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Section 185 Equivalency Demonstration

The following is the content of a letter sent to the Regional Administrator at the USEPA, Region 2, Judith A. Enck. The letter was signed on January 31, 2014 by Joseph J. Martens, Commissioner.

As you are aware, the New York-Northern New Jersey-Long Island, NY-NJ-CT severe nonattainment area failed to attain the 1990 1-hour ozone National Ambient Air Quality Standard (NAAQS) of 0.12 parts per million by the November 15, 2007 deadline. On June 16, 2011, DEC petitioned EPA to make a binding determination that the New York metropolitan area (NYMA) attained the 1-hour ozone NAAQS. EPA's determination that the area has met the NAAQS based on 2008-2010 monitoring data was effective on July 18, 2012.1 As a result of not attaining the 1-hour ozone NAAQS until 2010, the provisions of Clean Air Act (CAA) Section 185 are applicable for the years 2008 and 2009. This letter will serve to satisfy this obligation following the completion of the associated public comment period. DEC will notify EPA when this comment period has concluded and, at that time, will address any comments received.

EPA issued guidance for the Section 185 fee program on January 5, 2010.2 The July 1, 2011 decision by the U.S. Circuit Court of Appeals in Natural Resources Defense Council v. EPA vacated this guidance, but left open the possibility of using alternative programs to fulfill the Section 185 provisions, provided that these programs are specific to the 1-hour ozone NAAQS. Recently, EPA has allowed the use of alternative programs to fulfill CAA Section 185 requirements, consistent with this decision and the anti-backsliding principles of CAA Section 172(e).3 Alternative programs must be shown to be "not less stringent" than the mandated program.

Consequently, DEC requests that EPA determine that a revision to the State's Low Emission Vehicle (LEV) program, LEV II, is an equivalent alternative program that satisfies the CAA Section 185 requirement for the New York State portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area pursuant to Sections 172(e) and 172(c)(8) of the CAA. The LEV II revision was adopted in 2000 (with additional revisions in 2002) under Title 6 of the New York Codes, Rules, and Regulations (6 NYCRR) Part 218, "Emission Standards for Motor Vehicles and Motor Vehicle Engines," to maintain consistency with California standards. LEV II was not previously included in the attainment SIP for the 1-hour ozone NAAQS. It was fully phased-in as of the 2007 model year and features more stringent exhaust emission standards than LEV and has resulted in emission reductions in excess of what would have resulted from the implementation of CAA Section 185.

CAA Section 185 is a control program (as decided by the U.S. Circuit Court of Appeals in South Coast Air Quality Management District v. EPA) that requires that penalty fees be paid on excess emissions of oxides of nitrogen (NOx) and volatile organic compounds (VOCs) from major stationary sources within the NY-NJ-CT nonattainment area for years 2008 and 2009. CAA Section 185 establishes that penalty fees are to be paid on emissions in excess of 80 percent of the baseline amount; the baseline is represented by the actual NOx or VOC emissions from the target attainment year. EPA later released guidance that allowed for an alternative baseline of the lowest two-year average over a five year period, to account for variability in emissions.4

DEC calculated the excess 2008 and 2009 emissions using both approaches and determined that the former approach-utilizing a 2007 baseline-would be used in this analysis as it produced the more conservative result (i.e., a higher emission reduction target). Enclosed are tables summarizing the 2007 baseline calculations for NOx and VOC, which demonstrate the emissions in the New York State portion of the metropolitan area subject to CAA Section 185 fees: 8.7 tons per day of NOx and 2.2 tons per day of VOCs in 2008, and 4.5 tons per day of NOx and 1.4 tons per day of VOCs in 2009. (Note that more complete tables, which also demonstrate the alternative baseline calculations, are being electronically submitted to the appropriate EPA staff.) A conservative assumption is that the magnitude of the fees would have the likely result of eliminating these emissions.

On October 4, 2010, DEC submitted to EPA a supplemental Reasonable Further Progress (RFP) demonstration for the New York State portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area for the 1997 8-hour ozone NAAQS.5 This RFP demonstration showed continuing progress toward attainment of the 8-hour standard from adopted control measures. A series of MOBILE6 modeling runs were conducted as part of this RFP demonstration to quantify the emissions reductions of NOx and VOCs from LEV II in future years. For the 2008 projection year, LEV II was expected to reduce NOx and VOC emissions by 18.9 and 2.5 tons per ozone season day, respectively. Interpolating between the 2008 and 2011 projection years yielded expected 2009 LEV II NOx and VOC emission reductions of 26.4 and 3.5 tons per ozone season day, respectively. A conservative seasonal adjustment factor of 1.15 was used to convert these reductions from an ozone season day basis (where emission reductions would be greater) to a form representative of the entire year. The results were 2008 reductions of 17.5 and 2.3 tons per day for NOx and VOC, and 2009 reductions of 24.4 and 3.2 tons per day for NOx and VOC, respectively.

The table below summarizes the emission reductions discussed in this letter. The modeled emission reductions attributable to the LEV II program in 2008 and 2009 each exceeded the target reductions from CAA Section 185. DEC, therefore, requests that EPA make a determination that the LEV II program is equivalent to CAA Section 185 in the New York metropolitan nonattainment area, consistent with the principles of CAA Section 172(e).

Type of Emission Reductions Emission Reductions (tons per day)
2008 CAA Sec. 185 Target 8.7 2.2
2008 LEV II Projection 17.5 2.3
2009 CAA Sec. 185 Target 4.5 1.4
2009 LEV II Projection 24.4 3.2

New York State continues to pursue clean air and has adopted many other programs to reduce ozone pollution. In addition to the LEV II reductions, many other control programs for NOx and VOCs have been promulgated or revised in recent years to assist in attaining the 1997 and 2008 8-hour ozone NAAQS. The next ozone NAAQS revision, currently scheduled to be proposed in 2014, may require further emission reductions.

DEC recently completed emissions projections for the New York metropolitan area as part of its PM2.5 Redesignation Request and Maintenance Plan (submitted to EPA on June 27, 2013) that predict significant reductions of NOx and VOCs between 2007 and 2025: 42.2 percent and 32.4 percent, respectively.6 Recent updates to several State regulations account for a portion of the projected emission reductions. Chief among these are updates to 6 NYCRR Subpart 227-2, which requires Reasonably Available Control Technology (RACT) for major combustion sources, and to a number of regulations that control VOC emissions from various area source categories (e.g., architectural and industrial maintenance coatings, consumer products, graphic arts, surface coating processes, and adhesives, sealers, and primers).

DEC has estimated that the Subpart 227-2 revisions, which strengthen NOx limits on 766 boilers and 55 combined cycle combustion turbines beginning in 2014, will result in Statewide reductions of approximately 28,800 tons of NOx per year, or 78.9 tons per day, from 2007. According to the October 2010 RFP demonstration, New York's area source VOC regulations-many of which had updated standards go into effect in 2010-resulted in a reduction of 113.1 tons of VOC per ozone season day in the New York metropolitan area in 2012. Additionally, periodically strengthened automobile emission standards and continuous vehicle turnover greatly benefit Statewide air quality, particularly in urban areas. These efforts, combined with other state and federal control programs, help assure the continued attainment of the 1-hour ozone NAAQS, and will also assist with reaching compliance with current and future 8-hour standards.

If you have any questions regarding this request, please contact David Shaw, Director of the Division of Air Resources, at (518) 402-8452.


1 77 FR 36163, Determinations of Failure to Attain the One-Hour Ozone Standard by 2007, Current Attainment of the One-Hour Ozone Standard, and Attainment of the 1997 Eight-Hour Ozone Standards for the New York-Northern New Jersey-Long Island Nonattainment Area in Connecticut, New Jersey and New York
2 "Guidance on Developing Fee Programs required by Clean Air Act Section 185 for the 1 Hour Ozone NAAQS"
3 77 FR 50021, Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District
4 EPA Memorandum from William T. Harnett, Director, Air Quality Policy Division to Regional Air Division Directors, "Guidance on Establishing Emissions Baselines under Section 185 of the Clean Air Act(CAA) for Severe and Extreme Ozone Nonattainment Areas that Fail to Attain the one-hour Ozone NAAQS by their Attainment Date," March 21, 2008
5 Via e-mail from Robert Bielawa, DEC to Raymond Ford, EPA Region 2
6 Note that these projections include the entirety of Orange County, whereas only a seven-town portion of Orange County was designated as part of the one-hour ozone nonattainment area.

More about Section 185 Equivalency Demonstration:

  • Follow Up Submission Section 185 Equivalency Demonstration - On January 31, 2014, the NYSDEC submitted a letter to EPA proposing an equivalent alternative to the fee collection requirements of Clean Air Act Section 185. DEC recently completed a public comment period on this proposal. One comment was received, which supported DEC's use of LEV II as an alternative program for Section 185.