[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
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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
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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?...........................
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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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