[Federal Register Volume 65, Number 47 (Thursday, March 9, 2000)]
[Rules and Regulations]
[Pages 12476-12481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5630]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CT-054-7213A; A-1-FRL-6545-9]


Approval and Promulgation of Air Quality Implementation Plan; 
Connecticut, New Hampshire, and Rhode Island; Approval of National Low 
Emission Vehicle Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve State Implementation 
Plan (SIP) revisions submitted individually by the States of 
Connecticut, New Hampshire and Rhode Island, committing that each State 
will accept compliance with the National Low Emission Vehicle (National 
LEV) program requirements as a compliance option for new motor vehicles 
sold in the State. Connecticut submitted its SIP revision on February 
7, 1996 and February 18, 1999. EPA proposed approval of this submittal 
in a direct final rulemaking action on August 16, 1999 (64 FR 44450), 
and received

[[Page 12477]]

adverse comments. Rhode Island's submittal was made on February 22, 
1999 and November 17, 1999. New Hampshire's National LEV submittal was 
made on August 16, 1999. EPA proposed approval of New Hampshire's and 
Rhode Island's SIPs on December 22, 1999 (64 FR 71705). EPA received no 
comments on that proposal. In this action, EPA is responding to the 
comments received on Connecticut's National LEV SIP commitment, and is 
approving the National LEV SIP commitments for Connecticut, New 
Hampshire and Rhode Island.

DATES: This rule is effective on May 8, 2000.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 11th floor, Boston, 
MA. In addition, the information for each respective State is available 
at the Bureau of Air Management, Department of Environmental 
Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-
1630; the Air Resources Division, Department of Environmental Services, 
6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095; and the Office of 
Air Resources, Department of Environmental Management, 235 Promenade 
Street, Providence, RI 02908-5767.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 7, 1998, (63 FR 926) the Environmental Protection Agency 
(EPA) published a final rule outlining a voluntary nationwide clean car 
program, designed to reduce smog and other pollution from new motor 
vehicles. The National LEV regulations allow auto manufacturers to 
commit to meet tailpipe standards for cars and light-duty trucks that 
are more stringent than EPA can mandate. The regulations provided that 
the program would come into effect only if northeastern States and the 
auto manufacturers voluntarily signed up for it. On March 9, 1998 (63 
FR 11374), EPA found that nine northeastern States and 23 manufacturers 
had opted into the National LEV program and that the program is in 
effect. Now that it is in effect, National LEV is enforceable in the 
same manner as any other federal new motor vehicle program. National 
LEV will achieve significant air pollution reductions nationwide. A 
more complete description of the National LEV program was included in 
the proposed rulemaking actions, and will not be restated here.
    EPA is taking a final action to approve State Implementation Plan 
(SIP) revisions submitted individually by the States of Connecticut, 
New Hampshire and Rhode Island, committing that each State will accept 
automaker's compliance with National LEV program requirements as a 
compliance option for new motor vehicles sold in the State. Further, 
for Connecticut and Rhode Island, we are approving the States' backstop 
California low emission vehicle programs that would apply to any 
manufacturers not complying with National LEV. Connecticut submitted 
its SIP revision on February 7, 1996 and February 18, 1999. EPA 
proposed approval of this submittal in a direct final rulemaking action 
on August 16, 1999 (64 FR 44411, 64 FR 44450). EPA subsequently 
withdrew this action on November 12, 1999 (64 FR 61522) because adverse 
comments were submitted. Rhode Island's submittal was made on February 
22, 1999 and November 17, 1999. New Hampshire's National LEV submittal 
was made on August 16, 1999. EPA proposed approval of New Hampshire's 
and Rhode Island's SIPs on December 22, 1999 (64 FR 71705). EPA 
received no comments on that proposal. Below, EPA is responding to the 
comments received on Connecticut's National LEV SIP commitment, and is 
approving the National LEV SIP commitments for Connecticut, New 
Hampshire and Rhode Island.
    Response to Comments: On September 15, 1999, the American Canoe 
Association, Inc. (ACA), submitted adverse comments on the proposed SIP 
revision for the Connecticut commitment to accept National LEV. EPA 
took action to ensure that the Connecticut National LEV SIP commitment 
was not made part of the SIP by withdrawing that direct final 
rulemaking in the Federal Register (64 FR 61522). EPA stated that it 
would respond to the comments received and make a final determination 
on approval of the Connecticut National LEV SIP commitment in the 
future. As outlined below, some of these issues were addressed and 
resolved under the National LEV rulemaking, and EPA did not reopen 
these issues for reconsideration in proposing to approve the 
Connecticut National LEV SIP commitment.
    1. ACA Comment: The proposed SIP revision will result in increased 
auto emissions in Connecticut which will adversely affect Connecticut 
residents as well as residents in downwind States. This is based on 
ACA's observation that average emission standards for both passenger 
cars and light duty trucks for at least 1999 and 2000 model years for 
NMOG are lower under the CA LEV program than the National LEV program, 
and their assertion that air quality would suffer in Connecticut and in 
downwind states such as Rhode Island and Massachusetts because of this 
action.
    Response: As an initial matter, EPA found in the National LEV 
rulemaking that National LEV would produce NOX and VOC 
emission reductions equivalent to or greater than those from State by 
State adoption of California LEV throughout the Northeast Ozone 
Transport Region (63 FR 930). Connecticut's SIP commitment to National 
LEV is necessary to ensure that the National LEV program remains in 
effect and continues to produce emission reductions and associated air 
quality benefits. Thus, EPA disagrees with ACA's assertion regarding 
air quality benefits (see 63 FR 930-931 and Summary and Analysis of 
Comments, National Low Emission Vehicle Program, December 12, 1997 for 
further discussion).
    Moreover, when the State of Connecticut originally submitted the 
California LEV program to EPA in 1996, it stated that it preferred the 
National LEV program, and asked that EPA not act to approve the 
California program until issues regarding National LEV were resolved. 
When the State ultimately submitted its SIP commitment to accept 
National LEV for approval, the State made clear it intended EPA to 
approve Connecticut's commitment to National LEV in the SIP with the 
California LEV program as a backstop program, which would only apply if 
an automaker were no longer to subject to National LEV. Comparisons 
between California LEV and National LEV are not relevant for the 
purposes of this approval because EPA is acting on the SIP revision 
request that is before EPA. The SIP revision meets all Clean Air Act 
requirements and will strengthen the existing State Implementation 
Plan, resulting in federally enforceable emission reductions. ACA's 
opinion that another measure could have been utilized by the State and 
would result in more pollution reductions is not relevant to EPA's 
determination of whether to approve the State's submission under 
section 110(k) of the Clean Air Act. EPA is approving the State's 
request.
    Further, on June 25, 1998, Connecticut held a public hearing on the 
SIP submittal to commit to National

[[Page 12478]]

LEV. This hearing sought public input on the State's proposal to 
finalize its commitment to National LEV, and its plan to allow National 
LEV to be a compliance alternative to the States' California LEV 
program. No parties submitted adverse comments at that hearing. Thus, 
on February 18, 1999, Connecticut requested approval of the National 
LEV program, with the State's previously adopted California LEV program 
as a backstop.
    2. ACA Comment: NLEV is illegal under the Clean Air Act. ACA 
contends that NLEV is illegal because EPA does not have the authority 
to amend the current Tier 1 standards until at least 2004. ACA further 
contends that NLEV is illegal because it requires EPA to illegally 
surrender discretion over EPA's regulatory responsibilities. Finally, 
ACA contends that NLEV is illegal because EPA has no authority to 
decide whether a State may exercise its rights under section 177 of the 
Clean Air Act.
    Response: These issues were raised and resolved in the final 
National LEV rule (See 62 FR 31202-31208; 31221-31223, June 6, 1997; 63 
FR 935-945, 956, January 7, 1998; Summary and Analysis of Comments, 
National Low Emission Vehicle Program, May 1, 1997, 27-35, 71-74; 
Summary and Analysis of Comments, National Low Emission Vehicle 
Program, December 12, 1997, 21-24). Thus, all three of these issues 
relating to the legality of the National LEV program were closed upon 
promulgation of the final National LEV rule. EPA did not reopen in its 
proposed SIP approval rulemaking any issues related to the legality of 
the underlying federal program that States are committing to accept. 
Thus, these issues relating to the legality of the National LEV program 
were already closed for purposes of this SIP approval.
    3. ACA Comment: The Clean Air Act does not allow a State to use, or 
EPA to approve, a ``compliance alternative'' in a State that has 
adopted California's emission standards. ACA argues that section 177 is 
clear that no third set of vehicle emission standards is permitted. The 
standards that can be adopted are either CA LEV programs under section 
177, or the federal emission standards.
    Response: EPA also resolved in the final National LEV rule the 
issue of whether States may accept compliance with the National LEV 
program in lieu of compliance with State section 177 programs, and 
whether EPA may approve SIP revisions committing to accept National LEV 
in this way. EPA did not reopen this issue in this rulemaking by 
proposing to approve SIP revisions committing to accept National LEV as 
a compliance alternative.
    The entire National LEV program is premised on the concept that it 
will provide motor vehicle manufacturers an alternative to compliance 
with State section 177 programs in States that opt into the National 
LEV program. Moreover, the National LEV regulations provide detailed 
requirements that States must meet to opt into National LEV, including 
language for SIP revisions committing the State to accept compliance 
with the program. 40 CFR 86.1705-99(e). These provisions of the 
National LEV rule were premised on EPA's interpretation that neither 
section 177 nor section 209 bar a State from exempting motor vehicles 
from compliance with a State section 177 program if those vehicles 
complied with federal standards. The provisions were also premised on 
EPA's interpretation that sections 177 and 209 also do not bar EPA 
approval of a SIP committing the State to accept such compliance with 
federal standards. It was clear that sections 177 and 209 would bar a 
State from adopting the National LEV standards itself and requiring 
motor vehicle manufacturers to comply with such standards. However, EPA 
believed that sections 177 and 209 would in no way prevent a State from 
committing that it would not apply its section 177 requirements to 
motor vehicle manufacturers that chose to comply with a specified 
federal regulatory program. This interpretation distinguished between a 
State adopting new motor vehicle requirements that apply to 
manufacturers and are different from California's program, and a State 
providing that its State requirements under section 177 will not apply 
to manufacturers, as long as they comply with federal requirements. EPA 
promulgated the National LEV regulations based on this interpretation. 
Moreover, EPA did not reopen for consideration this fundamental legal 
interpretation, which supports the validity of the entire structure of 
the National LEV program, in this direct final rulemaking to approve 
Connecticut's SIP revision. EPA explained in the preamble to the 
National LEV final rule that EPA would be able to approve a SIP 
submission containing the specified language even without further 
notice-and-comment rulemaking. Here EPA chose to conduct notice-and-
comment rulemaking to address any other possible issues regarding the 
approvability of Connecticut's submission under section 110 of the CAA. 
63 FR 935-939. EPA did not reopen the compliance alternative issue in 
this rulemaking.
    Final Action: EPA has evaluated the SIP revisions submitted by 
Connecticut, New Hampshire, and Rhode Island and has determined that 
each is consistent with the EPA National LEV regulations and meet the 
section 110 requirements for SIP approvals. Therefore, EPA is approving 
the Connecticut SIP revision submitted on February 7, 1996 and February 
18, 1999; Rhode Island's SIP revision submitted on February 22, 1999 
and November 17, 1999; and New Hampshire's SIP revision submitted on 
August 16, 1999, which commit each State to the National LEV program.
    Nothing in this action should be construed as permitting 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.

II. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state laws as meeting federal requirements and imposes 
no additional requirements beyond those imposed by those state laws. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule allowing entities to comply with a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean

[[Page 12479]]

Air Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 May 8, 2000. 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.

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

    Dated: February 17, 2000.
Mindy S. Lubber,
Acting Regional Administrator, Region I.

PART 52--[AMENDED]

    40 CFR part 52 is amended as follows:
    1. The authority citation for part 52 continues to read as follows:

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

Subpart H--Connecticut

    2. Section 52.370 is amended by adding paragraph (c)(79) to read as 
follows:


Sec. 52.370  Identification of plan.

* * * * *
    (c) * * *
    (79) Revisions to the State Implementation Plan submitted by the 
Connecticut Department of Environmental Protection on February 7, 1996 
and February 18, 1999.
    (i) Incorporation by reference.
    (A) Connecticut regulation section 22a-174-36, entitled ``Low 
Emission Vehicles'' as dated and effective by determination of the 
Secretary of State on December 23, 1994.
    (B) Connecticut regulation section 22a-174-36(g), entitled 
``Alternative Means of Compliance via the National Low Emission Vehicle 
(LEV) Program'' as dated and effective by determination of the 
Secretary of State on January 29, 1999.
    (ii) Additional material.
    (A) Letter from the Connecticut Department of Environmental 
Protection dated February 7, 1996 submitting a revision to the 
Connecticut State Implementation Plan for the Low Emission Vehicle 
program.
    (B) Letter from the Connecticut Department of Environmental 
Protection dated February 18, 1999 submitting a revision to the 
Connecticut State Implementation Plan for the National Low Emission 
Vehicle program to be a compliance option under the State's Low 
Emission Vehicle Program.

    3. In Sec. 52.385, Table 52.385 is amended by adding new entries 
for section 22a-174-36, entitled ``Low Emission Vehicles'' and section 
22a-174-36(g), entitled ``Alternative Means of Compliance via the 
National Low Emission Vehicle (LEV) Program'' to read as follows:

Sec. 52.385 - EPA--approved Connecticut Regulations

* * * * *

                                Table 52.385.--EPA-Approved Rules and Regulations
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                                                   Dates
                                         ------------------------
   Connecticut State      Title/subject      Date        Date     Federal Register     52.370       Comments/
       citation                           adopted by   approved       citation                     description
                                             State      by EPA
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*                  *                  *                  *                  *                  *
                                                        *
22a-174-36              Low Emission        12/23/94      3/9/00  [Insert FR        (c)(79)      Approval of Low
                         Vehicles.                                 citation from                  Emission
                                                                   published date].               Vehicle
                                                                                                  Program.
22a-174-36(g)           Alternative          1/29/99      3/9/00  [Insert FR        (c)(79)      Approval of
                         Means of                                  citation from                  Alternative
                         Compliance via                            published date].               Means of
                         the National                                                             Compliance via
                         Low Emission                                                             the National
                         Vehicle (LEV)                                                            Low Emission
                         Program.                                                                 Vehicle (LEV)
                                                                                                  Program for
                                                                                                  the
                                                                                                  ``California''
                                                                                                  low emission
                                                                                                  vehicle
                                                                                                  program
                                                                                                  adopted above.
*                  *                  *                  *                  *                  *
                                                         *
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[[Page 12480]]

Subpart EE--New Hampshire

    4. Section 52.1520 is amended by adding paragraph (c)(65) to read 
as follows:


Sec. 52.1520  Identification of plan.

* * * * *
    (c) * * *
    (65) Revisions to the State Implementation Plan submitted by the 
New Hampshire Department of Environmental Services on August 16, 1999.
    (i) Incorporation by reference.
    New Hampshire regulation Chapter Env-A 3600, entitled ``National 
Low Emission Vehicle (National LEV) Program'' adopted July 21, 1999.
    (ii) Additional material.
    Letter from the New Hampshire Department of Environmental Services 
dated August 16, 1999 submitting the Low Emission Vehicle program as a 
revision to the State Implementation Plan.
    5. In Sec. 52.1525, Table 52.1525 is amended by adding new entries 
to existing state citations for Chapter Env-A 3600, entitled ``National 
Low Emission Vehicle (National LEV) Program'' to read as follows:

Sec. 52.1525--EPA-approved New Hampshire state regulations

* * * * *

                                            Table 52.1525.--EPA-Approved Rules and Regulations--New Hampshire
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Date        Date
           Title/subject                State citation chapter    adopted by   approved      Federal Register         52.1520             Comments
                                                                     State      by EPA           citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
National Low Emission     Vehicle    CH air 3600                     7/21/99              [Insert FR citation    (c)(65)           Approval of
 Program.                                                                                  from                                     commitment to
                                                                                          published date]......                     National Low
                                                                                                                                    Emission Vehicle
                                                                                                                                    Program.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Subpart OO--Rhode Island


Sec. 52.2070  Identification of plan.

    6. In Sec. 52.2070 the Table in paragraph (c) is amended by adding 
new state citations for Regulation Number 37, entitled ``Rhode Island's 
Low Emission Vehicle Program'' and in the Table in paragraph (e) by 
adding a new entry at the end of the Table in the non-regulatory SIP 
provision to read as follows:
    (c) EPA approved regulations.

                                      EPA Approved Rhode Island Regulations
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                                                             State
          State citation                Title/subject      effective    EPA approval date       Explanations
                                                             date
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
Air Pollution Control Regulation    Rhode Island's Low       12/7/99  [Insert FR citation   Includes National
 37.                                 Emission Vehicle                  from                  LEV as a compliance
                                     Program.                         published date].....   alternative.
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    (d) * * *
    (e) Nonregulatory.

                                           Rhode Island Non Regulatory
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                                                             State
                                         Applicable        submittal
    Name of non regulatory SIP          geographic or        date/      EPA approved date       Explanations
             provision               nonattainment area    effective
                                                             date
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
Letter outlining commitment to        Statewide              2/22/99  [Insert FR citation   Includes details of
 National LEV.                                                         from                  the State's
                                                                      published date].....   commitment to
                                                                                             National LEV.
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[FR Doc. 00-5630 Filed 3-9-00; 8:45 am]
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