[Federal Register Volume 67, Number 199 (Tuesday, October 15, 2002)]
[Proposed Rules]
[Pages 63583-63586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26173]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA087-7215; A-1-FRL-7393-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Low Emission Vehicle Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)

[[Page 63584]]

revision submitted by the Commonwealth of Massachusetts on August 9, 
2002 and August 26, 2002 which amends the Massachusetts Low Emission 
Vehicle (LEV) Program that is currently contained in the federally 
approved SIP. The regulations adopted by Massachusetts now include the 
California LEV II light-duty motor vehicle emission standards effective 
in model year 2004, the California LEV I medium-duty standards 
effective in model year 2003, and the smog index label specification 
effective model year 2002. In addition, revisions have been made to the 
zero emission vehicle (ZEV) requirements of the Massachusetts program 
in an attempt to keep these requirements consistent with California's. 
Massachusetts has adopted these revisions to reduce emissions of 
volatile organic compounds (VOC) and nitrogen oxides (NOX) 
in accordance with the requirements of the Clean Air Act (CAA). In 
addition, they have worked to ensure that their program is identical to 
California's, as required by section 177 of the CAA. EPA is proposing 
to approve the necessary emission reductions associated with 
Massachusetts' LEV requirements into the Massachusetts SIP because EPA 
has found that the requirements and the associated emission reductions 
are necessary for Massachusetts to achieve the national ambient air 
quality standard (NAAQS) for ozone. The intended effect of this action 
is to propose approval of Massachusetts LEV program's emission 
reductions. This action is being taken under section 110 of the Clean 
Air Act.

DATES: Written comments must be received on or before November 14, 
2002.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, EPA-New England, One Congress Street, 
Suite 1100, Boston, MA 02114-2023. Copies of the Massachusetts' 
submittal and EPA's technical support document are available for public 
inspection during normal business hours, by appointment at the Office 
of Ecosystem Protection, U.S. Environmental Protection Agency, EPA-New 
England, One Congress Street, 11th floor, Boston, MA and the Division 
of Air Quality Control, Department of Environmental Protection, One 
Winter Street, 8th Floor, Boston, MA 02108.

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

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Description of the SIP Revision and EPA's Action
    A. What is the Background for this Action?
    B. What is the California LEV Program?
    C. What are the relevant EPA and CAA requirements?
    D. What is the History of the Massachusetts Low Emission Vehicle 
Program?
    E. What about the zero emission vehicle requirements?
II. Proposed Action
III. What Are the Administrative Requirements?

I. Description of the SIP Revision and EPA's Action

A. What Is the Background for This Action?

    Under the Clean Air Act Amendments of 1990, all of Massachusetts 
was divided into two separate serious ozone nonattainment areas: the 
Eastern Massachusetts area and the Western Massachusetts area. The 
ozone attainment deadline for these areas was initially November 15, 
1999.
    To bring these areas into attainment, the Commonwealth has adopted 
and implemented a broad range of ozone control measures including stage 
II vapor recovery, numerous stationary and area source VOC and 
NOX controls, a vehicle inspection and maintenance (I/M) 
program, and the federal reformulated gasoline program. In addition, 
the Commonwealth has required that all model year 1995 and newer light 
duty vehicles newly sold in the Commonwealth meet California LEV 
emission standards. Massachusetts air pollution control regulations 
apply statewide.
    EPA issued a direct final rule to approve the Massachusetts LEV 
program effective as of January 31, 1992 in the Federal Register on 
February 1, 1995 (60 FR 6027). Since that time, California has modified 
its LEV program. As California modified its program, Massachusetts was 
obligated to make similar changes to its program. Section 177 of the 
CAA provides that states may adopt California vehicle standards 
provided that the standards are identical to California's. As such, as 
California makes modifications to its program, states that have adopted 
California standards are compelled to make similar changes. The current 
version of the Massachusetts program is intended to be identical to the 
current California program.

B. What Is the California LEV Program?

    The California Air Resources Board (ARB or Board) adopted 
California's second generation low emission vehicle regulations (LEV 
II) following a November 1998 hearing. These regulations are a 
continuation of the low emission vehicle (LEV I) regulations originally 
adopted in 1990 which were effective through the 2003 model year. The 
LEV II regulations increase the scope of the LEV I regulations by 
lowering the emission standards for all light- and medium-duty vehicles 
(including sport utility vehicles) beginning with the 2004 model year. 
There are several tiers of increasingly stringent LEV II emission 
standards to which a manufacturer may certify: low-emission vehicle 
(LEV); ultra-low-emission vehicle (ULEV); super-ultra low-emission 
vehicle (SULEV); partial zero-emission vehicle (PZEV); and zero-
emission vehicle (ZEV). In addition to very stringent emission 
standards, the LEV II regulations provide flexibility to manufacturers 
by allowing them to choose the standards to which each vehicle is 
certified provided the overall fleet meets the specified phase-in 
requirements according to a fleet average hydrocarbon requirement that 
is progressively lower with each model year. The LEV II fleet average 
requirements commence in 2004 and apply through 2010 and beyond. In 
addition to the LEV II requirements, minimum percentages of passenger 
cars and the lightest light-duty trucks marketed in California by a 
large or intermediate volume manufacturer must be ZEVs. The program 
includes a ``smog index'' label for each vehicle sold, the intent of 
which is to inform consumers about the amount of pollution coming from 
that vehicle relative to other vehicles.
    Subsequent to the adoption of the LEV II program, the U.S. EPA 
adopted its own substantially more stringent emission standards known 
as the Tier 2 regulations. In December 2000, the Board modified the LEV 
II program to take advantage of some elements of the recently adopted 
federal Tier 2 program to ensure that only the cleanest vehicle models 
will continue to be sold in California.

C. What Are the Relevant EPA and CAA Requirements?

    Section 209(a) of the CAA prohibits states from adopting or 
enforcing standards relating to the control of emissions from new motor 
vehicles or new motor vehicle engines. However, section 209(b) of the 
CAA allows the State of California to adopt its own motor vehicle 
emissions standards if a waiver is granted by the U.S. Environmental 
Protection Agency (EPA.) EPA must approve a waiver

[[Page 63585]]

unless it finds that California's determination that its standards will 
be ``* * *in the aggregate, at least as protective of public health and 
welfare as such Federal standards* * *'' to be arbitrary and 
capricious, California ``does not need such State standards to meet 
compelling and extraordinary conditions,'' or California's standards 
and accompanying enforcement procedures are not consistent with section 
202(a) of the Clean Air Act.
    Section 177 of the Clean Air Act authorizes other states to adopt 
and enforce California motor vehicle emission standards relating to the 
control of emissions if the standards are identical to California's for 
which a waiver has been granted and California and the state adopt such 
standards at least two years prior to the commencement of the model 
year to which the standards will apply.

D. What Is the History of the Massachusetts Low Emission Vehicle 
Program?

    In 1990, the Massachusetts Legislature enacted Chapter 410 of the 
Acts of 1990, which is codified at M.G.L. c. 111, Section 142K. This 
law mandates that the Massachusetts Department of Environmental 
Protection (DEP) adopt and implement California motor vehicle emission 
standards unless, after a public hearing, the DEP establishes, based on 
substantial evidence, that said emission standards and a compliance 
program similar to the State of California's will not achieve, in the 
aggregate, greater motor vehicle pollution reductions than the federal 
standards and compliance program for any such model year.
    In 1992, the DEP adopted the California LEV program by promulgating 
310 CMR 7.40, the Low Emission Vehicle Program regulation. The DEP 
submitted the Massachusetts LEV Program to the EPA as part of the 
Massachusetts SIP as one of a number of air pollution strategies and 
programs designed to meet the milestones of the Clean Air Act 
Amendments of 1990 and to attain and maintain the NAAQS for ozone. The 
implementation of the LEV Program has resulted in emission reductions 
from Massachusetts vehicles.
    In 1995, the Massachusetts regulation was amended to adopt the non-
methane organic gas (NMOG) fleetwide emission average and clarify 
certain sections of the regulation. In 1999, the regulation was further 
amended to adopt the next generation of California emission standards 
know as ``LEV II'' effective in model year 2004, the LEV I medium-duty 
standards effective in model year 2003, and also the smog index 
effective beginning with model year 2002.
    The 1992 version of the LEV program previously approved by EPA 
included ZEV requirements consistent with the requirements in the 
California program at that time. Since that time, California has made a 
number of changes to the ZEV requirements, and, subsequently, 
Massachusetts had made a number of revisions to the ZEV requirements in 
attempts to keep its program identical to California's. In light of the 
numerous changes regarding the ZEV requirement in Massachusetts, in its 
August 26, 2002 submittal to EPA, Massachusetts requested that we not 
take action on 310 CMR 7.40(2)(a)6, 310 CMR 7.40(2)(c)3, 310 CMR 
7.40(10), and 310 CMR 7.40(12). 310 CMR 7.40(2)(a)5, which establishes 
ZEV requirements for model year 2003 and beyond is the only portion of 
the Massachusetts ZEV program for which they have requested EPA 
approval. For the reasons articulated below, EPA is not taking action 
on section 310 CMR 7.40(2)(a)5 at this time. However, EPA is proposing 
to approve all other sections of the rule except for those specifically 
noted in the Commonwealth's August 26, 2002 submittal letter and 
section 310 CMR 7.40(2)(a)5.

E. What About the Zero Emission Vehicle Requirements?

    As discussed earlier in this document, States adopting the 
California LEV program must adopt a program which is identical to 
California's. The zero emission vehicle program has undergone several 
modifications through the years in California. And Massachusetts has 
made several changes to their ZEV program in attempts to ensure their 
program is consistent with California. In fact, the Commonwealth has 
made changes regarding ZEV requirements since the time they adopted the 
rule that is currently before EPA. Nevertheless, the Massachusetts LEV 
II program is designed to be a comprehensive program which will secure 
necessary emission reductions. Those emission reductions are a 
necessary part of the Massachusetts' attainment demonstration for the 
one-hour ozone NAAQS. For that reason, and since the emission 
reductions from the California program are controlled by the fleet 
average hydrocarbon curve and can be achieved without any specific ZEV 
sales mandates, we are proposing to approve all of the emissions 
reductions associated with the LEV II program and the Massachusetts 
rules adopted on December 24, 1999 without taking action on the ZEV 
portions of the program at this time. In the case of sections 310 CMR 
7.40(2)(a)6, 310 CMR 7.40(2)(c)3, 310 CMR 7.40(10), and 310 CMR 
7.40(12), EPA was not requested to take action. For section 310 CMR 
7.40(2)(a)5, which establishes ZEV requirements beginning in model year 
2003, EPA is not taking any action at this time but intends to do so in 
the future as the manufacturers' requirements for ZEVs in California, 
and Massachusetts, become clarified. EPA does believe that the ZEV 
mandate, which remains part of the Commonwealth's program, may result 
in advanced technology vehicles being introduced.

II. Proposed Action

    EPA is proposing to approve a SIP revision at the request of the 
Massachusetts DEP. This version of the rule was adopted on December 24, 
1999. It was submitted to EPA for approval on August 9, 2002. That 
submittal was later clarified to exclude certain sections of the rule 
from consideration on August 26, 2002. In addition, for the reasons 
articulated above, at this time we are not taking action on section 310 
CMR 7.40(2)(a)5 which includes ZEV requirements beginning in model year 
2003. As such we are proposing to approve all of the December 24, 1999 
version of 310 CMR 7.40, the ``Low Emission Vehicle Program'' except 
for 310 CMR 7.40(2)(a)5, 310 CMR 7.40(2)(a)6, 310 CMR 7.40(2)(c)3, 310 
CMR 7.40(10), and 310 CMR 7.40(12). This proposed approval would 
justify all of the emission reductions of the current California LEV 
standards for light and medium duty vehicles. The regulations adopted 
by Massachusetts now include the California LEV II light-duty motor 
vehicle emission standards effective in model year 2004, the California 
LEV I medium-duty standards effective in model year 2003, and the smog 
index label specification effective model year 2002. EPA is proposing 
to approve Massachusetts' low emission vehicle program requirements 
into the SIP because EPA has found that the requirements are necessary 
for Massachusetts to achieve the NAAQS for ozone and to reduce 
emissions of VOC and NOX from new vehicles in accordance 
with the requirements of the CAA.
    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this document.

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III. What Are the 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks''(62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the 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. 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.)

List of Subjects in 40 CFR Part 52

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

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

    Dated: October 4, 2002.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. 02-26173 Filed 10-11-02; 8:45 am]
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