[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Proposed Rules]
[Pages 62771-62774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26475]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2017-0094; FRL-9987-49-Region 2]


Approval and Promulgation of Implementation Plans: New York Ozone 
Section 185

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State of New York's Low Emissions Vehicle program as an 
alternative program to fulfill the Clean Air Act Section 185 
requirement for the New York portion of the New York-Northern New 
Jersey-Long Island, NY-NJ-CT nonattainment area for the revoked 1979 1-
hour ozone National Ambient Air Quality Standard. Clean Air Act Section 
185 requires fees to be paid, per ton of emissions, by major sources 
located in ozone nonattainment areas classified as Severe or Extreme 
that have failed to attain the National Ambient Air Quality Standard by 
the required attainment date. The EPA is proposing to find that New 
York's Low Emissions Vehicle program is no less stringent than a Clean 
Air Act Section 185 fee program because the emissions reductions 
achieved by the Low Emissions Vehicle program are at least equivalent 
to reductions associated with a 185 fee program.

DATES: Comments must be received on or before January 7, 2019.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2017-0094 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information or 
other information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Gavin Lau, Environmental Protection 
Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-
3708, or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. What Action is the EPA proposing?
II. What is the background for the proposed action?
III. What did New York Submit?
IV. What is New York's alternative to the Clean Air Act Section 185 
fee program?
V. What is the EPA's analysis of the alternative to Clean Air Act 
Section 185 fee program?
VI. What action is the EPA taking?
VII. Statutory and Executive Order Reviews

I. What Action is the EPA proposing?

    The EPA is proposing to approve into the State of New York's State 
Implementation Plan (SIP) the use of an alternative program to fulfill 
the requirements of Clean Air Act (CAA) Section 185 for the New York 
(NY) portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT 
(NY-NJ-CT) nonattainment area for the 1979 1-hour ozone National 
Ambient Air Quality Standard (NAAQS). NY's Low Emissions Vehicle 
program (LEV) was updated and adopted as LEV II in 2000 and further 
revised in 2002. The LEV II program was fully phased in as of the 2007 
vehicle model year and resulted in excess emissions reductions. The EPA 
is proposing to approve the LEV II program as an equivalent alternative 
program no less stringent than the program required by CAA Section 185 
consistent with the principles of CAA Section 172(e).

II. What is the background for the proposed action?

1979 1-Hour Ozone NAAQS

    The 1-hour ozone standard designations were established by the EPA 
following the CAA Amendments in 1990. Each area of the country that was 
designated as nonattainment for the 1-hour ozone NAAQS was classified 
by operation of law as marginal, moderate, serious, severe, or extreme 
depending on the severity of the area's 1-hour ozone air quality 
problem.\1\ The 1-hour ozone NAAQS was set at 0.12 parts per million 
(ppm). The NY-NJ-CT area was designated as nonattainment and classified 
as severe-17 with an attainment date of November 15, 2007. The 1-hour 
NY-NJ-CT area is composed of: Bergen, Essex, Hudson, Hunterdon,

[[Page 62772]]

Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, and 
Union Counties in New Jersey; Bronx, Kings, Nassau, New York, Queens, 
Richmond, Rockland, Suffolk, Westchester, and part of Orange County in 
New York; and parts of Fairfield and Litchfield Counties in 
Connecticut.
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    \1\ See Clean Air Act sections 107(d)(C) and 181(a).
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    The EPA revoked the 1-hour ozone standard effective June 15, 2005 
(69 FR 23951). The EPA still determines whether an area has attained 
the 1-hour ozone NAAQS by its applicable deadline if it relates to 
effectuating anti-backsliding requirements that have been specifically 
retained.
    In a June 18, 2012 rulemaking, the EPA determined that the NY-NJ-CT 
1-hour ozone nonattainment area failed to attain the 1-hour ozone NAAQS 
by its applicable attainment deadline of November 15, 2007, based on 
complete, quality assured and certified ozone monitoring data for 2005-
2007. See 77 FR 36163 (June 19, 2012). This determination of failure to 
attain by the NY-NJ-CT attainment date, triggered the provisions of CAA 
Section 185. In the determination of failure to attain by the NY-NJ-CT 
attainment date, the EPA indicated that it would address CAA Section 
185 fee programs in a future rulemaking.
    In the same June 18, 2012 rulemaking, the EPA determined that the 
NY-NJ-CT 1-hour ozone nonattainment area attained the 1-hour ozone 
NAAQS based on complete, quality assured, and certified monitoring data 
for 2008-2010 (77 FR 36163). Current complete, quality assured, and 
certified monitoring data for the most recent time period of 2015-2017 
continues to show that the NY-NJ-CT area continues to attain the 1-hour 
ozone NAAQS.

Clean Air Act Section 185

    CAA Section 185 fee program requirements apply to ozone 
nonattainment areas classified as Severe or Extreme that fail to attain 
by the required attainment date. CAA Section 185 requires each major 
stationary source of volatile organic compounds (VOC) located in an 
area that fails to attain by its attainment date to pay a fee to the 
state, for each calendar year following the attainment year, for each 
ton it emits in excess of 80 percent of the baseline amount. CAA 
Section 182(f) extends the application of this provision to major 
stationary sources of oxides of nitrogen (NOX). In 1990, the 
CAA set the fee as $5,000 per ton of VOC and NOX emitted, 
which is adjusted for inflation, based on the Consumer Price Index, on 
an annual basis.

Applicability of CAA Section 185 to the NY-NJ-CT area

    As discussed above, the NY-NJ-CT 1-hour ozone nonattainment area 
failed to attain the 1-hour ozone NAAQS by its attainment date of 
November 15, 2007 (77 FR 36163). As a result, the requirements of CAA 
Section 185 are applicable to the area, starting in calendar year 2008. 
The NY-NJ-CT area was determined to attain the 1-hour ozone NAAQS for 
2008-2010 (77 FR 36163).

CAA Section 185 Equivalent Alternative Programs

    CAA Section 172(e) provides that when the Administrator relaxes a 
NAAQS, the EPA must ensure that all areas which have not attained that 
NAAQS maintain ``controls which are not less stringent than the 
controls applicable to areas designated nonattainment before such 
relaxation.'' Although Section 172(e) does not apply directly to 
supplanting one NAAQS with a stronger standard, the EPA has applied the 
principles of CAA Section 172(e) following revocation of ozone 
standards. The EPA interprets the principles of 172(e) as authorizing 
the Administrator to approve on a case-by-case basis and through 
rulemaking to accept alternatives to the applicable CAA Section 185 fee 
programs associated with a revoked ozone NAAQS that are ``not less 
stringent.'' See generally 80 FR 12264, 12306 (March 6, 2015).
    The EPA notes that it has previously approved alternative programs 
as not less stringent than the requirements of CAA Section 185 fee 
programs, consistent with the principles of CAA Section 172(e). See, 
e.g., 77 FR 50021 (August 20, 2012) (CAA Section 185 alternative for 
the San Joaquin Valley Unified Air Pollution Control District); 77 FR 
74372 (December 14, 2012) (CAA Section 185 alternative for the South 
Coast Air Quality Management District); see also Natural Res. Def. 
Council v. EPA, 779 F.3d 1119 (9th Cir. 2015) (denying petition to 
review the approval of alternative programs ``[b]ecause EPA reasonably 
interpreted CAA Sec.  172(e) to give it authority to approve programs 
that are alternative to, but not less stringent than, Sec.  185 fee 
programs, EPA's approval of . . . such an alternative program, after 
reasoned consideration and notice and comment procedure regarding [the 
rule's] stringency and approach to fee collecting, was proper.'').
    Consistent with the principles of CAA Section 172(e), a state can 
meet the 1-hour ozone Section 185 obligation through either the fee 
program prescribed in Section 185 of the CAA or an equivalent 
alternative program, if the state demonstrates that the alternative is 
not less stringent than the otherwise applicable Section 185 fee 
program and the EPA approves such demonstration after notice and 
comment rulemaking. In this action, the EPA is proposing that the State 
of New York's Low Emission Vehicle program (LEV II) constitutes an 
approvable alternative CAA Section 185 fee program and invites public 
comment on this determination.

III. What did New York submit?

    On January 31, 2014, the New York State Department of Environmental 
Conservation (NYSDEC) submitted a request on behalf of the State of New 
York to the EPA to determine that the State's LEV II program is an 
equivalent alternate program to the program required under CAA Section 
185. On April 7, 2014, NYSDEC submitted a letter to the EPA which 
included the State's Environmental Notice Bulletin and public comment 
received on the State's CAA Section 185 submission to the EPA. NYSDEC's 
submissions included demonstrations of emissions reductions associated 
with NY's LEV II program, calculation of reductions needed to fulfill 
the requirements of CAA Section 185, examples of additional VOC and 
NOX control measures, a copy of the public notice, and the 
supportive comment that was received during the state's public 
participation process. On October 13, 2016, NYSDEC submitted a letter 
to the EPA providing additional details clarifying LEV II reductions. 
On April 3, 2018, NYSDEC submitted additional information to the EPA 
which included an analysis of actual and allowable emissions for 
facilities located in the NY portion of the NY-NJ-CT 1-hour ozone 
nonattainment area to support the use of actual emissions for baseline 
calculations.

IV. What is New York's alternative to the Clean Air Act Section 185 fee 
program?

    NYSDEC submitted a request to the EPA to determine that its LEV II 
program is an alternative program which satisfies the requirements of 
CAA Section 185. The CAA Section 185 fee program requires a fee per ton 
of VOC and NOX emissions, in the NY-NJ-CT 1-hour ozone 
nonattainment area, in excess of 80% the baseline amount. NYSDEC 
examined actual and allowable emissions from major sources of VOC and 
NOX for 2007 and determined that the actual emissions were 
lower than the allowable emissions. In accordance

[[Page 62773]]

with the methodology required under CAA Section 185(b)(2) for computing 
a baseline amount, NYSDEC then compared the actual 2008 and 2009 
emissions of VOC and NOX for each major source to 80% of its 
2007 emissions. For sources that emitted greater than 80% of their 
emissions for 2007, NYSDEC calculated its corresponding excess 
emissions for 2008 and 2009. For 2008 and 2009, VOC and NOX 
excess emissions for major sources were totaled and daily excess 
emissions per day were calculated. The amount of emissions from the NY 
State portion of the NY-NJ-CT area subject to the CAA Section 185 fee 
program was determined to be for 2008: 2.2 tons per day (tpd) of VOC 
and 8.7 tpd of NOX; and for 2009: 1.4 tpd of VOC and 4.5 tpd 
of NOX. As an alternative to the CAA Section 185 fee program 
requirement, NYSDEC requested that the EPA find that its LEV II program 
provided excess emissions reductions greater than 80% of the 2007 
baseline for 2008 and 2009.
    New York adopted LEV II new vehicle emission standards, identical 
to those of California LEV II, in Title 6 of the New York Codes, Rules 
and Regulations (6 NYCRR) Part 218, ``Emission Standards for Motor 
Vehicles and Motor Vehicle Engines.'' LEV II exhaust emissions 
standards were fully phased in by the 2007 model year and provided 
additional reductions from previous LEV standards. NYSDEC had 
previously submitted to the EPA a supplemental Reasonable Further 
Progress Plan (RFP) and 2008 projection year emissions inventory, which 
included VOC and NOX projections, as part of the attainment 
demonstration for the New York State Implementation Plan for ozone. The 
EPA subsequently approved the RFP and 2008 projection year emissions 
inventory. See 76 FR 51264 (August 18, 2011). The RFP control measures 
for the 2008 projection year inventory resulted in surplus reductions 
of 3.94 tpd of VOC and 81.8 tpd of NOX. LEV II was part of 
2008 projection year surplus and was expected to reduce VOC by 2.5 tons 
per ozone season day and reduce NOX by 18.9 tons per ozone 
season day. New York identified that LEV II could be used for an 
equivalent alternate program to meet the requirements of CAA Section 
185 since the reductions were part of the RFP surplus emissions 
reductions.
    In order to make the LEV II ozone season day reductions 
representative of an entire year, NYSDEC applied a seasonal adjustment 
factor based on recommendations from the New York State Department of 
Transportation (NYSDOT). NYSDEC chose a seasonal adjustment factor that 
was more conservative than the NYSDOT recommendation for urban areas 
like the New York City area to assure that sufficient reductions were 
achieved. In applying a seasonal adjustment factor, LEV II attributable 
reductions of VOC and NOX were 2.3 tpd and 17.5 tpd, 
respectively, for all of 2008. Interpolating between 2008 and 2011 
projections included in the RFP yielded seasonally adjusted LEV II 
attributable reductions of VOC and NOX of 3.2 tpd and 24.4 
tpd, respectively, for all of 2009. Additional details regarding 
seasonal adjustment of emissions reductions can be found in the 
Technical Support Document.
    New York's LEV II emission standards continue to be in place under 
6 NYCRR Part 218 and continue to achieve reductions in VOC and 
NOX emissions. EPA performed an analysis to verify that LEV 
II continued to achieve emissions reduction through 2017. The emissions 
reductions attributable to LEV II in the NY state portion of the NY-NJ-
CT area for 2017 were 1,321 tons of NOX and 558 tons of 
VOCs. Details regarding 2017 LEV II emissions reduction can be found in 
the Technical Support Document.

V. What is the EPA's analysis of the alternative to Clean Air Act 
Section 185 fee program?

    For an alternative to CAA Section 185 fee program to be approvable, 
a state must provide a demonstration that the proposed alternative 
program is no less stringent than the application of CAA Section 185. 
EPA has previously stated that one way to demonstrate this is to show 
that the alternative program provides equivalent or greater fees and/or 
emissions reductions directly attributable to the application of CAA 
Section 185 \2\. The state's demonstration should also not 
underestimate the expected fees and/or emissions reduction from the CAA 
Section 185 fee program nor overestimate the expected fees and/or 
emissions reductions associated with the proposed alternative program. 
In principle, the alternative program must encourage 1-hour ozone NAAQS 
nonattainment areas to reach attainment as effectively and 
expeditiously as a CAA Section 185 program. The EPA has previously 
approved CAA Section 185 alternative programs for the San Joaquin 
Valley Unified Air Pollution Control District (77 FR 50021) and the 
South Coast Air Quality Management District (77 FR 74372) (upheld in 
Natural Res. Def. Council v. EPA, 779 F.3d 1119 (9th Cir. 2015)).
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    \2\ The EPA initially explained this position in a January 2010 
Guidance document. Memorandum from Stephen D. Page, Director, Office 
of Air Quality Planning and Standards, to Regional Air Division 
Directors, ``Guidance on Developing Fee Programs Required by Clean 
Air Act Section 185 for the 1-hour Ozone NAAQS,'' dated January 5, 
2010 (January 2010 guidance). The D.C. Circuit Court of Appeals 
vacated the January 2010 guidance on procedural grounds, but the 
Court did not prohibit alternative programs, stating that ``neither 
the statute nor our case law obviously precludes that alternative.'' 
NRDC v. EPA, 643 F.3d 322 (D.C. Cir. July 2011).
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    The EPA is proposing to determine that NY demonstrated that the 
emissions reductions from LEV II were at least as significant as those 
that would have been gained from direct application of CAA Section 185 
fees. The surplus RFP LEV II projected emissions reductions for 2008 
VOC and NOX were 2.3 tpd and 17.5 tpd. The 2008 CAA Section 
185 emissions reductions targets, calculated as amount in excess of 80% 
of the 2007 baseline, for VOC and NOX were 2.2 tpd and 8.7 
tpd. LEV II projected emissions reductions for 2009 VOC and 
NOX were 3.2 tpd and 24.4 tpd. The 2009 CAA Section 185 
emissions reductions targets for VOC and NOX were 1.4 tpd 
and 4.5 tpd. For 2008 and 2009, the LEV II emissions reduction were 
greater than the CAA Section 185 targets for both VOC and 
NOX. Table 1 below shows the emissions targets and LEV II 
emission reductions. Since the amount of LEV II attributable emissions 
reductions is not less stringent than the emissions in excess of 80% of 
the 2007 baseline, the alternative program is consistent with the anti-
backsliding provisions of CAA Section 172(e). LEV II has continued to 
achieve emissions reductions through 2017.

[[Page 62774]]



                                 Table 1
------------------------------------------------------------------------
                                           Emissions reduction (tons per
                                                       day)
           Emission reduction            -------------------------------
                                                NOX             VOC
------------------------------------------------------------------------
2008 CAA Section 185 Target.............             8.7             2.2
2008 LEV II Projection..................            17.5             2.3
LEV II emissions reduction greater than              Yes             Yes
 2008 target?...........................
2009 CAA Section 185 Target.............             4.5             1.4
2009 LEV II Projection..................            24.4             3.2
LEV II emissions reduction greater than              Yes             Yes
 2009 target?...........................
------------------------------------------------------------------------

    LEV II was not included as a control measure relied on in the 1-
hour Ozone Attainment SIP, including Rate of Progress and RFP for the 
NY-NJ-CT 1-hour ozone area (67 FR 5170 (February 4, 2002)). LEV was 
included in the Ozone Attainment Demonstration SIP, but emissions 
reductions attributable to the LEV II program were not. Projected 
emissions reductions by control strategy provided by NYSDEC included 
specific reductions for each control measure including LEV II. 
Emissions reductions attributable to LEV II are surplus, were not 
previously accounted for and do not interfere with other applicable 
requirements concerning attainment, Rate of Progress, and RFP.
    In this action, EPA is proposing that the LEV II program is an 
acceptable alternative program to the 185 fee program consistent with 
the anti-backsliding provisions of CAA Section 172(e) because it 
achieves greater emissions reductions than application of the 185 fee 
program. The principles of Section 172(e) require controls in 
nonattainment areas that are not less stringent than those that were 
applied to an area before EPA revoked the one-hour NAAQS.

VI. What action is EPA taking?

    EPA is proposing to approve NY's LEV II program as an alternative 
program to the requirements of CAA Section 185. The EPA proposes to 
find the LEV II program achieves sufficient reductions to fulfill the 
requirements of CAA Section 172(e) and 185 for the NY portion of the 
NY-NJ-CT 1-hour ozone nonattainment area. The LEV II program will be 
incorporated into the federally enforceable SIP as an alternative CAA 
Section 185 program if EPA finalizes this action.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 7, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the proposed rulemaking action is not approved to 
apply on any Indian reservation land or in any other area where the EPA 
or an Indian tribe has demonstrated that a tribe has jurisdiction. In 
those areas of Indian country, the proposed rulemaking action does not 
have tribal implications and will not impose substantial direct costs 
on tribal governments or preempt tribal law as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

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

    Dated: November 19, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.
[FR Doc. 2018-26475 Filed 12-4-18; 8:45 am]
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