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California State Motor Vehicle Pollution Control Standards; California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete Vehicle Regulations; Notice of Decision




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American Government

California State Motor Vehicle Pollution Control Standards; California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete Vehicle Regulations; Notice of Decision

Gina McCarthy
November 17, 2010

[Federal Register: November 17, 2010 (Volume 75, Number 221)]
[Notices]               
[Page 70237-70241]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no10-80]                         

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9228-3]

 
California State Motor Vehicle Pollution Control Standards; 
California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete 
Vehicle Regulations; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision Granting a Waiver of California's Heavy-Duty 
On-Highway Otto-Cycle Engines and Incomplete Vehicle Regulations.

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SUMMARY: The Environmental Protection Agency (EPA), pursuant to section 
209(b) of the Clean Air Act (Act), is granting California its request 
for a waiver of Clean Air Act preemption for three sets of amendments 
applicable to its heavy-duty Otto-cycle engines and incomplete vehicle 
regulations for the 2004, 2005 through 2007, and 2008 and subsequent 
model year regulations. These amendments align each of California's 
exhaust emission standards and test procedures with its federal 
counterpart in an effort to streamline and harmonize the California and 
federal programs.

ADDRESSES: Materials relevant to this decision are contained in Docket 
ID No. EPA-HQ-OAR-2006-0018. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the Air and Radiation Docket in the EPA Headquarters 
Library, EPA West Building, Room 3334, located at 1301 Constitution 
Avenue, NW., Washington, DC. The Public Reading Room is open to the 
public on all federal government work days from 8:30 a.m. to 4:30 p.m.; 
generally, it is open Monday through Friday, excluding holidays. The 
telephone number for the Reading Room is (202) 566-1744. The Air and 
Radiation Docket and Information Center's Web site is http://
www.epa.gov/oar/docket.html. The electronic mail (e-mail) address for 
the Air and Radiation Docket is: a-and-r-Docket@epa.gov, the telephone 
number is (202) 566-1742, and the fax number is (202) 566-9744. An 
electronic version of the public docket is available through the 
federal government's electronic public docket and comment system. You 
may access EPA dockets at http://www.regulations.gov. After opening the 
http://www.regulations.gov Web site, enter EPA-HQ-OAR-2006-0018 in the 
``Enter Keyword or ID'' fill-in box to view documents in the record of 
CARB's amendments to its heavy-duty Otto-cycle engines and incomplete 
vehicle regulations. Although a part of the official docket, the public 
docket does not include Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality also maintains a Web 
page that contains general information on its review of California 
waiver requests. Included on that page are links to several of the 
prior waiver Federal Register notices which are cited throughout 
today's notice; the page can be accessed at http://www.epa.gov/otaq/
cafr.htm.

[[Page 70238]]


FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division, U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: 
(202) 343-9256. Fax: (202) 343-2800. E-mail: dickinson.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. CARB's 2000 and 2002 Amendments

    On December 7, 2005, the California Air Resources Board (``CARB'') 
submitted a request to the Environmental Protection Agency (``EPA'') 
for confirmation that CARB's amendments, adopted in 2000 and 2002, to 
the California heavy-duty Otto-cycle regulations for 2004, 2005-2007, 
and 2008 and subsequent model years (MYs) are within-the-scope of 
previously granted waivers of preemption under section 209(b) of the 
Act, 42 U.S.C. 7543(b). On June 15, 2006, CARB supplemented its 
original request of December 7, 2005, with a letter adding to its 
rationale and additionally requesting, in the alternative, for EPA to 
consider the request as a new waiver of preemption under section 209(b) 
of the Act.
    EPA first granted waivers for the alignment of California's heavy-
duty engine and vehicle emission standards and test procedures in 1988, 
separately for the diesel engine standards and the gasoline engine 
standards.\1\ Since the 1988 waivers, CARB has requested and received 
confirmation that various amendments to the standards and test 
procedures for the current CARB categories of heavy-duty vehicles are 
within-the-scope of the previously granted waivers. Significant among 
these, in 1997 CARB requested a within-the-scope determination for a 
revision to its heavy-duty engine emission standards for NOX 
and PM for both diesel and Otto-cycle (gasoline) engines applicable in 
the 1998 and subsequent model years.\2\ EPA approved the request on 
October 6, 2004.\3\
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    \1\ 52 FR 20777 (June 3, 1987), 53 FR 7021 (March 4, 1988).
    \2\ 53 FR 6197 (March 1, 1988) (Diesel) and 53 FR 7022 (March 4, 
1988) (Otto-cycle).
    \3\ 69 FR 59920 (October 6, 2004).
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    CARB's current request concerns its amendments to the exhaust 
emission standards for heavy-duty Otto-cycle engines and vehicles above 
8,500 pounds gross vehicle weight rating (GVWR) for the 2004, 2005 
through 2007, and the 2008 and subsequent MYs. California amended its 
heavy-duty Otto-cycle regulations through two separate CARB 
rulemakings: one in 2000 (hereinafter the ``2000 amendments'') and the 
other in 2002 (hereinafter the ``2002 amendments'').\4\ Both 
rulemakings followed EPA rulemakings increasing the stringency of 
federal emission standards, which surpassed the stringency of 
California's previous requirements for 2005 and all subsequent model 
years. Therefore, CARB believes its effort to harmonize standards with 
the federal heavy-duty Otto-cycle engine standards allows manufacturers 
to make one vehicle to meet both California and federal standards and 
participate in the federal averaging, banking, and trading program 
without compromising the stringency or efficacy of its emission 
standards.\5\
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    \4\ The 2004/5 Standards were formally adopted December 27, 
2000, by Executive Order G-00-069 (CARB, Item 7). The 2008 Standards 
were formally adopted December 12, 2002, by Executive Order G-03-016 
issued September 5, 2003. (CARB, Item 20).
    \5\ California Air Resources Board Request for Confirmation that 
Amendments Are Within the Scope of Previous Waivers of Preemption 
Under Clean Air Act Section 209(b), December 7, 2005, pg. 2.
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    CARB's 2000 and 2002 amendments affect the heavy-duty Otto-cycle 
standards for oxides of nitrogen (NOX), non-methane 
hydrocarbons plus oxides of nitrogen (NMHC+NOX), and carbon 
monoxide (CO). Specifically, the amendments: (1) Harmonize the 
California and federal MY 2005 and beyond NOX standards at 
1.0 grams per brake horsepower-hour (g/bhp-hr); (2) align the 
California and federal standards for 0.14 g/bhp-hr for NMHC, 0.20 g/
bhp-hr for NOX, 14.4 g/bhp-hr for CO; and (3) create a new 
0.01 g/bhp-hr standard for particulate matter (PM). These changes amend 
title 13, California Code of Regulations (CCR), section 1956.8 \6\ and 
the incorporated amended ``California Exhaust Emission Standards and 
Test Procedures for 1987 through 2003 Model Heavy-Duty Otto-cycle 
Engines and Vehicles,'' and the adoption and the amendments to the 
incorporated in ``California Exhaust Emission Standards and Test 
Procedures for 2004 and Subsequent Model Heavy-Duty Otto-cycle 
Engines.''
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    \6\ See California Air Resources Board Request for Confirmation 
that Amendments Are Within the Scope of Previous Waivers of 
Preemption Under Clean Air Act Section 209(b), December 7, 2005, pg. 
2.
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B. Clean Air Act Waivers of Preemption

    Section 209(a) of the Act preempts states and local governments 
from setting emission standards for new motor vehicles and engines; it 
provides:

    No State or any political subdivision thereof shall adopt or 
attempt to enforce any standard relating to the control of emissions 
from new motor vehicles or new motor vehicle engines subject to this 
part. No state shall require certification, inspection or any other 
approval relating to the control of emissions from any new motor 
vehicle or new motor vehicle engine as condition precedent to the 
initial retail sale, titling (if any), or registration of such motor 
vehicle, motor vehicle engine, or equipment.

Through operation of section 209(b) of the Act, California is able to 
seek and receive a waiver of section 209(a)'s preemption. If certain 
criteria are met, section 209(b) (1) of the Act requires the 
Administrator, after notice and opportunity for public hearing, to 
waive application of the prohibitions of section 209(a). Section 209(b) 
(1) only allows a waiver to be granted for a State that had adopted 
standards (other than crankcase emission standards) for the control of 
emissions from new motor vehicles or new motor vehicle engines prior to 
March 30, 1966, if the State determines that its standards will be, in 
the aggregate, at least as protective of public health and welfare as 
applicable Federal standards (this is known as California's 
``protectiveness determination''). Because California was the only 
state to have adopted standards prior to 1966, it is the only state 
that is qualified to seek and receive a waiver.\7\ The Administrator 
must grant a waiver unless she finds that: (A) California's above-noted 
``protectiveness determination'' is arbitrary and capricious; \8\ (B) 
California does not need such State standards to meet compelling and 
extraordinary conditions; \9\ or (C) California's standards and 
accompanying enforcement procedures are not consistent with section 
202(a) of the Act.\10\ Regarding consistency with section 202(a), EPA 
reviews California's standards for technological feasibility and 
evaluates testing and enforcement procedures to determine whether they 
would be inconsistent with federal test procedures (e.g., if 
manufacturers would be unable to meet both California and federal test 
requirements using the same test vehicle).\11\
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    \7\ See S.Rep. No. 90-403 at 632 (1967).
    \8\ CAA section 209(b)(1)(A).
    \9\ CAA section 209(b)(1)(B).
    \10\ CAA section 209(b)(1)(C).
    \11\ See, e.g., 74 FR at 32767 (July 8, 2009); see also Motor 
and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095, 1126 (DC Cir. 1979).
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    If California amends regulations that were previously granted a 
waiver of preemption, EPA can confirm that the amended regulations are 
within-the-scope of the previously granted waiver when three conditions 
are met. First, the amended regulations must not undermine California's 
determination that its standards, in the aggregate, are

[[Page 70239]]

as protective of public health and welfare as applicable federal 
standards. Second, the amended regulations must not affect consistency 
with section 202(a) of the Act. Third, the amended regulations must not 
raise any ``new issues'' affecting EPA's prior waivers. CARB, in its 
Resolutions 00-45 and 02-31, expressly found that its amendments met 
each of these criteria.\12\
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    \12\ CARB -determinations affirmed in Executive Orders G-00-069 
and G-03-016.
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C. EPA's Consideration of CARB's Request

    Because EPA believed it possible that CARB's amendments did in fact 
raise ``new issues'' through the imposition of more stringent standards 
for heavy-duty Otto-cycle engines above 8,500 pounds GVWR for the 2004, 
2005 through 2007, and the 2008 and subsequent MYs, EPA offered the 
opportunity for a public hearing and requested public comments on these 
new requirements.\13\ EPA received no request for a public hearing, nor 
were any comments received on the CARB amendments at issue. Therefore, 
EPA has made this determination based on the information submitted by 
CARB in its request.
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    \13\ 72 FR 27114 (May 14, 2007).
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D. Standard and Burden of Proof in Clean Air Act Section 209 
Proceedings

    In Motor and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095 (DC Cir. 
1979) (herein ``MEMA I''), the United States Court of Appeals stated 
that the Administrator's role in a section 209 proceeding is to: 
[C]onsider all evidence that passes the threshold test of materiality 
and * * * thereafter assess such material evidence against a standard 
of proof to determine whether the parties favoring a denial * * * have 
shown that the factual circumstances exist in which Congress intended a 
denial * * *.\14\
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    \14\ Motor and Equip. Mfrs. Assoc. v. EPA (MEMA I), 627 F.2d 
1095, 1122 (DC Cir. 1979).
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    The court in MEMA I considered the standards of proof pursuant to 
section 209 for the two findings necessary to grant a waiver for an 
``enforcement procedure'' (as opposed to the standards themselves): (1) 
``Protectiveness in the aggregate'' and (2) ``consistency with section 
202(a)'' findings. The court instructed that, ``the standard of proof 
must take account of the nature of the risk of error involved in any 
given decision, and it therefore varies with the finding involved. We 
need not decide how this standard operates in every waiver decision.'' 
\15\
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    \15\ Id.
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    The court upheld the Administrator's position that, to deny a 
waiver, ``there must be `clear and compelling evidence' to show that 
proposed procedures undermine the protectiveness of California's 
standards.'' \16\ The court noted that this standard of proof ``also 
accords with the congressional intent to provide California with the 
broadest possible discretion in setting regulations it finds protective 
of the public health and welfare.'' \17\
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    \16\ Id.
    \17\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all section 209 
proceedings, but found that the opponents of the waiver were unable to 
meet their burden of proof even if the standard were a mere 
preponderance of the evidence. MEMA I made clear that: [E]ven in the 
two areas concededly reserved for Federal judgment by this 
legislation--the existence of ``compelling and extraordinary'' 
conditions and whether the standards are technologically feasible--
Congress intended that the standards of EPA review of the State 
decision to be a narrow one.'' \18\
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    \18\ See, e.g., 40 FR 23, 102-103 (May 28, 1975).
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    Furthermore, Congress intended that EPA's review of California's 
decision-making be narrow in scope.\19\ This has led EPA in the past to 
reject arguments that are not specified within the statute as grounds 
for denying a waiver or authorization:
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    \19\ See, e.g., MEMA I, 627 F.2d at 1110-11, citing H.R. Rep. 
No. 294, 95th Cong., 1st Sess. 301-02 (1977).

    The law makes it clear that the waiver requests cannot be denied 
unless the specific findings designated in the statute can properly 
be made. The issue of whether a proposed California requirement is 
likely to result in only marginal improvement in air quality not 
commensurate with its cost or is otherwise an arguably unwise 
exercise of regulatory power is not legally pertinent to my decision 
under section 209, so long as the California requirement is 
consistent with section 202(a) and is more stringent than applicable 
Federal requirements in the sense that it may result in some further 
reduction in air pollution in California.\20\
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    \20\ 36 FR 17458 (August 31, 1971). Note that the ``more 
stringent'' standard expressed here in 1971, was superseded by the 
1977 amendments to section 209, which established that California's 
standards must be, in the aggregate, at least as protective of 
public health and welfare as applicable Federal standards.

Thus, EPA's consideration of all the evidence submitted concerning this 
waiver decision is circumscribed by its relevance to those questions 
which the Administrator is directed to consider by section 209.
    Finally, opponents of the waiver bear the burden of showing whether 
California's waiver request is inconsistent with section 202(a). As 
found in MEMA I, this obligation rests firmly with opponents in a 
section 209 proceeding; the court held that:

    The language of the statute and its legislative history indicate 
that California's regulations, and California's determinations that 
they comply with the statute, when presented to the Administrator 
are presumed to satisfy the waiver requirements and that the burden 
of proving otherwise is on whoever attacks them. California must 
present its regulations and findings at the hearing, and thereafter 
the parties opposing the waiver request bear the burden of 
persuading the Administrator that the waiver request should be 
denied.\21\
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    \21\ MEMA I at 1121.

    The Administrator's burden, on the other hand, is to determine that 
she has made a reasonable and fair evaluation of the information in the 
record when coming to the waiver decision. As the court in MEMA I 
stated, ``[h]ere, too, if the Administrator ignores evidence 
demonstrating that the waiver should not be granted, or if [s]he seeks 
to overcome that evidence with unsupported assertions of [her] own, 
[s]he runs the risk of having [her] waiver decision set aside as 
arbitrary and capricious.''\22\ Therefore, the Administrator's burden 
is to act ``reasonably.''\23\
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    \22\ Id. at 1126.
    \23\ Id.
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E. Within-the-Scope Waivers

    CARB suggests in its request letter(s) that since these amendments 
are standards and test procedures that EPA previously issued waivers 
for, that the amendments should be found to be within-the-scope of 
previous EPA waivers.\24\ As noted above, if California acts to amend a 
previously authorized standard or accompanying enforcement procedure, 
the amendment may be considered within-the-scope of a previously issued 
waiver provided that it: (1) Does not undermine California's 
determination that its standards, in the aggregate, are as protective 
of public health and welfare as applicable federal standards, (2) does 
not affect consistency with section 202 of the Act, and (3) raises no 
new issues affecting EPA's previous waiver.\25\
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    \24\ CARB Request for Confirmation that Amendments Are Within 
the Scope of Previous Waivers of Preemption Under Clean Air Act 
Section 209(b), December 7, 2005, at 1 citing 68 FR 19811 and 60 FR 
22034 (April 28, 2005).
    \25\ See, e.g., 51 FR 12391 (April 10, 1986) and 65 FR 69673, 
69674 (November 20, 2000). The first within-the-scope determination 
stated that a CARB request made subsequent to an EPA waiver, 
``exists within the meaning and intent of the waiver granted.'' 37 
FR 14831 (July 25, 1972).

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[[Page 70240]]

    Regardless of whether the first two criteria can be established, 
the third criterion alone prevents EPA from considering this request as 
within-the-scope of EPA's prior waivers. EPA has previously stated that 
if CARB's amendments raise ``new issues'' affecting previously granted 
waiver, we cannot confirm that those amendments are within-the-scope of 
previous waivers.\26\ Further, EPA has stated in prior waiver and 
authorization determinations that increases in the numerical stringency 
of standards are ``new issues'' for which a full waiver or 
authorization is required.\27\ Here, CARB increased the stringency of 
its exhaust emission standards for heavy-duty Otto-cycle engines and 
vehicles above 8,500 pounds GVWR for the 2004, 2005 through 2007, and 
the 2008 and subsequent MYs. Therefore, EPA believes it appropriate to 
go beyond an examination of whether the new standards affect the prior 
consistency with section 202(a) findings and, in this context, require 
a new analysis of whether (A) California's above-noted ``protectiveness 
determination'' is arbitrary and capricious; \28\ (B) California does 
not need such State standards to meet compelling and extraordinary 
conditions; \29\ or (C) California's standards and accompanying 
enforcement procedures are not consistent with section 202(a) of the 
Act.\30\
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    \26\  See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034 
(April 28, 2005).
    \27\ See, e.g., 71 FR 44027 at 44028 (August 3, 2006) (``EPA 
believed it possible that CARB's amendments do in fact raise ``new 
issues'' as they impose new more stringent standards ***'') and 51 
FR 6308 at 6309 (February 21, 1986) (``[T]hese amendments do raise 
significant new issues not considered in prior waiver decisions. In 
effect, California's amendments establish new standards ***. '').
    \28\ CAA section 209(b)(1)(A).
    \29\ CAA section 209(b)(1)(B).
    \30\ CAA section 209(b)(1)(C).
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II. Discussion

    As detailed below, EPA finds that CARB has demonstrated that it 
meets the requirements for a new section 209(b) waiver for heavy-duty 
Otto-cycle engines and vehicles above 8,500 pounds GVWR and, therefore, 
believes a new waiver is appropriate.

A. California's Protectiveness Determination

    Section 209(b)(A)(1) of the Act instructs that EPA cannot grant a 
waiver if the agency finds that CARB was arbitrary and capricious in 
its determination that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. CARB's Board made protectiveness determinations in 
Resolutions 00-45 and 02-31, dated December 7, 2000 and December 12, 
2002. Resolution 00-45 found that amendments to sections 1956.8 and 
1961 of title 13, California Code of Regulations (CCR), as set forth in 
its Attachment A, the amendments to (and adoption of) the documents 
incorporated by those regulations as set forth in Attachments B, C, and 
D, with the modifications set forth in Attachment E to Resolution 00-45 
would not cause the California emission standards, in the aggregate, to 
be less protective of public health and welfare than applicable Federal 
standards.\31\ Resolution 02-31 found that amendments to sections 
1956.1, 1956.8, 1965, and 1978 of title 13, CCR, as set forth in 
Attachment A and the amendments to, and adoption of, the documents 
incorporated by reference in those regulations as set forth in 
Attachments B, D, E, F, G and H to Resolution 02-31, and section 1961, 
title 13, CCR, as set forth in Attachment A thereto, and the amendments 
to the document incorporated by that regulation as set forth in 
Attachment C, with the modifications set forth in Attachment I to the 
Resolution would not cause the California emission standards, in the 
aggregate, to be less protective of public health and welfare than 
applicable Federal standards.\32\ CARB's protectiveness determinations 
in both rulemakings were, therefore, based on comparisons to the 
Federal standards thereby demonstrating that CARB's standards and test 
procedures align with the Federal program.
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    \31\ ``Be it further resolved that the Board hereby determines 
that the California motor vehicle emission standards for passenger 
cars, light-duty trucks and medium duty engines, and for heavy-duty 
Otto-cycle engines, with the amendments approved herein, are, in the 
aggregate, at least as protective of public health and welfare than 
applicable federal standards.'' CARB Resolution 00-45 at 6 (December 
7, 2000).
    \32\ ``Be it further resolved that the Board hereby determines 
that the regulations approved and adopted herein will not cause 
California motor vehicle emission standards, in the aggregate, to be 
less protective of public health and welfare than applicable federal 
standards.'' CARB Resolution 02-31 at 6 (December 12, 2002).
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    EPA did not receive any comments stating that CARB's amendments are 
not, in the aggregate, as stringent as applicable Federal standards. 
Therefore, based on the record before me, I cannot find that CARB's 
amendments, as noted, would cause the California heavy-duty Otto-cycle 
exhaust emission standards, in the aggregate, to be less protective of 
public health and welfare than applicable Federal standards.

B. Need for California Standards to Meet Compelling and Extraordinary 
Conditions

    Section 209(b)(1) of the Act also instructs that EPA cannot grant a 
waiver if the agency finds that California ``does not need such State 
standards to meet compelling and extraordinary conditions, or (C) such 
State standards and accompanying enforcement procedures are not 
consistent with section [202(a)] of the Act.'' This criterion restricts 
EPA's inquiry to whether California needs its own mobile source 
pollution program to meet compelling and extraordinary conditions, and 
not whether any given standards are necessary to meet such 
conditions.\33\ As to the need for the particular standards that are 
the subject of this decision, California is entrusted with the power to 
select ``the best means to protect the health of its citizens and the 
public welfare.'' \34\ CARB has repeatedly demonstrated the existence 
of compelling and extraordinary conditions in California.\35\
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    \33\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \34\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 301-02 (1977) 
(cited in MEMA I, 627 F.2d at 1110).
    \35\ CARB expressed its needs for its own emission control 
program in both of the rulemakings at issue here. (``Be It Further 
Resolved that the Board hereby finds that separate California 
emission standards and test procedures are necessary to meet 
compelling and extraordinary conditions.'' CARB Resolution 00-45 at 
6 (December 7, 2000), CARB's Item 5; CARB Resolution 02-31 at 6 
(December 12, 2002), CARB's Item 19.
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    EPA has not received any adverse comments to suggest that 
California no longer suffers from serious and unique air pollution 
problems. In its supplemental waiver request letter, CARB concluded 
that ``California needs its own on-road engine and vehicle program to 
meet serious air pollution problems unique to the State.'' \36\ EPA has 
repeatedly declined to find fault in California's demonstrations of 
``compelling and extraordinary conditions'' when waiving preemption for 
motor vehicle emission standards under section 209(b) and authorization 
for California's nonroad regulations under section 209(e) of the 
CAA.\37\ Moreover, because EPA has not received adverse public comment 
challenging California's need for its own mobile source pollution 
control program or asserting any change from California's previous 
demonstrations, I cannot deny the waiver based on a lack of

[[Page 70241]]

compelling and extraordinary conditions.
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    \36\ CARB's Supplemental Request Letter dated June 15, 2006 at 
1.
    \37\ See, e.g., 41 FR 44209, 42213 (October 7, 1976); 49 FR 
18887, 18892 (May 3, 1984). See also Final 209(e) Rule, 59 FR at 
36982.
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C. Consistency with Section 202(a) of the Clean Air Act

    EPA has stated in the past that California standards and 
accompanying test procedures would be inconsistent with section 202(a) 
of the Clean Air Act if: (1) There is inadequate lead time to permit 
the development of technology necessary to meet those requirements, 
giving appropriate consideration to cost of compliance within the lead 
time provided, or (2) the federal and California test procedures impose 
inconsistent certification requirements.\38\
---------------------------------------------------------------------------

    \38\ See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034 
(April 28, 2005).
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    The first prong of EPA's inquiry into consistency with section 
202(a) of the Act depends upon technological feasibility. This requires 
EPA to determine whether adequate technology already exists; or if it 
does not, whether there is adequate time to develop and apply the 
technology before the standards go into effect. CARB noted during its 
rulemakings that the methods that can be used to meet the 2004-2005 
standards consist of technologies that have already been developed in 
response to federal emission standards. The technology changes that 
were expected to occur as a result of the new regulations include: 
Improved durability catalysts with increased precious metal loading, 
optimization of the catalyst and fuel metering systems (including 
improved fuel injection and heated oxygen sensors), increased use of 
air injection and retarded spark ignition to control cold start 
emissions, and improved exhaust gas recirculation for better 
NOX control.\39\ Additionally, CARB notes that the 
technological feasibility demonstrations for the exhaust emission 
standards reflect the technological feasibility in EPA's own analysis 
for the federal standards.\40\ CARB also relied on the federal findings 
of technological feasibility for technologies that can be used to meet 
the 2008 and beyond standards.\41\ EPA finds that CARB employed 
appropriate projections of the feasibility of the technologies 
necessary to meet both the 2004-2005 standards and the 2008 standards. 
CARB's examination of the technological feasibility findings made by 
EPA in the federal rulemaking along with subsequent technology 
developments provide no basis upon which to find that CARB's standards 
are not consistent with section 202(a) of the Act.
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    \39\ CARB Item 2 at 7-8.
    \40\ 65 FR 59896 (October 6, 2000).
    \41\ 66 FR 5002 (January 18, 2001), at pp. 5053 to 5055.
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    The second prong of EPA's inquiry into consistency with section 
202(a) of the Act depends on the compatibility of the federal and 
California test procedures. CARB points out that its certification 
requirements are nearly identical to those adopted by EPA.\42\ In fact, 
CARB found that beginning with the 2008 model year, California's test 
procedures are identical to the federal test procedures for heavy-duty 
gasoline engines and incomplete vehicles.\43\ EPA agrees with this 
analysis and finds that one set of tests for a heavy-duty engine or 
vehicle could be used to determine compliance with both California and 
federal requirements. Therefore, we cannot find California's test 
procedures to be inconsistent with our own.
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    \42\ Id. And Item 2 at pp. 7-8.
    \43\ CARB Request for Confirmation that Amendments Are Within 
the Scope of Previous Waivers of Preemption Under Clean Air Act 
Section 209(b), December 7, 2005 at 14.
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    For these reasons, I cannot deny the waiver based on a finding that 
the 2000 and 2002 amendments are inconsistent with section 202(a) of 
the Clean Air Act.

III. Decision

    EPA's analysis finds the criteria for granting a waiver of 
preemption to be satisfied. The amendments require a new waiver of 
preemption because ``new issues'' are presented by the establishment of 
more stringent numerical standards in efforts to harmonize California 
standards with federal standards. Upon evaluation, EPA has determined 
that CARB has met the criteria for a waiver of preemption for the 2000 
and 2002 amendments.
    The Administrator has delegated the authority to grant California a 
section 209(b) waiver to enforce its own emission standards for on-road 
engines to the Assistant Administrator for Air and Radiation. Having 
given consideration to all the material submitted for this record, and 
other relevant information, I find that I cannot make the 
determinations required for a denial of a waiver pursuant to section 
209(b) of the Act. Therefore, I grant a waiver of Clean Air Act 
preemption to the State of California with respect to its heavy-duty 
Otto-cycle engine and vehicle requirements as set forth above.
    My decision will affect not only persons in California but also 
manufacturers outside the State who must comply with California's 
requirements in order to produce engines for sale in California. For 
this reason, I determine and find that this is a final action of 
national applicability for purposes of section 307(b) (1) of the Act.
    Pursuant to section 307(b) (1) of the Act, judicial review of this 
final action may be sought only in the United States Court of Appeals 
for the District of Columbia Circuit. Petitions for review must be 
filed by January 18, 2011. Judicial review of this final action may not 
be obtained in subsequent enforcement proceedings, pursuant to section 
307(b) (2) of the Act.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a 
supporting regulatory flexibility analysis addressing the impact of 
this action on small business entities.

    Dated: November 10, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-28971 Filed 11-16-10; 8:45 am]
BILLING CODE 6560-50-P



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