California State Motor Vehicle Pollution Control Standards; Heavy-Duty Tractor-Trailer Greenhouse Gas Regulations; Notice of Decision |
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Janet G. McCabe
Environmental Protection Agency
August 7, 2014
[Federal Register Volume 79, Number 152 (Thursday, August 7, 2014)]
[Notices]
[Pages 46256-46265]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18742]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2013-0491; FRL9914-78-OAR]
California State Motor Vehicle Pollution Control Standards;
Heavy-Duty Tractor-Trailer Greenhouse Gas Regulations; Notice of
Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of Decision.
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SUMMARY: The Environmental Protection Agency (EPA) is granting the
California Air Resources Board's (CARB) request for a waiver of Clean
Air Act preemption to enforce provisions of its Heavy-Duty Tractor-
Trailer Greenhouse Gas Regulations (``HD GHG Regulations'') applicable
to new 2011 through 2013 model year (MY) Class 8 tractors equipped with
integrated sleeper berths (sleeper-cab tractors) and to new 2011 and
subsequent MY dry-van and refrigerated-van trailers that are pulled by
such tractors on California highways. This decision is issued under the
authority of the Clean Air Act (``CAA'' or ``the Act'').
DATES: Petitions for review must be filed by October 6, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2013-0491. All documents relied upon in making this
decision, including those submitted to EPA by CARB, are contained in
the public docket. Publicly available docket materials are available
either electronically through www.regulations.gov or in hard copy at
the Air and Radiation Docket in the EPA Headquarters Library, EPA West
Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The
Public Reading Room is open to the public on all federal government
working 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 email 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 at http://www.regulations.gov. After opening the
www.regulations.gov Web site, enter EPA-HQ-OAR-2013-0491 in the ``Enter
Keyword or ID'' fill-in box to view documents in the record. 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 (``OTAQ'') maintains
a Web page that contains general information on its review of
California waiver and authorization requests. Included on that page are
links to prior waiver Federal Register notices, some of which are cited
in today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.
FOR FURTHER INFORMATION CONTACT: David Read, Office of Transportation
and Air Quality, U.S. Environmental Protection Agency, 2565 Plymouth
Rd., Ann Arbor, MI 48105. Telephone: (734) 214-4367. Fax: (734) 214-
4212. Email: read.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
By letter dated June 20, 2013, CARB requested that EPA grant a
waiver of preemption pursuant to section 209(b) of the CAA for the
California HD GHG Regulations applicable to new 2011 through 2013 model
year (MY) Class 8 tractors equipped with integrated sleeper berths
(sleeper-cab tractors) and to new 2011 and subsequent MY dry-van and
refrigerated-van trailers that are pulled by such tractors on
California highways. The HD GHG Regulations are set forth at title 17,
California Code of Regulations (CCR) sections 95300 through 95312.\1\
The HD GHG
[[Page 46257]]
Regulations apply to new and in-use 53-foot or longer trailers and the
new and in-use tractors that pull them.\2\ However, California
expressly limited the scope of its waiver request to just new MY2011-
MY2013 tractors and MY2011 and later trailers, as described above,
``that together are considered to operate as an integrated vehicle.''
\3\
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\1\ Please note that, as used herein, the term ``HD GHG
Regulations'' encompasses all of 17 CCR 95300 through 95312, thus
including provisions whose scope may apply to products beyond
California's waiver request. EPA will clarify when statements herein
apply exclusively to provisions that are included in the waiver
request, and not also to the HD GHG Regulations more generally.
\2\ 17 CCR Sec. Sec. 95301(a)(1) and 95302(a)(28).
\3\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 2. California's waiver request does
not include California's more recent action to harmonize its HD GHG
Regulations with EPA's HD GHG rule beginning MY 2014.
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CARB did not include the full suite of HD GHG Regulations in its
waiver request, nor did it include emergency, temporary amendments to
the HD GHG Regulations that CARB adopted in 2012.\4\
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\4\ Id. at 8.
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CARB's June 20, 2013 submission provides analysis and evidence to
support its finding that the HD GHG Regulations satisfy the CAA section
209(b) criteria and that a waiver of preemption should be granted.
The request notes that CARB promulgated the HD GHG Regulations in
response to the California Global Warming Solutions Act of 2006 (AB
32).\5\ That legislation directs CARB to implement ``discrete early
action GHG emission reduction measures'' to achieve cost-effective
reductions in GHG emissions. The resulting HD GHG Regulations are
designed to reduce GHG emissions by, inter alia, requiring certain
tractors and semitrailers on California highways to employ aerodynamic
technologies and low-rolling-resistance tires. CARB determined that
aerodynamic and other efficiency upgrades would yield the greatest GHG
benefits when installed on vehicles that operate frequently at highway
speeds. The HD GHG Regulations therefore exempt certain types of
tractors and trailers that CARB deemed to be less likely to travel at
highway speeds.\6\
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\5\ California Global Warming Solutions Act of 2006, Assembly
Bill 32, Stats. 2006, Chapter 488.
\6\ 17 CCR Sec. 95301(b), (c). Exemptions include local-haul
and short-haul tractors and trailers, drayage tractors and trailers,
storage trailers, empty trailers, drop-frame trailers, chassis
trailers, curtain-side trailers, livestock trailers, refuse
trailers, and box-type trailers that are less than 53 feet in
length.
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For vehicles that are not exempted, the HD GHG Regulations
incorporate elements of EPA's SmartWay[supreg] Program,\7\ in effect
mandating use of technologies that fleets may adopt voluntarily to
achieve SmartWay designation.\8\ Specifically, the HD GHG Regulations
subject to this waiver request require new 2011 and subsequent MY
sleeper-cab tractors \9\ that haul 53-foot or longer box-type trailers
on California highways to be SmartWay certified \10\ and to use
SmartWay verified tires beginning January 1, 2010.\11\ Likewise, new
2011 and subsequent MY dry-van and refrigerated-van trailers are also
required to be SmartWay certified (or equipped with specified SmartWay
Verified Technologies) beginning January 1, 2010.\12\ The HD GHG
Regulations apply to tractors and trailers when driven on a highway
within California whether or not the equipment is registered in
California.\13\
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\7\ EPA's SmartWay Technology Program is a voluntary testing,
verification, and designation program to help freight companies
identify equipment, technologies and strategies that save fuel and
lower emissions. See http://epa.gov/smartway/about/index.htm.
\8\ These criteria for tractors include (i) a 2007 or subsequent
MY federally certified engine, (ii) an integrated sleeper-cab high
roof fairing, (iii) tractor-mounted side-fairing gap reducers, (iv)
tractor fuel-tank side fairings, (v) aerodynamic bumpers and
mirrors, (vi) low-rolling-resistance tires meeting SmartWay
specifications, and (vii) optional systems for reducing extended
engine idling. California Waiver Request Support Document, June 20,
2013, EPA-HQ-OAR-2013-0491-0003, at 9.
\9\ As noted above, this waiver request is applicable only to MY
2011-2013 sleeper-cab tractors.
\10\ California's term ``SmartWay certified'' is synonymous with
EPA's term ``SmartWay designated'' herein.
\11\ 17 CCR Sec. 95303(a).
\12\ 17 CCR Sec. 95303(b). EPA SmartWay criteria for dry-van
trailers include five possible configurations, all requiring low-
rolling-resistance tires and aerodynamic improvements (e.g., trailer
side skirt fairings, trailer front-mounted gap reducer fairings, and
trailer rear fairings). California Waiver Request Support Document,
June 20, 2013, EPA-HQ-OAR-2013-0491-0003, at 11.
\13\ 17 CCR Sec. Sec. 95301(a), 95302(a)(37), 95303.
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CARB projects that the HD GHG Regulations overall will reduce GHG
emissions in California by 0.7 million metric tons of carbon-dioxide
equivalent emissions by 2020.\14\ CARB also projects that the HD GHG
Regulations will reduce nitrogen oxide (NOX) emissions in
California by 3.1 tons per day in 2014, thereby helping California meet
national ambient air quality standards for particulate matter and
ozone.\15\
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\14\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 1.
\15\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 1. The NOX reduction
benefit is projected to fall to a 1 ton per day reduction in
NOX emissions by 2020. Id.
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CARB states that it formally adopted the HD GHG Regulations on
October 23, 2009, and the HD GHG Regulations became operative under
state law on January 1, 2010.\16\ Amendments to provide compliance
flexibility (``the 2010 Amendments''), including limited five-day
exemptions and an alternative compliance schedule, were adopted by CARB
on October 26, 2011, and became operative on January 11, 2012.\17\
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\16\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 4.
\17\ Id. at 7.
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II. Principles Governing This Review
A. Scope of Review
Section 209(a) of the CAA 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.\18\
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\18\ CAA Sec. 209(a). 42 U.S.C. 7543(a).
Section 209(b)(1) of the Act requires the Administrator, after an
opportunity for public hearing, to waive application of the
prohibitions of section 209(a) for any state that has 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 state standards will be, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards.\19\ However, no such waiver shall be
granted if the Administrator finds that: (A) The protectiveness
determination of the state is arbitrary and capricious; (B) the state
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.\20\
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\19\ CAA Sec. 209(b)(1). 42 U.S.C. 7543(b)(1). California is
the only state that meets section 209(b)(1)'s requirement for
obtaining a waiver. See S. Rep. No. 90-403 at 632 (1967).
\20\ CAA Sec. 209(b)(1). 42 U.S.C. 7543(b)(1).
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Key principles governing this review are that EPA should limit its
inquiry to the specific findings identified in section 209(b)(1) of the
Clean Air Act, and that EPA will give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended the
Agency's review of California's decision-making to be narrow. EPA has
rejected arguments that
[[Page 46258]]
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are not specified in the statute as grounds for denying a waiver:
``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 California air
quality not commensurate with its costs 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.'' \21\
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\21\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (Aug. 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
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.
This principle of narrow EPA review has been upheld by the U.S.
Court of Appeals for the District of Columbia Circuit.\22\ Thus, EPA's
consideration of all the evidence submitted concerning a waiver
decision is circumscribed by its relevance to those questions that may
be considered under section 209(b)(1).
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\22\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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B. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a waiver request by California bear the burden of
showing that the statutory criteria for a denial of the request have
been met:
``[T]he language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they must 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.'' \23\
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\23\ MEMA I, note 19, at 1121.
The Administrator's burden, on the other hand, is to make a reasonable
evaluation of the information in the record in coming to the waiver
decision. As the court in MEMA I stated: ``here, too, if the
Administrator ignores evidence demonstrating that the waiver should not
be granted, or if he seeks to overcome that evidence with unsupported
assumptions of his own, he runs the risk of having his waiver decision
set aside as `arbitrary and capricious.' '' \24\ Therefore, the
Administrator's burden is to act ``reasonably.'' \25\
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\24\ Id. at 1126.
\25\ Id. at 1126.
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With regard to the standard of proof, the court in MEMA I explained
that the Administrator's role in a section 209 proceeding is to:
``[. . .]consider 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 of the waiver have shown that the factual
circumstances exist in which Congress intended a denial of the
waiver.'' \26\
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\26\ Id. at 1122.
In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court, however, are similarly applicable to
an EPA review of a request for a waiver of preemption for a standard.
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.'' \27\
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\27\ Id.
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With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\28\ 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.\29\
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\28\ Id.
\29\ Id.
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With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all 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.
Although MEMA I did not explicitly consider the standards of proof
under section 209 concerning a waiver request for ``standards,'' as
compared to a waiver request for accompanying enforcement procedures,
there is nothing in the opinion to suggest that the court's analysis
would not apply with equal force to such determinations. EPA's past
waiver decisions have consistently 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.''
\30\
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\30\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
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C. Deference to California
In previous waiver decisions, EPA has recognized that the intent of
Congress in creating a limited review based on specifically listed
criteria was to ensure that the federal government did not second-guess
state policy choices. As the Agency explained in one prior waiver
decision:
``It is worth noting . . . I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator. . . .
Since a balancing of [ ] risks and costs against the potential
benefits from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.'' \31\
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\31\ 40 FR 23102, 23103-04 (May 28, 1975).
Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\32\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
CAA. Congress had the opportunity through the 1977 amendments to
restrict the preexisting waiver provision, but elected instead to
expand California's flexibility to adopt a complete program of motor
vehicle emission controls. The report explains that the amendment is
intended to ratify and strengthen the preexisting California waiver
provision and to affirm the underlying intent of that provision, that
is, to afford California the broadest possible discretion in selecting
the best means to
[[Page 46259]]
protect the health of its citizens and the public welfare.\33\
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\32\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13,
1993).
\33\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-02 (1977)).
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D. EPA's Administrative Process in Consideration of California's
Request
On August 21, 2013, EPA published a notice of opportunity for
public hearing and comment on California's waiver request. EPA
scheduled a public hearing concerning CARB's request for September 6,
2013, and asked for written comments to be submitted by October 18,
2013.\34\ EPA's notice of CARB's request invited public comment on the
following issues:
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\34\ 78 FR 51724 (August 21, 2013).
``Whether (a) California's determination that its motor vehicle
emission standards are, in the aggregate, at least as protective of
public health and welfare as applicable federal standards is
arbitrary and capricious, (b) California needs such standards to
meet compelling and extraordinary conditions, and (c) California's
standards and accompanying enforcement procedures are consistent
with section 202(a) of the Clean Air Act.'' \35\
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\35\ 78 FR 51725 (August 21, 2013).
EPA received no requests for a public hearing, so EPA did not hold
a hearing. In response to the request for comments, EPA received
comments from the California Construction Trucking Association
(``CCTA''),\36\ the Owner-Operated Independent Drivers Association,
Inc. (OOIDA),\37\ the California Trucking Association (CTA),\38\ and
American Trucking Associations, Inc. (ATA).\39\ EPA also received an
additional submission from CARB.\40\
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\36\ CCTA comments are at EPA-HQ-OAR-2013-0491-0051.
\37\ OOIDA comments are at EPA-HQ-OAR-2013-0491-0053.
\38\ CTA comments are at EPA-HQ-OAR-2013-0491-0052.
\39\ ATA comments are at EPA-HQ-OAR-2013-0491-0050.
\40\ CARB supplemental comments are at EPA-HQ-OAR-2013-0491-
0054.
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III. Discussion
As discussed above, California's HD GHG Regulations apply to
trailers as well as to tractors. The inclusion of trailers in the HD
GHG Regulations led to comments raising the question of whether
California's HD GHG trailer regulations are ``standards relating to the
control of emissions from new motor vehicles or new motor vehicle
engines'' and thus, subject to CAA preemption under section 209(a) and
EPA waiver review under section 209(b)(1). As a result, before
proceeding to a discussion on the merits of the waiver request, the
Agency will first address the threshold question of whether the trailer
regulations are indeed preempted and subject to EPA waiver review.
A. Whether Regulation of GHG Emissions Associated With Trailer Use
Relates to the Control of Emissions From New Motor Vehicles
Section 209(a) of the CAA only applies to states' efforts to
``adopt or attempt to enforce any standard relating to the control of
emissions from new motor vehicles or new motor vehicle engines.'' \41\
Thus, if a California regulation (in this case the regulation of
greenhouse gas emissions associated with trailers) does not relate to
the control of emissions from new motor vehicles or new motor vehicle
engines, there would be no preemption under section 209(a), in which
case no waiver is necessary under section 209(b) for California to
enforce its regulation. Conversely, a waiver would be necessary and a
waiver review appropriate for any California regulation that sets forth
any standard relating to the control of emissions from new motor
vehicles or new motor vehicle engines. Therefore, as a threshold issue,
the Agency first examines whether the HD GHG Regulations, as applied to
the reduction of emissions associated with trailer use, relate to the
control of emissions from new motor vehicles or new motor vehicle
engines, as defined and applied under the CAA.
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\41\ 42 U.S.C. 7543(a).
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EPA received comments from CCTA and OOIDA arguing that trailers are
not by themselves ``motor vehicles'' and do not by themselves produce
emissions, and therefore the HD GHG Regulations for trailers are not
related to the control of emissions from new motor vehicles.\42\ If
this argument were correct, then California would not need a waiver of
preemption under section 209(b), as discussed above. We note that both
CCTA and OOIDA make this point as part of arguments that assume that
CARB's authority to regulate comes from CAA section 209, and that CARB
has no authority to regulate trailers apart from the CAA. However,
CARB's authority to regulate comes from California state law.\43\ As
noted in MEMA I, the U.S. Court of Appeals for the District of Columbia
Circuit, in reviewing the legislative history of section 209, noted
that California had regulated motor vehicle pollution well before any
federal emission standards were promulgated.\44\ Section 209 only
relates to the potential Clean Air Act preemption of California's laws
on the issue. EPA did not receive comment indicating why a regulation
that is not preempted by section 209(a) should be disallowed by EPA.
Certainly, for the purposes of this proceeding, if a state regulation
is not prohibited under section 209(a), then a waiver of preemption is
unnecessary under section 209(b).
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\42\ CCTA, at 2; OOIDA, at 4.
\43\ See Response to Comments Submitted by Parties Opposing
California's Request for Waiver for California's Tractor-Trailer
Greenhouse Gas Regulation Pursuant to Clean Air Act Section 209(b),
December 6, 2013, EPA-HQ-OAR-2013-0491-0054 (``CARB's Supplemental
Comment''), at 2 (``CARB's authority to regulate new 53-foot and
longer box-type trailers pulled by tractors is derived from state
law, primarily, the California Global Warming Solutions Act of 2006.
. .'')
\44\ MEMA I at 1110-1111 (``The history of congressional
consideration of the California waiver provision, from its original
enactment up through 1977, indicates that Congress intended the
State to continue and expand its pioneering efforts at adopting and
enforcing motor vehicle emission standards. . . .'') (Emphasis
added).
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CARB's waiver request did not address the statutory interpretation
of the CAA definition of ``motor vehicle,'' or specifically, whether
that would include trailers. CARB nevertheless requested a waiver for
the HD GHG Regulations (including the trailer provisions), stating that
its request ``is consistent with EPA's statements that trailers affect
the aerodynamic drag, rolling resistance, and overall weight of
combination tractor-trailers.'' \45\ In addition, CARB notes that EPA
had found that addressing GHG emissions from heavy-duty trucks requires
a focus on the entire vehicle, and that trailers impact the carbon
dioxide emissions from combination tractors.\46\
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\45\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 2 n.4.
\46\ CARB's Supplemental Comment, at 3-4, citing 75 FR 74152,
74159-160, 74346 (November 30, 2010) and 76 FR 57106, 57362
(September 15, 2011).
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The CAA defines ``motor vehicle'' as ``any self-propelled vehicle
designed for transporting persons or property on a street or highway.''
\47\ The commenters note that a trailer by itself is not ``self-
propelled.'' They claim that as a result, a trailer does not constitute
a ``motor vehicle'' under the Act. EPA disagrees. Another evident way
to view the issue is that the heavy-duty vehicles subject to this
waiver discussion are comprised of two major components: The tractor
and the trailer. The vehicle consists of these two detachable parts.
The trailer's sole purpose is to serve as the cargo-hauling part of the
vehicle. Without the tractor, the trailer cannot transport property;
however, the tractor is also incomplete without the trailer. The motor
vehicle needs both parts to accomplish its fully intended use.
[[Page 46260]]
Connected together, a tractor and trailer constitute ``a self-propelled
vehicle designed for transporting persons or property on a street or
highway,'' and thus meet the definition of ``motor vehicle'' under the
Act.
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\47\ 42 U.S.C. 7550(2).
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This analysis is consistent with definitions in the federal
regulations issued under the Act at 40 CFR 86.1803.01, where a heavy-
duty vehicle ``that has the primary load carrying device or container
attached'' is referred to as a ``[c]omplete heavy-duty vehicle,'' while
a heavy-duty vehicle or truck ``which does not have the primary load
carrying device or container attached'' is referred to as an
``[i]ncomplete heavy-duty vehicle'' or ``[i]ncomplete truck.'' \48\ The
trailers covered by California's HD GHG Regulations here are properly
considered ``the primary load carrying device or container'' for the
heavy-duty vehicles to which they become attached for use. Therefore,
such trailers are implicitly part of a ``complete heavy-duty vehicle,''
and thus part of a ``motor vehicle.''
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\48\ 40 CFR 86.1803.01 ``Complete heavy-duty vehicle means any
Otto-cycle heavy-duty vehicle of 14,000 pounds Gross Vehicle Weight
Rating or less that has the primary load carrying device or
container attached at the time the vehicle leaves the control of the
manufacturer of the engine.'' . . . ``Incomplete heavy-duty vehicle
means any heavy-duty vehicle which does not have the primary load
carrying device or container attached.'' . . . ``Incomplete truck
means any truck which does not have the primary load carrying device
or container attached.''
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Moreover, it is important to remember that the preemption language
in section 209 does not apply to ``motor vehicles,'' but to ``standards
relating to the control of emissions from new motor vehicles or new
motor vehicle engines.'' As EPA discussed in its regulation of
greenhouse gas emissions from heavy-duty engines, improvement of
trailer aerodynamic properties will result in GHG emission reductions
from the engine of the vehicle. Likewise, the efficiency of the
trailer's tires affects GHG emission levels.\49\ It is therefore
logical to treat emission-related regulations directed at trailers
pulled by tractors as regulations related to emissions of motor
vehicles under the CAA. In the same way, EPA has applied its
regulations to other equipment that is known to be generally part of a
motor vehicle and to affect the emissions of the motor vehicle, but is
not part of the engine system or powertrain itself. For example,
emissions testing provisions under the federal rules controlling GHG
emissions from heavy-duty vehicles and engines consider the test
vehicle's tires in determining the vehicle's emissions test results.
Light-duty vehicle roof racks and side mirrors (which affect vehicle
aerodynamics, and hence GHG emissions) are additional examples from the
EPA light-duty vehicle rules. Similarly, under 40 CFR 86.1832-01,
optional equipment that exceeds a certain minimum weight is counted in
the curb weight for a motor vehicle if it is expected to be attached to
at least a certain minimum percentage of the car line. Like trailers,
these parts of a motor vehicle do not generally produce emissions by
themselves, but they are nevertheless considered in determining
emissions related to motor vehicles under the CAA.
---------------------------------------------------------------------------
\49\ See 75 FR 74152, 74347-49 (Nov. 30, 2010); 76 FR 57106,
57362 (Sept. 15, 2011). Weight reduction from trailers affords
another opportunity for GHG reductions. Id.
---------------------------------------------------------------------------
In addition, we note that the California program regulates
emissions associated with trailers when the trailer is operated as part
of the vehicle. The reason the trailers are regulated is because of
their effect on the vehicle's emissions. CCTA, in its comments, does
not dispute that a trailer affects the GHG emissions of the tractor
pulling the trailer or that the HD GHG Regulations as to trailers are
intended to create emissions reductions from new motor vehicles that
include those trailers.\50\ In summary, California's HD GHG Regulations
clearly relate to the control of emissions from new motor vehicles and
are thus subject to the CAA preemption and waiver requirements under
section 209 of the Act.
---------------------------------------------------------------------------
\50\ CCTA, at 2.
---------------------------------------------------------------------------
Moreover, as noted above, even under the commenters' argument that
emission standards applicable to trailers are not standards related to
emissions from motor vehicles, the effect of that argument would be
that California regulations affecting trailers would not be preempted
under section 209(a) of the Act, and thus would not need a waiver under
section 209(b) of the Act to be enforced.
B. California's Protectiveness Determination
Section 209(b)(1)(A) of the Act sets forth the first of the three
criteria governing a waiver request--whether California was arbitrary
and capricious in its determination that its state standards will be,
in the aggregate, at least as protective of public health and welfare
as applicable federal standards. Section 209(b)(1)(A) of the CAA
requires EPA to deny a waiver if the Administrator finds that
California's protectiveness determination was arbitrary and capricious.
However, a finding that California's determination was arbitrary and
capricious must be based upon clear and convincing evidence that
California's finding was unreasonable.\51\
---------------------------------------------------------------------------
\51\ MEMA I, 627 F.2d at 1122, 1124 (``Once California has come
forward with a finding that the procedures it seeks to adopt will
not undermine the protectiveness of its standards, parties opposing
the waiver request must show that this finding is unreasonable.'');
see also 78 FR 2112, at 2121 (Jan. 9, 2013).
---------------------------------------------------------------------------
CARB did make a protectiveness determination in adopting the HD GHG
Regulations, and found that the HD GHG Regulations would not cause
California motor vehicle emissions standards, in the aggregate, to be
less protective of the public health and welfare than applicable
federal standards.\52\ CARB noted that EPA has not issued regulations
to control GHG emissions from medium and heavy-duty on-road vehicles
for MYs 2011 through 2013, nor has EPA issued regulations to control
GHG emissions relating to trailer usage. Thus, CARB concluded that
California's 2011 through 2013 MY standards for sleeper-cab tractors
and California's standards for MY 2011 and subsequent trailers are
clearly, in the aggregate, at least as protective of the public health
and welfare as applicable federal standards.\53\
---------------------------------------------------------------------------
\52\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 16, citing Board Resolutions 08-44 and
10-46.
\53\ Id.
---------------------------------------------------------------------------
Under CAA section 209(b)(2), ``[i]f each State standard is at least
as stringent as the comparable applicable Federal standard, such State
standard shall be deemed to be at least as protective of health and
welfare as such Federal standards for purposes of [209(b)(1)].'' \54\
Where, as here, there are no federal standards directly comparable to
the specific California standards under review,\55\ the analysis then
occurs against the backdrop of previous waivers, which have determined
that the California program overall was at least as protective as the
federal program.\56\ Consistent with this precedent, we cannot find
that the HD GHG Regulations for which California is now requesting a
waiver diminish the protectiveness of the overall California program.
---------------------------------------------------------------------------
\54\ CAA Sec. 209(b)(2); see also 78 FR 2112, at 2121-22 (Jan.
9, 2013).
\55\ As mentioned, while comparable federal standards for
tractors will apply beginning MY 2014, there are no comparable
standards for MYs 2011-2013 and no comparable federal standards for
trailers.
\56\ 78 FR 2112, at 2122 n. 52 (Jan. 9, 2013); see also 71 FR
78190 (December 21, 2006).
---------------------------------------------------------------------------
EPA received no comments or evidence suggesting that CARB's
protectiveness determination, under EPA's traditional analysis, is
arbitrary and capricious. In particular, no commenter disputes that
California
[[Page 46261]]
standards, whether looking at the particular California standards being
analyzed in this proceeding or the entire suite of California standards
applicable to heavy-duty motor vehicles and engines, are at least as
stringent, in the aggregate, as applicable federal standards.
CTA did note that EPA provided policy reasons for not regulating
trailers in the first phase of EPA's Heavy-Duty National Program.\57\
However, EPA's policy discussion cited by CTA does not indicate
regulation of trailers was not protective of public health. As noted
above, EPA acknowledged that regulation of trailers could have an
effect on emissions.
---------------------------------------------------------------------------
\57\ CTA, at 3; ``Greenhouse Gas Emissions Standards and Fuel
Efficiency Standards for Medium- and Heavy-Duty Engines and
Vehicles,'' 76 FR 57106 (September 15, 2011) (``Heavy-Duty National
Program'').
---------------------------------------------------------------------------
CTA commented that CARB's protectiveness conclusion was not
rationally based on any empirical evidence demonstrating benefits from
the HD GHG Regulations.\58\ CTA argues that the actual emission
reduction benefits of the HD GHG Regulations are much lower than CARB
claimed, although CTA acknowledges that the HD GHG Regulations do
provide at least some emissions reduction benefit in the aggregate.\59\
---------------------------------------------------------------------------
\58\ CTA, at 3-4.
\59\ CTA, at 4 and at Attachment B.
---------------------------------------------------------------------------
However, this comment does not take into account that the
protectiveness criterion does not require EPA to determine whether
California's projections of emission reductions are correct in all of
its aspects, but rather whether CARB's protectiveness determination is
arbitrary and capricious. EPA need not confirm the precise accuracy of
California's projections of emission benefits to find that its
protectiveness determination is not arbitrary or capricious. This has
not been EPA's practice in prior waiver decisions. As previously
explained, the text, structure, and history of section 209(b)(1)
clearly indicate both a congressional intent and appropriate EPA
practice of leaving the decision on ``ambiguous and controversial
matters of public policy'' to California's judgment.\60\ Thus, unless
EPA finds California's protectiveness determination to be arbitrary and
capricious, the state's determination that the HD GHG regulations
provide an emissions reduction benefit that is at least equivalent to
federal standards is sufficient.
---------------------------------------------------------------------------
\60\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13,
1993).
---------------------------------------------------------------------------
Indeed, California standards are most clearly ``at least as
protective'' when they are compared to the absence of federal emission
standards.\61\ In the absence of EPA standards there is a clear
rational basis for CARB's determination that its standards will be at
least as protective of human health and welfare as applicable federal
standards.
---------------------------------------------------------------------------
\61\ 74 FR 32744, 32755 (July 8, 2009).
---------------------------------------------------------------------------
Because the commenters have not presented evidence to show that
CARB's protectiveness determination is arbitrary and capricious, EPA
cannot find that California's protectiveness determination is arbitrary
and capricious.
C. Whether the Standards are Necessary to Meet Compelling and
Extraordinary Conditions
Section 209(b)(1)(B) instructs that EPA cannot grant a waiver if
the Agency finds that California ``does not need such California
standards to meet compelling and extraordinary conditions.'' EPA's
inquiry under this second criterion has traditionally been to determine
whether California needs its own mobile source pollution program (i.e.
set of standards) for the relevant class or category of vehicles or
engines to meet compelling and extraordinary conditions, and not
whether the specific standards that are the subject of the waiver
request are necessary to meet such conditions.\62\ In recent waiver
actions, EPA again examined the language of section 209(b)(1)(B) and
reiterated this longstanding traditional interpretation as the better
approach for analyzing the need for ``such State standards'' to meet
``compelling and extraordinary conditions.'' \63\
---------------------------------------------------------------------------
\62\ See California State Motor Vehicle Pollution Control
Standards; Notice of Decision Granting a Waiver of Clean Air Act
Preemption for California's 2009 and Subsequent Model Year
Greenhouse Gas Emission Standards for New Motor Vehicles,'' 74 FR
32744 (July 8, 2009), at 32761; see also ``California State Motor
Vehicle Pollution Control Standards; Waiver of Federal Preemption
Notice of Decision,'' 49 FR 18887 (May 3, 1984), at 18889-18890.
\63\ See 78 FR 2112, at 2125-26 (Jan. 9, 2013) (``EPA does not
look at whether the specific standards at issue are needed to meet
compelling and extraordinary conditions related to that air
pollutant.'' ; see also EPA's July 9, 2009 GHG Waiver Decision
wherein EPA rejected the suggested interpretation of section
209(b)(1)(B) as requiring a review of the specific need for
California's new motor vehicle greenhouse gas emission standards as
opposed to the traditional interpretation (need for the program as a
whole) applied to local or regional air pollution problems.
---------------------------------------------------------------------------
CARB determined in Resolutions 08-44 and 10-46 that California
continues to need its own motor vehicle program to meet serious ongoing
air pollution problems.\64\ CARB asserted that ``[t]he geographical and
climatic conditions and the tremendous growth in vehicle population and
use that moved Congress to authorize California to establish vehicle
standards in 1967 still exist today . . . and therefore there can be no
doubt of the continuing existence of compelling and extraordinary
conditions justifying California's need for its own motor vehicle
emissions control program.'' \65\ Specifically, CARB's Board noted
``The proposed regulation is estimated to result in statewide
reductions of oxides of nitrogen emissions of approximately 4.3 tons
per day in 2014 and 1.4 tons per day in 2020. These reductions will
help with progress toward attainment of National and State Ambient Air
Quality Standards for particulate matter and ozone.'' \66\
---------------------------------------------------------------------------
\64\ California Waiver Request Support Document, at 16-17.
\65\ California Waiver Request Support Document, at 17.
\66\ See CARB Resolution 08-44 at 5. These estimates were later
reduced somewhat. See footnote 69 hereafter.
---------------------------------------------------------------------------
There has been no evidence submitted to indicate that California's
compelling and extraordinary conditions do not continue to exist.
California, particularly the South Coast and San Joaquin Valley air
basins, continues to experience some of the worst air quality in the
nation and many areas in California continue to be in non-attainment
with national ambient air quality standards for fine particulate matter
and ozone.\67\ As California has previously stated, ``nothing in
[California's unique geographic and climatic] conditions has changed to
warrant a change in this determination.'' \68\
---------------------------------------------------------------------------
\67\ 74 FR 32744, 32762-63 (July 8, 2009).
\68\ 74 FR 32744, 32762 (July 8, 2009); 76 FR 77515, 77518
(December 13, 2011).
---------------------------------------------------------------------------
California projects reductions in NOX emissions of 3.1
tons per day in 2014 and one ton per day in 2020 due to the HD GHG
Regulations.\69\ California states that these emissions reductions will
help California in its efforts to attain applicable air quality
standards. California further projects that the HD GHG Regulations will
reduce GHG emissions in California by approximately 0.7 million metric
tons (MMT) of carbon dioxide equivalent emissions (CO2e) by
2020.\70\
---------------------------------------------------------------------------
\69\ California Waiver Request Support Document, at 1; see also
CARB Staff Report: Initial Statement of Reasons for Proposed
Rulemaking (ISOR), October 2008, at ES5 and 56 (initially projecting
even higher CO2 and NOX emission reductions).
\70\ California Waiver Request Support Document, at 1.
---------------------------------------------------------------------------
Based on the record before us, EPA is unable to identify any change
in
[[Page 46262]]
circumstances or evidence to suggest that the conditions that Congress
identified as giving rise to serious air quality problems in California
no longer exist. Therefore, EPA cannot deny the waiver based on EPA's
traditional interpretation under this waiver prong.
EPA received comment suggesting that the Agency's past actions
suggest that there can be no ``need'' for CARB's trailer standards.
Specifically, in one comment, CCTA argues that the EPA's ``cause or
contribution finding,'' made at the same time as EPA's endangerment
finding, concludes that current and projected concentrations of six key
greenhouse gases in the atmosphere threaten the public health and
welfare of current and future generations, but only included a
definition of ``new motor vehicles and new motor vehicle engines'' and
did not include new or newer trailers in the finding.\71\ While CCTA
phrased its comment as an argument against a necessity determination,
these issues are extraneous to EPA's evaluation of the request as
dictated by section 209(b)(1)(B).\72\ First, as previously noted, the
HD GHG Regulations relate to the control of emissions from new motor
vehicles, and trailers are appropriately considered within that term.
Therefore, CCTA's claim that EPA's cause or contribution finding
excluded trailers is incorrect. Second, the HD GHG Regulations are
promulgated under the authority of California state law, and are
neither contingent on nor dependent upon EPA's endangerment
finding.\73\ Finally, EPA's evaluation of whether California's
standards are necessary to meet compelling and extraordinary conditions
is not contingent on or directly related to EPA's cause or contribution
finding, which was a completely different determination than whether
California needs its mobile source pollution program to meet compelling
and extraordinary conditions in California.
---------------------------------------------------------------------------
\71\ CCTA, at 6. As background, on December 7, 2009 the EPA
Administrator made two distinct findings regarding greenhouse gases
under section 202(a) of the Clean Air Act. These findings were
published at 74 FR 66496 (December 15, 2009). EPA noted that the
transportation sources covered under section 202(a) (the section
under which the two findings occur) include passenger cars, light-
and heavy-duty trucks, buses, and motorcycles.
\72\ Although CCTA did not suggest that a supposed lack of an
endangerment and/or cause or contribution finding regarding trailers
causes CARB's Regulations to be inconsistent with section 202(a)
(and thus a waiver should not be granted under the third waiver
prong), EPA nevertheless incorporates the reasoning set forth in the
2009 light-duty motor vehicle greenhouse gas emission waiver at 74
FR 32744, 32778-32780 (July 8, 2009).
\73\ CCTA acknowledges that the California program to reduce
emissions from motor vehicles in fact predates the CAA. Here,
California's HD GHG tractor-trailer regulations are particularly
authorized under the California Global Warming Solutions Act of 2006
(AB 32), codified at California Health and Safety Code section
38560.5. See CARB Supplemental Comments, EPA-HQ-OAR-2013-0491-0054,
at 2-3.
---------------------------------------------------------------------------
CTA, also commenting on protectiveness, argues that California has
not quantified how the HD GHG Regulations would ``contribute to
attainment of ozone or fine particle standards in any meaningful way.''
\74\ But nothing in section 209(b)(1)(B) calls for California to
quantify specifically how its regulations would affect attainment of
the national ambient air quality standards in the state. As noted
above, California did quantify the projected reductions in
emissions.\75\ California further states that these emissions
reductions will help California in its efforts to attain national and
California air quality standards for particulate matter and ozone. As
stated before, the relevant question is whether California needs its
own motor vehicle pollution program to meet compelling and
extraordinary conditions, and not whether the specific standards that
are the subject of this waiver request are necessary to meet such
conditions.\76\
---------------------------------------------------------------------------
\74\ CTA, at 2. CTA's argument is perhaps more relevant to the
``protectiveness'' criterion discussed above, but CTA nevertheless
raised the issue under this prong instead, as to whether
California's program is necessary to meet compelling and
extraordinary conditions.
\75\ California Waiver Request Support Document, at 1; see also
CARB Staff Report: Initial Statement of Reasons for Proposed
Rulemaking (ISOR), October 2008, at ES5 and 56 (initially projecting
even higher CO2 and NOX emission reductions).
\76\ See 78 FR 2112, at 2125-26 (Jan. 9, 2013) (``EPA does not
look at whether the specific standards at issue are needed to meet
compelling and extraordinary conditions related to that air
pollutant.''); see also EPA's July 9, 2009 GHG Waiver Decision
wherein EPA rejected the suggested interpretation of section
209(b)(1)(B) as requiring a review of the specific need for
California's new motor vehicle greenhouse gas emission standards as
opposed to the traditional interpretation (need for the program as a
whole) applied to local or regional air pollution problems.
---------------------------------------------------------------------------
In another comment, CCTA argues that since EPA and the National
Highway Transportation Safety Administration (NHTSA) have embarked on
the Heavy-Duty National Program to regulate GHG emissions from heavy-
duty vehicles, California's program is no longer necessary.\77\
However, as EPA has explained in previous decisions, the existence of a
parallel or harmonized national program does not mean that California's
program is no longer necessary.\78\ Furthermore, EPA's GHG regulations
for heavy-duty vehicles apply to 2014 and later tractors. California's
HD GHG Regulations, on the other hand, extend further than EPA's
regulations to cover 2011 through 2013 tractors and also 2011 and later
trailers. The California HD GHG Regulations apply earlier than the
Heavy-Duty National Program, reflecting CARB's interest in further
action to address California's ongoing air quality conditions. The CCTA
presents no evidence that CARB's emissions regulation program is not
necessary to address the ``compelling and extraordinary conditions''
underlying the state's air pollution problems.
---------------------------------------------------------------------------
\77\ CCTA, at 6.
\78\ See, e.g., California State Motor Vehicle Pollution Control
Standards; Notice of Decision Granting a Waiver of Clean Air Act
Preemption for California's 2009 and Subsequent Model Year
Greenhouse Gas Emission Standards for New Motor Vehicles,'' 74 FR
32744 (July 8, 2009) (granting waiver despite the fact that EPA and
NHTSA had embarked on a parallel national program to reduce GHG
emissions from light duty vehicles).
---------------------------------------------------------------------------
In summary, EPA has not received any adverse comments suggesting
that California no longer needs a separate motor vehicle emissions
program to address the various conditions that led to serious and
unique air pollution problems in California. Based on the record, EPA
is unable to identify any change in circumstances or any evidence to
suggest that the conditions that California identified as giving rise
to serious air quality problems in California no longer exist.
Therefore, EPA cannot deny the waiver request here based on this
criterion.
D. Consistency With Section 202(a)
For the third and final criterion, EPA evaluates the program for
consistency with section 202(a) of the CAA. Under section 209(b)(1)(C)
of the CAA, EPA must deny California's waiver request if EPA finds that
California's standards and accompanying enforcement procedures are not
consistent with section 202(a). Section 202(a) requires that
regulations ``shall take effect after such period as the Administrator
finds necessary to permit the development and application of the
relevant technology, considering the cost of compliance within that
time.''
EPA has previously stated that the determination is limited to
whether those opposed to the waiver have met their burden of
establishing that California's standards are technologically
infeasible, or that California's test procedures impose requirements
inconsistent with the federal test procedure. Infeasibility is shown by
demonstrating that there is inadequate lead time to permit the
development of technology necessary to meet the HD GHG Regulations that
are subject to the waiver request, giving appropriate consideration to
the cost of
[[Page 46263]]
compliance within that time.\79\ California's accompanying enforcement
procedures would also be inconsistent with section 202(a) if the
federal and California test procedures conflicted, i.e., if
manufacturers would be unable to meet both the California and federal
test requirements with the same test vehicle.\80\
---------------------------------------------------------------------------
\79\ See, e.g., 38 F.R 30136 (November 1, 1973) and 40 FR 30311
(July 18, 1975).
\80\ See, e.g., 43 FR 32182 (July 25, 1978).
---------------------------------------------------------------------------
EPA has reviewed the information submitted to the record to
determine whether the parties opposing this waiver request have met
their burden to demonstrate that the HD GHG Regulations subject to the
waiver request are not consistent with section 202(a). Regarding test
procedure conflict, as CARB notes, there is no issue of test procedure
inconsistency because there are no analogous federal standards or
associated test procedures applicable to new 2011 through 2013 MY
sleeper tractors and new 2011 and subsequent MY dry-van and
refrigerated-van trailers that are pulled by such tractors.\81\ EPA has
received no adverse comment or evidence of test procedure
inconsistency. Therefore, EPA cannot deny the waiver on the grounds of
test procedure inconsistency.
---------------------------------------------------------------------------
\81\ California Waiver Request Support Document, at 22. EPA
notes that California's trailer requirements are based on EPA's
SmartWay program, including requiring implementation of EPA SmartWay
verified technologies (or their equivalents). However, as mentioned
above, EPA's SmartWay Program is a voluntary system, and does not
involve any federal standards or test procedures that could be
considered inconsistent with California's HD GHG Regulations.
---------------------------------------------------------------------------
EPA did not receive comments arguing that the HD GHG Regulations
were infeasible when reviewed purely as a matter of technology. The
Agency did, however, receive comment arguing that the cost of
compliance is excessive. In its comment, OOIDA states that the HD GHG
Regulations impose large expenses on thousands of small and financially
struggling carriers.\82\
---------------------------------------------------------------------------
\82\ OOIDA, at 3-4.
---------------------------------------------------------------------------
Regarding cost of compliance arguments such as OOIDA's, EPA's
previous waiver decisions indicate that cost of compliance as it
relates to lead time must be shown to be excessive in order to find
that California's standards are inconsistent with section 202(a).\83\
In MEMA I, the court addressed the cost of compliance issue in
reviewing a waiver decision. According to the court:
---------------------------------------------------------------------------
\83\ See, e.g., 78 FR 2134 (Jan. 9, 2013), 47 FR 7306, 7309
(Feb. 18, 1982), 43 FR 25735 (Jun. 17, 1978), and 46 FR 26371, 26373
(May 12, 1981).
Section 202's cost of compliance concern, juxtaposed as it is with
the requirement that the Administrator provide the requisite lead
time to allow technological developments, refers to the economic
costs of motor vehicle emission standards and accompanying
enforcement procedures. See S. Rep. No. 192, 89th Cong., 1st Sass.
5-8 (1965); H.R. Rep. No. 728 90th Cong., 1st Sass. 23 (1967),
reprinted in U.S. Code Cong. & Admin. News 1967, p. 1938. It relates
to the timing of a particular emission control regulation rather
than to its social implications. Congress wanted to avoid undue
economic disruption in the automotive manufacturing industry and
also sought to avoid doubling or tripling the cost of motor vehicles
to purchasers. It, therefore, requires that the emission control
regulations be technologically feasible within economic parameters.
Therein lies the intent of the cost of compliance requirement
---------------------------------------------------------------------------
(emphasis added).
OIDA does not submit sufficient evidence to meet the opponents'
burden of proof to show that the costs of compliance with the HD GHG
Regulations are so excessive as to constitute technological
infeasibility. For tractors, CARB estimated the average incremental
capital cost of compliance in 2008 to be $2,100 per tractor, which
could be recovered within 1.0 to 1.5 years through fuel savings.\84\
OOIDA does not submit any evidence contrary to these estimates for
tractors, and no evidence in the record refutes these estimates.
Therefore, EPA cannot find that the costs of compliance have been shown
to be excessive for tractors.
---------------------------------------------------------------------------
\84\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 21.
---------------------------------------------------------------------------
For trailers, OOIDA disagrees with CARB's estimate of total average
cost of compliance. CARB calculated the average incremental cost of
trailer compliance as $2,900 per trailer, plus an additional $125
annually for maintenance and reporting costs.\85\ CARB estimated that
the additional cost could be recovered within 18 months through reduced
fuel consumption (or, alternatively, through commanding higher rates
from freight carriers due to the improved fuel efficiency provided by
the aerodynamic trailers).\86\ CARB's cost estimate has since decreased
to an estimated $1,250 per trailer, which is expected to be recovered
in 11 months, on average, through fuel savings.\87\ OOIDA, on the other
hand, portrays the cost as $7,520-$9,325 per trailer,\88\ and says that
CARB's projected payback is greatly overstated.\89\
---------------------------------------------------------------------------
\85\ California Waiver Request Support Document, June 20, 2013,
EPA-HQ-OAR-2013-0491-0003, at 24-25; see also CARB Staff Report:
Initial Statement of Reasons for Proposed Rulemaking (ISOR), October
2008, at 33-42, 60-62.
\86\ California Waiver Request Support Document, at 25; ISOR, at
42.
\87\ ATA, at 5 (citing CARB estimates that were updated in
2012).
\88\ OOIDA, at 4.
\89\ OOIDA, at 5, 10, 14.
---------------------------------------------------------------------------
OOIDA does not provide evidence or data to support its higher cost
estimates for trailers. Instead, OOIDA relies upon an incorrect
portrayal of CARB's original estimates. OOIDA misstates CARB's cost
estimates in two ways. First, OOIDA's estimate incorrectly assumes that
a company must install all available types of trailer aerodynamic
devices (i.e., front, side, and rear fairings) simultaneously to
achieve compliance.\90\ However, this assumption overestimates likely
costs since the CARB-mandated levels of performance can be attained
with single devices or with paired combinations (e.g., front with side
fairing, rear with side fairing, or front and large rear fairing).\91\
Second, OOIDA incorrectly counts a $2,800 incremental cost for a
``SmartWay certified trailer'' as a separate and additional cost above
the cost of the aerodynamic technologies used, when instead the cost is
duplicative (i.e., the incremental cost for a SmartWay certified
trailer includes the cost of the aerodynamic technologies).\92\
Adjusted for these differences, OOIDA's cost figures are in relative
agreement with CARB's original cost projections (which CARB now
estimates are even lower). Therefore, there is no evidence showing
CARB's estimated cost of compliance for trailers to be excessive or
infeasible.\93\
---------------------------------------------------------------------------
\90\ Compare OOIDA, at 4, and California Waiver Request Support
Document, June 20, 2013, EPA-HQ-OAR-2013-0491-0003, at 24-25; see
also ISOR, at 20, 60, and CARB's Supplemental Comment, at 14.
\91\ 17 C.C.R. Sec. 95303(b) (requiring 2011 and newer trailers
to be either (i) a U.S. EPA Certified SmartWay Trailer or (ii)
equipped with verified SmartWay tires plus any combination or
aerodynamic technologies demonstrated to provide a specified level
of fuel savings (4% for refrigerated trailers, and 5% for dry van
trailers)). Specifications for EPA Certified SmartWay Trailer
configurations generally have a gap reducer on the trailer front or
tail, but not both. See U.S. EPA Designated SmartWay Mark: License
Agreement, Technical Specification & Requirements, and Graphics
Standards & Usage Guide for Tractor & Trailer Manufacturers, '' at 7
(publication available at http://www.epa.gov/smartway/documents/technology/get-designated/420-B11-013.pdf).
\92\ Compare OOIDA, at 4, and ISOR, at 33-42, 60-62; see also
CARB's Supplemental Comment, at 14.
\93\ California Waiver Request Support Document, at 24-25; ISOR,
at 33-42, 60-62.
---------------------------------------------------------------------------
OOIDA also submits various arguments about cost-effectiveness of
the HD GHG Regulations, asserting that the costs of the HD GHG
Regulations outweigh the emission benefits that CARB seeks to
attain.\94\ OOIDA argues that the HD GHG Regulations are especially not
cost-effective for trailers,
[[Page 46264]]
which OOIDA estimates are on the road only one-third as often as
tractors, and for motor carriers who only occasionally make trips into
California.\95\ OOIDA also notes that compliance with the HD GHG
Regulations will have negative side effects. For example, OOIDA states
that the required low-rolling-resistance (LRR) tires will have a
shorter life span and be less safe than regular tires, causing
increased traffic backups or use of tire chains (and thus increased
fuel usage) in inclement weather. OOIDA also argues that the HD GHG
Regulations will cause reduced freight capacity and revenue due to the
added weight of the required aerodynamic equipment.\96\ OOIDA does not
provide any supporting evidence to verify or quantify these potential
additional costs. Finally, OOIDA and other commenters suggest that many
tractors do not obtain the expected fuel savings due to application-
specific factors such as typical speeds and miles travelled.\97\
However, they have not provided any evidence supporting a significantly
different average cost or payback time.
---------------------------------------------------------------------------
\94\ OOIDA, at 4.
\95\ OOIDA, at 5, 14.
\96\ OOIDA, at 9-10.
\97\ Id.
---------------------------------------------------------------------------
CARB disputes OOIDA's assertions about shorter life spans or
difficulties in inclement weather with LRR tires, stating that there is
no evidence to support OOIDA's claims.\98\ CARB additionally states
that reduced freight capacity due to weight of the aerodynamic
equipment would be relatively insignificant for a heavy duty vehicle,
with the average weight of a set of side skirts being between 150 and
350 lbs.\99\
---------------------------------------------------------------------------
\98\ CARB's Supplemental Comment, at 15-16.
\99\ CARB's Supplemental Comment, at 16.
---------------------------------------------------------------------------
In the context of a section 209(b) waiver review, EPA generally
does not consider arguments that a regulation will result in only
marginal air quality improvements, or that the expected air quality
benefits will be outweighed by the costs, to be legally pertinent in
evaluating cost-of-compliance.\100\ EPA has stated that ``[t]he
appropriate level of cost-effectiveness is a policy decision of
California,'' and EPA has historically deferred to California on these
policy decisions.\101\ In addition, the costs of compliance with the HD
Regulations are expected to be quickly recovered through fuel savings,
as stated above.
---------------------------------------------------------------------------
\100\ See 78 FR 2134 (Jan. 9, 2013).
\101\ Id.
---------------------------------------------------------------------------
In summary, the evidence that has been presented is insufficient to
show that the HD GHG Regulations are technologically infeasible,
considering costs of compliance. Indeed, such a finding is particularly
unlikely where the average lifetime fuel savings created by compliance
with the trailer regulations are expected to exceed the projected cost
of compliance. In addition, no evidence has been presented showing that
California's test procedures impose requirements inconsistent with
federal test procedures. Therefore, the waiver opponents have presented
no evidence demonstrating that the HD GHG Regulations are not
consistent with Section 202(a).
E. Other Issues Raised Outside of the Scope of This Review
a. Constitutional Issues
Some of the commenters, including the CCTA and OOIDA, argue that
the HD GHG Regulations violate the commerce clause of the U.S.
Constitution in that the HD GHG Regulations will have the effect of
disproportionately and unfairly burdening out-of-state carriers.\102\
For example, CCTA argues that exemptions in the HD GHG Regulations for
local-haul, drayage, and short-haul tractors and trailers will result
in the exemption of most California in-state motor carriers, but
virtually no out-of-state motor carriers. The comments further point
out that the uneven impact does not correlate closely, if at all, with
expected GHG emissions from the respective vehicles.\103\ OOIDA argues
that the HD GHG Regulations unfairly burden out-of-state carriers who
contribute less in emissions than exempted in-state motor
carriers.\104\
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\102\ CCTA, at 3-5; OOIDA, at 3, 10-17.
\103\ CCTA, at 4-5; OOIDA, at 6-8. A disproportionate impact on
out-of-state carriers is supported by CARB's data as well. See,
e.g., ISOR, at 12-15 (projecting only 37,009 impacted MY 2010
tractors and 92,523 impacted MY 2010 trailers in California, versus
398,677 impacted MY 2010 tractors and 996,693 impacted MY 2010
trailers outside of California, Thus, over 90% of the cost impact of
California's Regulations is expected to occur outside of
California.).
\104\ OOIDA, at 3, 8.
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However, commerce clause issues are beyond the scope of this
review. As stated in MEMA I, ``[t]he waiver proceeding produces a forum
ill-suited to the resolution of constitutional claims.'' \105\
Constitutional challenges to the HD GHG Regulations are more
appropriately addressed by a legal challenge directly against the
state. Moreover, EPA has consistently refrained from reviewing
California's requests for waivers based on criteria that extend beyond
those set forth in section 209(b) of the CAA,\106\ and courts have
confirmed that EPA could not deny a waiver based on such additional
criteria. ``If EPA concludes that California's standards [meet section
209(b)], it is obligated to approve California's waiver application.''
\107\ Therefore, EPA cannot find this issue to be a proper ground for
denial of California's waiver request.
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\105\ MEMA I, supra, 627 F.2d at 1114-1120; See also Motor &
Equipment Mfrs Ass'n v. Nichols, 142 F.3d 449, 462-463, 466-467
(D.C. Cir. 1998).
\106\ See 78 FR 2112, 2145 (January 9, 2013) and 74 FR 3030
(January 16, 2009).
\107\ Motor & Equipment Mfrs Ass'n v. Nichols, 142 F.3d 449 at
463.
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b. Conflict With the Federal Aviation Administration Authorization Act
CCTA and OOIDA also argue that the HD GHG Regulations violate the
Federal Aviation Administration Authorization Act (FAAAA) \108\ on
grounds that the requirements directly affect the prices, routes, and
services of motor carriers.\109\ However, as discussed above, the
criteria EPA must apply in deciding whether to grant or deny a waiver
are specifically prescribed in section 209(b). Conflict with the FAAAA
is not one of those criteria. Thus, questions about whether
California's HD GHG Regulations comply with the FAAAA are outside of
the proper scope of review under section 209(b) and EPA cannot deny a
waiver request under section 209(b) based on this issue. Therefore, EPA
cannot find this issue to be a proper ground for denial of California's
waiver request.
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\108\ CCTA, at 3; OOIDA, at 17.
\109\ CCTA, at 3.
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c. Whether the HD GHG Regulations Improperly Regulate Fuel Economy
CCTA argues that the California HD GHG Regulations impermissibly
regulate fuel economy, and that the authority to regulate fuel economy
resides solely with the National Highway Traffic Safety Administration
(NHTSA).\110\ Again, however, as with the commerce clause and FAAAA
issues, the Agency has previously determined that this issue is outside
of the proper scope of review since it is not among the criteria listed
under section 209(b).\111\ As a result, EPA cannot deny a waiver
request based on whether California's HD GHG Regulations regulate fuel
economy. Therefore, EPA cannot find this issue to be a proper
[[Page 46265]]
ground for denial of California's waiver request.
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\110\ CCTA, at 2-3. Presumably, CTA is arguing that the Energy
Policy and Conservation Act (EPCA) preempts the California HD GHG
Regulations to the extent that they regulate fuel economy.
\111\ 74 FR 32744, 32782-83 (July 8, 2009) (``As EPA has stated
on numerous occasions, section 209(b) of the Clean Air Act limits
our authority to deny California's requests for waivers to the three
criteria therein, and EPA has refrained from denying California's
request for waivers based on any other criteria.'').
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d. Effects of Delay and Previous Non-Enforcement of the Regulations
Some commenters, including the ATA and CTA, criticize California
for not enforcing the HD GHG Regulations for nearly four years after
implementation. They argue that the non-enforcement has increased
carrier costs and has disadvantaged carriers who attempted to comply
with the HD GHG Regulations on time.\112\ ATA further asks EPA to
consider in its waiver decisions whether California has adequate
enforcement resources to actually achieve the projected levels of
compliance and emissions benefits that CARB projects when it makes its
waiver requests.\113\ California responds that CTA's and ATA's
assertions on enforcement issues are not issues properly considered in
this decision.\114\
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\112\ ATA, at 6; CTA, at 2.
\113\ ATA, at 6.
\114\ CARB's Supplemental Comment, at 20.
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As discussed above, EPA may only deny waiver requests that are
based on criteria listed under section 209(b), and both delayed
enforcement and previous non-enforcement of prior regulations are not
among them. Thus, these issues are outside of the proper scope of
review because they are not among the criteria listed under section
209(b). Therefore, EPA cannot find these issues to be a proper ground
for denial of California's waiver request.
e. Applicability of the Regulations to Already-Purchased Equipment
Finally, ATA expresses concern about delays in the submission and
approval of California waivers and authorizations, and ATA asks EPA to
determine whether it is ``valid'' for the HD GHG Regulations to apply
to equipment that has already been purchased and is in operation.''
\115\ However, ATA does not show how this concern is relevant to the
criteria that EPA must evaluate related to California's request for a
waiver under section 209(b).
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\115\ ATA, at 6.
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As previously explained, EPA may only deny waiver requests that are
based on criteria listed under section 209(b), and EPA has consistently
refrained from reviewing California's requests for waivers and
authorizations based on criteria that extend beyond the criteria of
section 209(b) of the CAA. Therefore, EPA cannot find this issue to be
a proper ground for denial of California's waiver request.
IV. Decision
The Administrator has delegated the authority to grant California
section 209(b) waivers to the Assistant Administrator for Air and
Radiation. After evaluating CARB's amendments to the HD GHG Regulations
described above and CARB's submissions for EPA review, EPA is hereby
granting a waiver for California's Tractor-Trailer Greenhouse Gas
Regulations (``HD GHG Regulations'') for new 2011 through 2013 MY Class
8 tractors equipped with integrated sleeper berths (sleeper-cab
tractors) and to new 2011 and subsequent MY dry-van and refrigerated-
van trailers that are pulled by such tractors on California highways.
This decision will affect not only persons in California, but also
manufacturers and operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(b) waiver has been
granted under section 177 of the Act if certain criteria are met, this
decision would also affect those states and those persons in such
states. For these reasons, EPA determines and finds that this is a
final action of national applicability, and also a final action of
nationwide scope or effect 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 October 6, 2014. Judicial review of this final action may not
be obtained in subsequent enforcement proceedings, pursuant to section
307(b)(2) of the Act.
V. Statutory and Executive Order Reviews
As with past waiver and authorization decisions, this action is not
a rule as defined by Executive Order 12866. Therefore, it is exempt
from review by the Office of Management and Budget as required for
rules and regulations by Executive Order 12866.
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.
Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, does not apply because this action is not a rule for purposes of
5 U.S.C. 804(3).
Dated: July 30, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2014-18742 Filed 8-6-14; 8:45 am]
BILLING CODE 6560-50-P