[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Notices]
[Pages 14717-14718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7428]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6316-2]


Request From Massachusetts Concerning Zero Emission Vehicle 
Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for comment.

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SUMMARY: The Attorney General of the Commonwealth of Massachusetts has 
requested that EPA respond to certain questions related to whether 
Massachusetts's regulations requiring the sale of a certain number of 
zero emission vehicles in the calendar years 1998-2000 are preempted by 
the Clean Air Act. The questions have arisen in the context of a 
decision by the United States Court of Appeals for the First Circuit in 
a litigation between Massachusetts and automobile manufacturers. This 
notice announces the opening of a thirty day period for the submission 
of written comments regarding the issues raised by the Court decision 
and the request from Massachusetts.

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

ADDRESSES: Written comments regarding the request should be submitted, 
in duplicate, to Public Docket No. A-99-08 at the following address: 
U.S. Environmental Protection Agency, Air Docket (6102), Room M-1500, 
Waterside Mall, 401 M Street, SW., Washington, D.C. 20460. The Agency 
also requests that a separate written copy be sent to the contact 
person at the address noted below. The information received from 
Massachusetts, as well as any written comments received from interested 
parties, is available for public inspection in the Air Docket at the 
above address during from 8:00 a.m. to 5:30 p.m Monday to Friday, 
except on government holidays. The telephone number for EPA's Air 
Docket is (202) 260-7548. A reasonable fee may be charged by EPA for 
copying docket materials, as provided in 40 CFR part 2.

FOR FURTHER INFORMATION CONTACT: For more information about this 
document, please contact Michael Horowitz, Office of General Counsel 
(2344), 401 M St., SW, Washington, DC 20460; telephone (202) 260-8883; 
fax (202) 260-0586; and e-mail: [email protected]

SUPPLEMENTARY INFORMATION: On December 29, 1998, the U.S. Court of 
Appeals for the First Circuit issued a decision in American Automobile 
Manufacturers Ass'n v. Massachusetts Department of Environmental 
Protection, 163 F.3d 74 (1st Cir. 1998). In that decision, the court 
determined that it would allow EPA an opportunity to rule on certain 
issues relevant to whether Massachusetts's requirement that automobile 
manufacturers deliver for sale a certain number of zero emission 
vehicles (``ZEVs'') in the years 1998-2000 violated the Clean Air Act. 
The court therefore provided Massachusetts with ``a reasonable 
opportunity to obtain a ruling from the EPA. * * * However, if no 
agency ruling is forthcoming within 180 days from the date this opinion 
issues, the parties shall so notify this court. We will then decide the 
issues before us without the EPA's guidance.''
    Pursuant to the court's decision, on January 28, 1999, the Attorney 
General of the Commonwealth of Massachusetts sent a letter to the 
Administrator requesting EPA's opinion regarding the questions arising 
from the case.

I. Background

    This case arises from Massachusetts's regulations requiring that 
certain automobile manufacturers produce and deliver for sale in 
Massachusetts a combined total of 750 ZEVs during calendar years 1998 
and 1500 ZEVs during each calendar years 1999 and 2000. There are also 
certain reporting requirements related to these regulations. This case 
is the latest in a series of law suits that automobile manufacturers 
have brought against Massachusetts and New York related to those 
states' incorporation of California's Low Emission Vehicle program into 
their state laws. The following is a brief summary of the critical 
federal statutory provisions and the events leading up to the Court's 
decision. For further information, please review the December 28, 1998 
decision and the briefs filed in that case, as well as the earlier 
decisions resulting from the suits brought by manufacturers against New 
York and Massachusetts. 1
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    \1\ The briefs have been placed in the docket. The significant 
prior decisions in the Massachusetts litigation are as follows: AAMA 
v. Massachusetts DEP, 998 F. Supp. 10 (D. Mass. 1997); AAMA v. 
Massachusetts DEP, 31 F.3d 18 (1st Cir. 1994); AAMA v. Greenbaum, 
No.93-10799-MA, 1993 WL 443946 (D. Mass. Oct. 27, 1993). The 
significant decisions in the New York litigations are: AAMA v. 
Cahill, 152 F.3d 196 (2d Cir. 1998); AAMA v. Cahill, 973 F. Supp. 
288 (N.D.N.Y. 1997); Motor Vehicle Mfrs. Ass'n. (``MVMA'') v. New 
York Dep't of Envtl. Cons. (``New York DEC''), 79 F.3d 1298 (2d Cir. 
1996); MVMA v. New York DEC, 869 F. Supp. 1012 (N.D.N.Y. 1994); MVMA 
v. New York DEC, 17 F.3d 521 (2nd Cir. 1994).

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[[Page 14718]]

A. Relevant Clean Air Act Provisions

    Under section 209(a) of the Clean Air Act (``CAA''), states and 
localities are prohibited from adopting or attempting to enforce ``any 
standard relating to the control of emissions from new motor 
vehicles.'' Section 209(a) also prohibits state approvals ``relating to 
the control of emissions from any new motor vehicle * * * as condition 
precedent to the initial sale, titling * * * or registration of such 
motor vehicle.'' However, section 209(b) of the Act permits the state 
of California to request an EPA waiver from this prohibition if 
California determines that its standards are, in the aggregate, at 
least as protective of public health and welfare as applicable federal 
standards. EPA must grant this request unless it finds one of the 
following: (1) California's ``in the aggregate'' determination was 
arbitrary and capricious; (2) California does not need standards to 
meet compelling and extraordinary conditions; or (3) California's 
standards and accompanying enforcement procedures are not consistent 
with Clean Air Act section 202(a).
    There is no similar provision for other states to obtain a waiver 
from the prohibitions in section 209(a). However, under CAA section 
177, once California has promulgated its motor vehicle program, other 
states may adopt and enforce their own standards as long as such 
standards are ``identical to the California standards for which a 
waiver has been granted for such model year'' and such standards have 
been adopted at least two years before commencement of such model year. 
Section 177 further states:

    Nothing in this section * * * shall be construed as authorizing 
any such State to prohibit or limit, directly or indirectly, the 
manufacture or sale of a new motor vehicle * * * that is certified 
in California as meeting California standards, or to take any action 
of any kind to create, or have the effect of creating, a motor 
vehicle * * * different than a motor vehicle * * * certified in 
California under California standards (a ``third vehicle'') or 
otherwise create such a ``third vehicle'.

B. Factual Background

    In 1990, the California Air Resources Board (``CARB'') adopted its 
Low Emission Vehicle (``LEV'') program. One of the elements of that 
program was a requirement, beginning in model year 1998, that two 
percent of the cars offered for sale in California by a manufacturer 
must be ZEVs. That percentage would increase to five percent in model 
year 2001 and ten percent in model year 2003. California received a 
waiver for its LEV program, including the ZEV sales requirement, in 
1993. 58 FR 4166 (Jan. 13, 1993).
    New York and Massachusetts both promulgated regulations adopting 
California's LEV program, including the ZEV mandate, into their state 
regulations. Auto manufacturers challenged both state programs in 
federal court, claiming that the state programs were prohibited under 
section 209 and were not authorized under the provisions of section 
177. In both instances, manufacturers were not successful in their 
challenges. Courts in both the 1st and 2nd Circuit ruled that the state 
regulations were permitted under section 177.
    However, in 1996, California amended its regulations to eliminate 
its ZEV sales mandate until the 2003 model year. Later in 1996, 
California entered into Memoranda of Agreement (``MOAs'') with the 
seven largest automobile makers. As part of these MOAs, the automobile 
manufacturers agreed to supply a certain number of ZEVs in the state of 
California during calendar years 1998-2000. Massachusetts then revised 
its LEV regulations by replacing the preexisting ZEV sales mandate for 
the 1998-2002 model years with the ZEV sales portions of the MOAs, 
using the ZEV sales numbers in the MOAs.
    AAMA sued Massachusetts, claiming the revised ZEV regulations 
violated section 209(a) of the Clean Air Act.2 The District 
Court in Massachusetts ruled in favor of the auto 
manufacturers.3 However, on appeal, the 1st Circuit 
refrained from deciding the case, preferring instead to allow EPA to 
provide its views on the issue, if it chooses to do so. ``This matter 
is plainly within the EPA's primary jurisdiction, and its resolution 
could clearly benefit from a deep familiarity with the CAA and the 
public policy considerations that underlie these statutory provisions. 
We therefore refer this issue to the EPA for its consideration.'' 
4 The court then stayed further judicial action to allow 
Massachusetts the opportunity to obtain a ruling from EPA on the issues 
relevant to deciding the case. However, if EPA does not rule within 180 
days of the court's decision, the court has indicated that it will then 
decide the issues without EPA's guidance. Pursuant to the court's 
decision, the Massachusetts Attorney General sent a letter to the 
Administrator requesting EPA's opinion regarding the issues arising 
from the court's opinion.
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    \2\ AAMA also sued New York, which had not amended its ZEV 
mandate at all. The Second Circuit found for the auto makers in that 
case. AAMA v. Cahill, 152 F. 3d 196 (2d Cir. 1998).
    \3\ AAMA v. Massachusetts DEP, 998 F. Supp. 10 (D. Mass. 1997).
    \4\ AAMA v. Massachusetts DEP, 163 F. 3d 74, 83 (1st Cir. 1998).
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    EPA believes it is appropriate to seek comments from the public on 
this request from Massachusetts. EPA therefore requests that any 
interested parties provide comments on the issues raised by the Court's 
opinion and the letter from Massachusetts.

II. Procedures for Public Participation

    EPA will keep the record open until April 26, 1999. Upon expiration 
of the comment period, EPA will determine the appropriate response, if 
any, to the request from the Massachusetts Attorney General. Persons 
seeking information relevant to this proceeding may review the 
information provided at the EPA Air Docket. (Docket No. A-99-08).
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest 
possible extent and label it as ``Confidential Business Information'' 
(CBI). If a person making comments wants EPA to base its decision in 
part on a submission labeled CBI, then a nonconfidential version of the 
document which summarizes the key data or information should be 
submitted for the public docket. To ensure that proprietary information 
is not inadvertently placed in the docket, submissions containing such 
information should be sent directly to the contact person listed above 
and not to the public docket. Information covered by a claim of 
confidentiality will be disclosed by EPA only to the extent allowed and 
by the procedures set forth in 40 CFR part 2. If no claim of 
confidentiality accompanies the submission when it is received by EPA, 
it may be made available to the public without further notice to the 
person making comments.

    Dated: March 17, 1999.
Robert D. Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 99-7428 Filed 3-25-99; 8:45 am]
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