[Federal Register Volume 60, Number 21 (Wednesday, February 1, 1995)]
[Rules and Regulations]
[Pages 6027-6030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2491]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MA39-1-6772a; A-1-FRL-5136-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Massachusetts; Substitution of the California Low 
Emission Vehicle Program for the Clean Fuel Fleet Program (Opt Out)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, the Environmental Protection Agency is 
announcing approval of the State Implementation Plan submitted by the 
Commonwealth of Massachusetts for the purpose of meeting the 
requirement to submit the Clean Fuel Fleet Program or a substitute 
program that meets the requirements of the Clean Air Act. EPA is 
approving the State's plans for implementing a substitute program to 
opt out of the Clean Fuel Fleet program. On November 15, 1993, the 
Commonwealth of Massachusetts formally submitted a revision to their 
SIP to require the sale of California certified low emitting vehicles 
in Massachusetts beginning with model year 1995. Further, on May 11, 
1994, the Commonwealth formally notified EPA of its decision to 
substitute Massachusetts' version of the California Low Emission 
Vehicle (MA LEV) Program for the Clean Fuel Fleet (CFF) Program as 
provided for in section 182(c)(4)(B) of the Clean Air Act (CAA).

DATES: This final rule is effective on April 3, 1995 unless adverse or 
critical comments are received by March 3, 1995, in which case the rule 
will be withdrawn. If the rule is withdrawn, timely notice will be 
published in the Federal Register.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region I, JFK Federal Building, Boston, MA 02203. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours, by appointment at the 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 10th floor, Boston, 
MA 02203; Air and Radiation Docket and Information Center, U.S. 
Environmental Protection Agency, 401 M Street SW, (LE-131), Washington, 
DC 20460; and the Division of Air Quality Control, Department of 
Environmental Protection, One Winter Street, 8th floor, Boston, MA 
02108.

FOR FURTHER INFORMATION CONTACT: Damien Houlihan, (617) 565-3266.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 182(c)(4)(A) of the Clean Air Act requires certain States, 
including Massachusetts, to submit a State Implementation Plan (SIP) 
revision that includes measures to implement the Clean Fuel Fleet 
Program (CFFP). Under this program, a certain specified percentage of 
vehicles purchased by fleet operators for covered fleets must meet 
emission standards that are more stringent than those that apply to 
conventional vehicles. Covered fleets are defined as fleets of 10 or 
more vehicles that are centrally fueled or capable of being centrally 
fueled. The program applies to 1998 and later model year vehicles in 
the entire Commonwealth of Massachusetts which is comprised of two 
separate nonattainment areas. Section 182(c)(4)(B) of the Act allows 
states to ``opt out'' of the Clean Fuel Fleet Program by submitting for 
EPA approval a SIP revision consisting of a program or programs that 
will result in at least [[Page 6028]] equivalent long term reductions 
in ozone producing and toxic air emissions as a CFFP would.
    In accordance with section 182(c)(4), the Commonwealth of 
Massachusetts submitted a commitment to either adopt and submit a Clean 
Fuel Fleet Program or an equivalent substitute program. This was 
submitted for parallel processing on November 13, 1992, and a formal 
request was submitted on May 7, 1993. EPA proposed conditional approval 
of Massachusetts' action on June 7, 1993 (58 FR 31928). However, prior 
to final EPA action on Massachusetts' commitment, the Court of Appeals 
for the District of Columbia held that EPA's conditional approval 
policy was contrary to law. The court held that a base commitment from 
a state was not sufficient to warrant conditional approval from EPA 
under section 110(k)(4) of the Act. NRDC v. EPA, 22 F.3d 1125 (D.C. 
Cir. 1994). Therefore, EPA could not take final action on 
Massachusetts' commitment.
    In fashioning a remedy for EPA's improper use of its conditional 
approval authority, the court did not want states to be penalized for 
their reasonable reliance on EPA's actions. Massachusetts submitted a 
commitment to adopt a substitute for the CFFP by May 15, 1994, in 
reliance on EPA guidance, and the Commonwealth fulfilled that 
commitment by adopting and submitting the Low Emission Vehicle (LEV) 
program regulations on May 11, 1994. Therefore, EPA does not believe 
that Massachusetts should lose its ability to opt-out of the CFFP 
because of EPA's improper use of its conditional approval authority. 
EPA is today taking action on Massachusetts' submissions of November 
15, 1993 and May 11, 1994, which are intended to substitute MA LEV for 
the CFF program.
    The Act requires states to observe certain procedural requirements 
in developing implementation plan revisions for submission to EPA. 
Sections 110(a)(2) and 172(c)(7) of the Act require states to provide 
reasonable notice and opportunity for public comment before accepting 
the submitted measures. Section 110(1) of the Act also requires states 
to provide reasonable notice and hold a public hearing before adopting 
SIP provisions.
    EPA must also determine whether a state's submittal is complete 
before taking further action on the submittal. See section 110(k)(1). 
EPA's completeness criteria for SIP submittals are set out in 40 CFR 
part 51, appendix V (1993).

II. State Submittal

    Massachusetts submitted a SIP revision on November 15, 1993, and 
supplemented it on May 11, 1994, which substituted a low emission 
vehicle (LEV) program for the Clean Fuel Fleet program. Massachusetts 
held public hearings on October 30 and 31, 1991; November 1, 1991; 
February 8, 9, 10 and 12, 1993; and October 1, 5-9, 1993 to entertain 
public comment on its SIP revisions; these hearings included the 
Commonwealth's proposal to opt out of the Clean Fuel Fleet Program with 
LEV. Massachusetts' regulation 310 CMR 7.40, ``California Low Emission 
Vehicle Program'' (the LEV program), was adopted by the Commonwealth on 
January 31, 1992. EPA reviewed the Commonwealth's submission for 
completeness, in accordance with the completeness criteria, and found 
the submittals to be complete on October 25, 1994.
    Massachusetts has limited its proposed LEV Program to passenger 
vehicles and light-duty trucks at the present time. When California Air 
Resource Board finalizes its standards for the remainder of the vehicle 
classes, Massachusetts will examine the potential air quality benefits 
of adopting the emission standards for medium duty vehicles, heavy-duty 
trucks, motorcycles, and off-highway equipment. By adopting the program 
for passenger vehicles and light-duty trucks, Massachusetts expects to 
decrease VOC and NOX emissions far in excess of what would be 
achieved from a CFF program (namely, 42 tons per summer day of VOC and 
35 tons per summer day of NOx as compared to 1.95 VOC and 0.99 NOx from 
a CFF program, long term). The Commonwealth exercised its choice to 
substitute enough equivalent emission reductions credit from its LEV 
program for the CFF program so that, of the total reductions obtained 
from the LEV program, only 1.95 tons per summer day VOC and 0.99 tons 
per summer day NOx will apply as a substitute for the CFF program.

III. Analysis of State Submission

    Section 182(c)(4) of the Clean Air Act, which allows states 
required to implement a Clean Fuel Fleet program to ``opt out'' of the 
program by submitting a SIP revision consisting of a substitute 
program, requires that the substitute program results in equal or 
greater emission reductions than does the Clean Fuel Fleet program. 
Also, EPA can only approve substitute programs that consist exclusively 
of provisions other than those required by the Clean Air Act for the 
area. Massachusetts' LEV program satisfies both of these requirements.
    Section 182(c)(4)(B) states that a measure can be substituted for 
all or a portion of the CFF program, and that such a substitute program 
will be approvable if it achieves long-term emission reductions 
equivalent to those that would have been achieved by the portion of the 
CFF program for which the measure is to be substituted.
    Massachusetts, in exercising its option under section 177 of the 
Clean Air Act, has adopted a LEV program which affects all new light 
duty vehicles, specifically passenger cars and light duty trucks under 
5750 pounds Gross Vehicle Weight Rating (GVWR) for vehicle model years 
1995 and later. The MA LEV program is a far reaching program designed 
to improve the emissions performance of vehicles over a long period of 
time. The program sets forth five different sets of emission standards, 
and vehicle manufacturers may market any combination of vehicles 
provided that the annual average emissions of each manufacturer's fleet 
complies with a fleet average limit that becomes more stringent each 
year. In addition, Massachusetts' LEV program requires manufacturers to 
begin to market a fixed percentage of zero emission vehicles (ZEVs) in 
model year 1998. The ZEV requirement will help ensure that the LEV 
program will result in reductions of ozone forming emissions to a 
degree that is at least equivalent to the Clean Fuel Fleet program.
    Massachusetts' LEV program will assure reductions of ozone-forming 
and air toxic emissions that are at least equivalent to those that 
would have been realized through implementation of a Clean Fuel Fleet 
program. The LEV program is a statewide program affecting the sale of 
all light duty vehicles. A Clean Fuel Fleet program affects a much 
smaller subset of vehicles, i.e. new covered fleet vehicles, that are 
already included in the LEV program. The LEV program has fleet average 
emission standards that are comparable to the Clean Fuel Vehicle (CFV) 
emission standards that apply to clean fuel fleet vehicles. With 
respect to long term emission standards for non-methane organic gases 
(NMOG), the Clean Fuel Fleet program requires that 70% of new covered 
light duty vehicle and light duty truck purchases in the affected 
fleets in model year 2000 and later meet the CFV emission standard of 
0.075 grams/mile, while the California LEV program requires that the 
long term NMOG standard for 100% of all light duty vehicles be no more 
than 0.062 grams per mile (model year 2003 and 
[[Page 6029]] later).1 Based on the above considerations, 
Massachusetts' LEV program has the potential to achieve emission 
reductions far in excess of those expected by the Clean Fuel Fleet 
program. The LEV program also has an earlier implementation date, 
beginning with model year 1995, than the fleet program.

    \1\Massachusetts does not currently have an enforceable NMOG 
standard as part of its program, but it is in the process of 
adopting one. Given the lack of an enforceable NMOG standard, there 
is no assurance that Massachusetts' LEV program will achieve the 
same emission benefits as if it had adopted California's NMOG 
average. Nonetheless, several factors support EPA's belief that the 
reductions of the LEV program will be equal to or greater than the 
reductions from a CFFP. First, Massachusetts does have a ZEV sales 
mandate, which might by itself provide reductions equal to or 
greater than the CFFP. Even if Massachusetts did not have a ZEV 
mandate, its LEV program still provides sufficient reductions to 
qualify as a substitute. Massachusetts' LEV program prohibits auto 
manufacturers from selling in Massachusetts any vehicle in the 
regulated class that is not certified in California. Manufacturers 
generally do not ``double-certify'' vehicles in California (i.e., 
manufacture both a LEV and a ULEV version of the same model). Auto 
manufacturer have said that the mix of vehicles sold in California 
does not differ significantly from the mix sold in Massachusetts. 
Given all these factors, it is unlikely that the NMOG average of 
vehicles sold in compliance with Massachusetts' LEV program would be 
so low that the LEV program would not reduce emissions at least as 
much as would a CFFP.
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    EPA, auto manufactures, and states are currently considering the 
possibility of developing a voluntary national LEV-equivalent motor 
vehicle emission control program. See 59 FR 48664 (Sept. 22, 1994) and 
59 FR 53396 (Oct. 24, 1994). EPA does not expect that today's approval 
will impede the development or implementation of such a program. If 
Massachusetts were to participate in a LEV-equivalent program, it would 
have the opportunity to revise its clean fuel fleet program 
substitution.
    EPA is publishing this rule without prior proposal because EPA 
views this as a noncontroversial amendment and anticipates no adverse 
comments. This action will be effective April 3, 1995 unless, by March 
3, 1995, adverse or critical comments are received.
    If such comments are received, this rule will be withdrawn before 
the effective date by publishing a subsequent document. In the Proposed 
Rules Section of this Federal Register, EPA has proposed the same 
approvals on which it is taking final action in this rulemaking. If 
adverse comments are received in response to this action, EPA will 
address them as part of a final rulemaking associated with that 
proposed action. EPA will not institute a second comment period on this 
action. If no adverse comments are received, the public is advised that 
this rule will be effective April 3, 1995.

Final Action

    EPA is approving Massachusetts LEV program as a substitute for a 
Clean Fuel Fleet program, as submitted by the state on November 15, 
1993 and May 11, 1994, pursuant to sections 177 and 182(c)(4)(B) of the 
Clean Air Act.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. A future document will inform the general public of 
these tables. On January 6, 1989, the Office of Management and Budget 
(OMB) waived Table 2 and Table 3 revisions (54 FR 2222) from the 
requirements of section 3 of Executive Order 12291 for a period of two 
years. The US EPA has submitted a request for a permanent waiver for 
Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the 
temporary waiver until such time as it rules on EPA's request. This 
request continues in effect under Executive Order 12866 which 
superseded Executive Order 12291 on September 30, 1993.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the Commonwealth is already imposing. Therefore, because the 
federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the federal-state relationship 
under the CAA, preparation of a regulatory flexibility analysis would 
constitute federal inquiry into the economic reasonableness of state 
action. The CAA forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 
1976); 42 U.S.C. 7410 (a)(2).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 3, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Note: Incorporation by reference of the State Implementation 
Plan for the Commonwealth of Massachusetts was approved by the 
Director of the Federal Register on July 1, 1982.

    Dated: December 19, 1994.
John P. DeVillars,
Regional Administrator, Region I.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

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

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

Subpart W--Massachusetts

    2. Section 52.1120 is amended by adding paragraph (c)(103) to read 
as follows:

Sec. 52.1120  Identification of plan.

* * * * * *
    (c) *  *  *
    (103) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on November 15, 
1993 and May 11, 1994, substituting the California Low Emission Vehicle 
program for the Clean Fuel Fleet program.
    (i) Incorporation by reference.
    (A) Letters from the Massachusetts Department of Environmental 
Protection [[Page 6030]] dated November 15, 1993 and May 11, 1994, 
submitting a revision to the Massachusetts State Implementation Plan 
which substitutes the California Low Emission Vehicle program for the 
Clean Fuel Fleet program.
    (B) A regulation dated and effective January 31, 1992, entitled ``U 
Low Emission Vehicle Program'', 310 CMR 7.40.
    (C) Additional definitions to 310 CMR 7.00 ``Definitions'' (dated 
and effective 1/31/92) to carry out the requirements set forth in 310 
CMR 7.40.
    (ii) Additional materials.
    (A) Additional nonregulatory portions of the submittal.
    3. Table 52.1167 of Sec. 52.1167 is amended by adding new entries 
to existing state citation for 310 CMR 7.00, ``Definitions''; and by 
adding new state citation for 310 CMR 7.40, ``U Low Emission 
Vehicles'', to read as follows:


Sec. 52.1167  EPA-approved Massachusetts State regulations.

 * * * * *

                               Table 52.1167.--EPA-Approved Rules and Regulations                               
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                                        Date                           Federal                      Comments/   
 State citation     Title/subject    submitted   Date approved by      Register     52.1120 (c)     unapproved  
                                      by State          EPA            citation                      sections   
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        *                  *                  *                  *                  *                  *        
310 CMR 7.00....  Definitions.....     11/15/93  February 1, 1995  [Insert FR               103  Approving      
                                       05/11/94                     citation from                 additional    
                                                                    published                     definitions   
                                                                    date].                        for.          
                                                                                                                
        *                  *                  *                  *                  *                  *        
                                                        *                                                       
310 CMR 7.40....  Low emission         11/15/93  February 1, 1995  [Insert FR               103  Substitute for 
                   vehicle.            05/11/94                     citation from                 CFFP.         
                                                                    published                                   
                                                                    date].                                      
                                                                                                                
        *                  *                  *                  *                  *                  *        
                                                        *                                                       
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[FR Doc. 95-2491 Filed 1-31-95; 8:45 am]
BILLING CODE 6560-50-P