of the business of selling new cars, particularly among the
smaller Northeast states and especially along their border areas; the
need for states to adopt the program as soon as possible because the
fleet turnover on which the emissions reductions depend takes
substantial time; and the mobility of cars throughout the dense
transportation infrastructure in the Northeast, so that the sale of
cars meeting less stringent standards in part of the region could
compromise environmental benefits across the region. The mobility of
motor vehicles in the OTR supports the conclusion that the LEV program
is needed throughout the OTR, to ensure that both the motor-vehiclerelated
portion of the overall NOXreduction needed throughout the
OTR, and the motor-vehicle-related portion of the overall VOC
reductions needed in and near the urbanized Northeast Corridor, are
actually achieved.
f. Conclusions Regarding Need for OTC LEV or a LEV-Equivalent Program
for Purposes of Bringing Downwind States Into Attainment by the Dates
Provided in Subpart 2 of Part D of Title I
The next step in EPA's analysis in the SNPRM was to address
specifically the need for the OTC LEV program by the 1999, 2005, and
2007 attainment deadlines for the serious and severe areas in the OTR.
As noted above, EPA's conclusion that 50to 75reduction from a 1990
baseline inventory in NOXemissions throughout the OTR and in VOC
emissions in and near the urban areas is constant over time. EPA's
modeling focused primarily on the 2005 inventory, at which time growth
since 1990 must be offset in addition to achieving the 50to 75
reductions. As EPA explained in the SNPRM, there is no reason to
believe that the conclusion that emission reductions equivalent to
those achieved by the OTC LEV program are necessary would be different
for the New York-New Jersey-Connecticut severe area, which has a 2007
attainment deadline. This is because the control options EPA considered
will not achieve such greater reductions in the extra two years so as
to make up the shortfall needed for attainment. Also, each of these
three states needs the program in order that the other two may attain
by 2007, as they share a common airshed and commuters from each of
these states contribute emissions to the others. For these same
reasons, these three states may also need the program in order that the
southern New Jersey-Philadelphia nonattainment area may attain by 2005.
Based on the ROM and trajectory analyses described in the SNPRM and
the analysis of alternative control measures, EPA also believes that,
unless an acceptable LEV-equivalent program is in effect, all of the
OTR states need the OTC LEV program in order that serious areas with a
1999 attainment deadline may attain on time. As noted above, because
emissions will be lower in the OTC nonattainment areas in 2005 than in
1999, it is a reasonable extrapolation from the modeling data that an
even greater nonattainment problem will remain in 1999 than in 2005.
Even the limited reductions from the OTC LEV program in model year 1999
are actually necessary, given the reductions that need to be achieved
in upwind states in order for each of these areas to attain on time.
Further, the attainment date for those serious areas may well extend
beyond 1999. This provides another reason to resolve in favor of acting
quickly, any uncertainties with regard to the need for an OTC LEV or
LEV-equivalent program to bring serious areas into timely attainment.
Three years of data are needed to actually achieve attainment, and the
states may legally extend their attainment deadlines for two one-year
periods if one exceedance of the NAAQS occurs in the deadline year. It
is quite possible that at least some of the serious areas with 1999
deadlines will need to rely on these extensions through 2001. Certainly
current modeling indicates that the best chance for these areas to
attain by their attainment dates would be through use of these one-year
extensions. Emission reductions from the OTC LEV program would be
necessary to offset growth and sustain attainment-level air quality in
2000 and 2001, when the program will generate increasing reductions due
to fleet turnover.
In summary, based on the analysis in the SNPRM and consideration of
the comments, EPA concludes that (1) emission reductions from the OTC
LEV or a LEV-equivalent program are a necessary part of the 50-75
NOXand VOC reductions needed from upwind states to bring serious
and severe areas stretching from the Washington, DC nonattainment area
to the Portsmouth, New Hampshire nonattainment area into attainment by
the 1999, 2005, and 2007 deadlines applicable to those areas; (2) the
reductions from OTC LEV or a LEV-equivalent program will be needed in
areas located in a broad arc extending from the south through the
northwest of each of those areas; (3) such a program is also needed in
the remaining parts of the OTR to maintain the program's effectiveness
in light of dealership trading and migration of vehicles throughout the
OTR; and (4) the OTC LEV program is the only currently available
program for reducing emissions from new motor vehicles. Therefore, EPA
concludes that the OTC LEV program is necessary in each state (or in
the case of Virginia, portion of the state) in order to bring all of
those serious and severe nonattainment areas into attainment by those
dates, unless an acceptable LEV-equivalent program is in effect.
3. OTC LEV or LEV-Equivalent Program is Also Needed for Maintenance
In the SNPRM, EPA also addressed how maintenance of the ozone NAAQS
after it is achieved is relevant to EPA's analysis. See 59 FR at 48687-
48690. First, EPA explained its legal authority to consider maintenance
under both sections 110(k)(5) and 184, and then described why OTC LEV
or a LEV-equivalent program is necessary for maintenance.
a. Legal Analysis
EPA concludes that it has authority to act, even under section
110(k)(5), even prior to submission of attainment demonstrations under
section 182, to require submission of measures
[[Page 4726]]
necessary for compliance with the maintenance aspects of section
110(a)(2)(D), as discussed in more detail in the SNPRM. In the SNPRM
and NPRM discussions, EPA emphasized the relocation of maintenance in
general to section 175A in the 1990 Amendments to the Act, together
with the retention of maintenance as an explicit consideration under
section 110(a)(2)(D) for purposes of addressing pollution transport.
Particularly in light of the staggered attainment deadlines under
section 181 for ozone, upwind areas with later deadlines may continue
to generate emissions interfering with downwind maintenance in downwind
areas with shorter attainment deadlines. As with the attainment
analysis, EPA concludes that it is important to act now, because
reductions from the OTC LEV and LEV-equivalent programs are dependent
on fleet turnover, and delay would cause the irrevocable loss of
emissions reductions necessary for downwind maintenance. Also,
uncertainty in the factual analysis for maintenance should be resolved
in favor of health and the environment for the same reasons EPA
described in the attainment discussion.EPA also concludes
maintenance is a proper consideration under section 184(c), as
described in more detail in the SNPRM and NPRM. While the language of
section 184(c) references timely attainment and does not explicitly
refer to maintenance, EPA concluded that ``attainment'' should be
understood to include ``maintenance'' where the issue is whether
measures are ``necessary'' to comply with pollution transport
requirements. This is because it does not make sense to believe
Congress intended that section 184 would not reach a measure in fact
necessary for maintenance, when the result of a failure to implement
the measure would therefore be downwind areas' relapse into
nonattainment. Also, EPA believes that the OTC is an entity also
established under section 176A, which encompasses both the attainment
and maintenance aspects of section 110(a)(2)(D). Section 184 simply
adds stringency to section 176A in light of the serious problem in the
northeast. It therefore makes sense to believe Congress did not intend
in section 184(c) to displace the more general authority of a
commission under section 176A to make recommendations, and for EPA to
approve recommendations, concerning both the attainment and maintenance
aspects of section 110(a)(2)(D). EPA has reviewed the comments
submitted on this issue and continues to believe that it has the
authority to consider maintenance when acting pursuant either to
section 110 or section 184 for the reasons given in the SNPRM and in
the response-to-comments documents.
Beyond that, as described earlier, EPA believes that it may treat
the OTC submittal also as a request with recommendations under section
176A, which plainly authorizes EPA to approve such a request if its
recommended measures are necessary to prevent interference with
maintenance in downwind states under section 110(a)(2)(D).
b. Technical Analysis
EPA is concluding that, unless an acceptable LEV-equivalent program
is in effect, the OTC LEV program is necessary for states in the OTR to
maintain the ozone NAAQS after they achieve the standard, as discussed
in the SNPRM. See 59 FR at 48688. EPA bases this conclusion on its
analysis of emissions growth in the OTR which the additional measures
must neutralize, even after sufficient controls for attainment by the
attainment deadlines are in place. This growth results especially from
increasing vehicle miles traveled (VMT), which tends to overcome
reductions resulting from turnover to the Tier 1 standards and
implementation of advanced inspection/maintenance programs. Therefore,
the high level of reductions needed to attain the NAAQS are also needed
from the same areas to maintain the NAAQS, and OTC LEV or a LEVequivalent
program is needed from those areas for the same reason.
The Agency's analysis of available control options shows that they
are insufficient to produce the emissions reductions needed to bring
downwind areas into attainment without more stringent standards for new
motor vehicles. The Agency therefore concludes that such options would
a fortiori be insufficient to achieve the emissions reductions needed
to maintain the standard over two consecutive ten-year periods
following redesignation (as required under section 175A). The
additional ROM and meteorological studies described above tend to
confirm that the serious areas in the Northeast Corridor--including the
New England areas--will not be able to attain and maintain the ozone
standard without a combination of measures including OTC LEV or a LEVequivalent
program. (The response-to-comments documents include
additional support for this conclusion.)
EPA explained that the OTC LEV or LEV-equivalent program will
continue to accrue additional benefits through the year 2028. EPA
calculated that in 2015 (the latest year for which it has projected
emissions reductions), the program would yield a 39reduction in
NOXemissions and a 38reduction in VOC emissions from highway
vehicles compared to emissions in that year without the program.
EPA acknowledges that for the most part, sources in Maine do not
directly contribute emissions or ozone to an interstate ozone
nonattainment problem. Maine is included because vehicles purchased in
Maine may release emissions in parts of the OTR that do contribute to a
nonattainment or maintenance problem. A vehicle purchased in Maine may
travel to another state in the OTR because a Maine resident who
purchased the vehicle in Maine moved to the other state or traveled
there for purposes of work or recreation. This pattern is more common
in southeastern Maine, which is close to the New Hampshire city of
Portsmouth.
EPA's rationale for finding LEV necessary in New Hampshire is
several-fold. Parts of southern and central New Hampshire are northwest
of Boston, and trajectory studies support the hypothesis that emissions
and ozone from these areas contribute to the Boston nonattainment
problem. In addition, part of New Hampshire is in the Boston
nonattainment area; thus, vehicles in this area generate local NOX
and VOC emissions that are part of the problem on the Massachusetts
side of the state border. Vehicles in other parts of New Hampshire
should be subject to the OTC LEV program for the same reason as
vehicles in Maine, discussed above.
In addition, New Hampshire lies to the south and southwest of
Maine, and thus contributes to Portland and other Maine nonattainment
problems. Although the Maine areas are moderate with an attainment date
of 1996, it is possible that the LEV reductions, which will not begin
until 1999, will be necessary for attainment and maintenance in Maine.
At the least, this possibility provides EPA with another reason to
resolve any uncertainty over the necessity of OTC LEV in this state in
favor of requiring OTC LEV.
Specifically, the OTC ROM and the New York UAM/ROM Study clarify
the extent to which LEV may be needed for attainment and maintenance in
the northeastern portions of the OTR. Both studies (i) apply ROM 2.2 to
analyze what would happen with a recurrence of the July 1988
meteorological episodes in the year 2005, and (ii) incorporate the
interim regional emissions inventory as well as emissions reductions
from
[[Page 4727]]
controls required under the Clean Air Act Amendments. These studies
find that, for the episode days modelled, ozone levels for the
southeast coastal region in Maine hover at the 120 ppb standard. OTC
ROM, figures A-2 and B-2; New York UAM/ROM Study, figures 15a-c and
18a-c. It should be noted that the ROM model tends to underestimate
ozone levels in this seacoast region by failing to fully account for
the impact of the seabreeze. The ROM model tends to show higher levels
of ozone just off the coast, but it appears that seabreezes keep more
of the ozone plume over the shore. Accordingly, it is quite possible
that by the year 2005, this portion of Maine would remain in
nonattainment notwithstanding the imposition of all mandated Clean Air
Act controls.The attainment date for this area is 1996. Emissions
inventories are expected to decrease over time, so that the 2005
inventory is expected to be lower than inventories in the last part of
the 1990s. Accordingly, ozone levels in the last part of the 1990s in
Maine may be expected to be even higher than in the year 2005. For this
reason, it is possible that Maine's attainment dates will be extended
to or past 1999 through application of EPA's overwhelming transport
policy. Even if Maine's attainment date remains 1996, Maine appears
likely to have a problem maintaining the NAAQS standard in the late
1990s and early 21st century. Accordingly, EPA believes it relevant to
inquire into how to assure attainment and maintenance of the ozone
NAAQS in Maine.
The OTC ROM study shows that the beneficial impact of OTC LEV and
.15 lb/MMBtu NOXlimits throughout the OTR is an ozone reduction
of some 6-9 ppb, and that the beneficial impact of OTC LEV alone is
approximately 3 ppb. The spatial impact of these reductions is
difficult to discern from the ROM model due to, among other things, the
large grids it employs; thus, it is not possible to isolate the
benefits from stationary sources compared to mobile sources. Therefore,
it is possible that reductions from motor vehicles will prove to be a
necessary component of any control strategy designed to assure
attainment and maintenance for the Maine coastal areas. It is further
possible that emissions reductions from other mobile source measures
will not prove to be sufficient, and therefore that the reductions from
OTC LEV would be necessary.
Although the preceding conclusions are based on information that at
present is uncertain, EPA believes that it is appropriate to resolve
those uncertainties in favor of concluding that the emission reductions
that would be achieved by OTC LEV or an acceptable LEV-equivalent
program throughout Maine and New Hampshire (as well as states to the
south and west of Maine) are indeed needed to ensure maintenance (if
not also timely attainment) in Maine.
4. Relevance of EPA Transport Policy
As described in the SNPRM, the Agency's September 1, 1994 transport
policy addresses areas where overwhelming transport from upwind areas
with later attainment dates is a dominant factor accounting for
nonattainment in downwind areas with an earlier attainment date. Such
downwind areas may not be able to attain by the deadline due to the
impact of transport. EPA's policy is that states may seek to have EPA
interpret the Act so that, if it is impracticable to accelerate
controls upwind and other facts can be shown, then the downwind areas
might have additional time to attain beyond the section 181(a)(1)
dates. EPA anticipates that emissions reductions during any ``extension
period'' for downwind areas would apply to reaching attainment rather
than to maintenance. In addition, if EPA concludes that certain serious
areas in the OTR will not be able to reach attainment by 1999, and do
not qualify for any extensions, then they would be reclassified to a
higher classification (i.e., ``bump up'') under section 181(b)(2) of
the Act and would have additional time to attain. The OTC LEV or a LEVequivalent
program would ultimately also be necessary to achieve the
reductions needed by any such area in the period after 1999 to attain
by such later attainment dates.
B. Consistency of OTC LEV With Section 177 of the Clean Air Act
Introduction
EPA concludes that the OTC's recommendation is consistent with
section 177 of the Act, and that implementation of the ZEV production
mandate is unnecessary for the recommendation to be consistent with
section 177, for the reasons given in greater detail in the responseto
-comments document and in the SNPRM, 59 FR at 48690-48694. The
aspects of the OTC recommendation identified as potentially implicating
section 177 include: the statement in the OTC recommendation that
adoption of California reformulated gasoline is not a part of the
recommendation; the recommendation that EPA not require the ZEV
production mandate except to the extent required under section 177; and
the recommendation's failure to explicitly incorporate California's
regulations. Commenters raised other concerns about consistency of the
OTC's recommendation with section 177, including: whether incorporation
of the NMOG fleet average requirement would violate section 177;
whether a state's incorporation of the California LEV program after the
program is initiated in California would create a ``third vehicle'' due
to California's credit banking provisions; and whether a state without
a current nonattainment area or approved SIP can adopt the California
LEV requirements.
EPA has reviewed the comments provided since the publication of the
SNPRM and has concluded that the determination of consistency proposed
in the SNPRM should be made final. Therefore, EPA finds that the OTC
LEV recommendation is consistent with section 177 of the Act.
California Fuel Regulations
EPA finds that the OTC's choice not to include California's clean
fuel requirements in its recommendation does not violate section 177
because it neither contravenes the ``identical standards'' requirement
nor the ``third car'' prohibition of section 177. EPA addressed this
issue in detail in the SNPRM and continues to rely on that discussion.
See 59 FR at 48690-91. California's fuel provisions were not part of
California's waiver application under section 209 and are not governed
by section 209(a). Rather, they are addressed separately in section 211
of the Act. Section 211 allows states to regulate fuels differently
than EPA if they can demonstrate that such regulation is necessary to
meet air quality standards, except that California may regulate fuel
without such a showing. California's fuel standards are thus not
``standards * * * for which a waiver has been granted'' under section
If states were obligated to adopt California's fuel standards to
comply with section 177, then such states would also have to meet the
necessary showing under section 211 with respect to the fuel
requirements. This would contradict the structural separation in the
Act between vehicle and fuel requirements. It would also erect a
``necessary'' hurdle to adopting vehicle standards identical to
California's vehicle standards in a way not contemplated in section
177.
Moreover, given the specific language of section 177 (it ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}