California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Emissions From 2014 and Subsequent Model Year Medium- and Heavy-Duty Engines and Vehicles; Notice of Decision |
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Janet G. McCabe
Environmental Protection Agency
29 December 2016
[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Notices]
[Pages 95982-95987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31646]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2016-0179; FRL-9957-70-OAR]
California State Motor Vehicle Pollution Control Standards;
Greenhouse Gas Emissions From 2014 and Subsequent Model Year Medium-
and Heavy-Duty Engines and Vehicles; Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision.
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SUMMARY: The Environmental Protection Agency (EPA) is granting the
California Air Resources Board's (``CARB's'') request for a waiver of
Clean Air Act preemption for its greenhouse gas (``GHG'') emission
regulation for the new 2014 and subsequent model year on-road medium-
and heavy-duty engines and vehicles (``California Phase 1 GHG
Regulation'') adopted in 2011. This regulation establishes requirements
applicable to new motor vehicles with a gross vehicle weight rating
exceeding 8,500 pounds and engines that power such motor vehicles,
except for medium-duty passenger vehicles that are subject to
California's Low Emission Vehicle Program. This regulation generally
aligns California's GHG emission standards and test procedures with the
federal GHG emission standards and test procedures that EPA
[[Page 95983]]
adopted in 2011. A deemed-to-comply provision is included in CARB's
regulation whereby manufacturers may demonstrate compliance with
California's Phase 1 GHG Regulation by complying with EPA's Phase 1
regulation. This decision is issued under the authority of the Clean
Air Act (``CAA'' or ``the Act'').
DATES: Petitions for review must be filed by February 27, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2016-0179. 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-2016-0179 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 Dickinson, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
1200 Pennsylvania Ave. NW., Telephone: (202) 343-9256. Email:
dickinson.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
California's Phase 1 GHG Regulation complements CARB's existing
Tractor-Trailer GHG regulation that was initially adopted in December
2008 and subsequently amended in 2010 and 2012. EPA granted California
a waiver for the Tractor-Trailer GHG regulation in 2014.\1\ The
Tractor-Trailer GHG regulation requires new 2011 and subsequent model
year (``MY'') sleeper-cab tractors that haul 53-foot or longer box-type
trailers on California highways, and 53-foot and longer box-type
trailers operating on California highways to be equipped with U.S. EPA
SmartWay approved aerodynamic technologies and low-rolling resistance
tires. California's Phase 1 GHG Regulation establishes emission
standards for tractors that are also subject to the requirements of
CARB's Tractor-Trailer GHG regulation. CARB amended the Tractor-Trailer
GHG regulation in conjunction with its adoption of the Phase 1 GHG
Regulation to make California's GHG requirements for new medium- and
heavy-duty engines and vehicles consistent with corresponding
requirements of EPA's Phase 1 GHG regulation.\2\ The California Phase 1
GHG Regulation establishes GHG emission standards and associated test
procedures for new 2014 and subsequent MY diesel-fueled medium- and
heavy-duty engines and for new 2016 and subsequent MY gasoline-fueled
medium- and heavy-duty engines used in combination tractors and
vocational vehicles that are identical to the corresponding GHG
emission standards and associated test procedures for diesel and
gasoline-fueled heavy-duty engines in EPA's Phase 1 GHG regulation. The
California Phase 1 GHG Regulation also contains ``deemed to comply''
provisions that allow engine manufacturers to demonstrate that 2014
through 2022 model year medium- and heavy-duty engines comply with
California's GHG emission standards by showing compliance with EPA's
Phase 1 regulation, i.e., submitting to CARB the engine family's
Certificate of Conformity issued by EPA.\3\
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\1\ 79 FR 46256 (August 7, 2014).
\2\ 76 FR 57106 (September 15, 2011).
\3\ See ``California Exhaust Emission Standards and Test
Procedures for 2004 and Subsequent Model Heavy-Duty Diesel-Engines
and Vehicles'', Part 1036, Subpart B, section 1036.108, and
``California Exhaust Emission Standards and Test Procedures for 2004
and Subsequent Model Heavy-Duty Otto-Cycle Engines and Vehicles'',
Part 1036, Subpart B, section 1036.108. See also ``California
Greenhouse Gas Exhaust Emission Standards and Test Procedures for
2014 and Subsequent Model Heavy-Duty Vehicles'', Part 1037, Subpart
B, section 1037.101(b)(2).
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By letter dated January 29, 2016,\4\ CARB submitted to EPA a
request for a waiver of the preemption found at section 209(a) of Clean
Air Act, 42 U.S.C. 7543(a), for the California Phase 1 GHG Regulation.
CARB's submission provides analysis and evidence to support its finding
that the California Phase 1 GHG Regulation satisfies the CAA section
209(b) criteria and that a waiver of preemption should be granted.
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\4\ CARB, ``In the Matter of California's Request for Waiver
Pursuant to Clean Air Act Section 209(b) for California's Greenhouse
Gas Regulation for Medium- and heavy-Duty Engines and Vehicles,''
January 29, 2016 (``California Waiver Request Support Document'')
See www.regulations.gov Web site, docket number EPA-HQ-OAR-2016-
0179-0003.
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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.\5\
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\5\ 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.\6\ 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.\7\
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\6\ 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).
\7\ CAA Sec. 209(b)(1). 42 U.S.C. 7543(b)(1).
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[[Page 95984]]
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 are not specified in the statute as grounds for
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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.\8\
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\8\ ``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.\9\ ``[T]he
statute does not provide for any probing substantive review of the
California standards by federal officials.'' Ford Motor Co. v. EPA, 606
F.2d 1293, 1300 (D.C. Cir. 1979). 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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\9\ 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.\10\
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\10\ 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.' '' \11\ Therefore, the
Administrator's burden is to act ``reasonably.'' \12\
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\11\ Id. at 1126.
\12\ 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.\13\
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\13\ 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 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.'' \14\
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\14\ 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.\15\ 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.\16\
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\15\ Id.
\16\ 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.''
\17\
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\17\ 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.\18\
\18\ 40 FR 23102, 23103-04 (May 28, 1975).
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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.\19\ This interpretation is supported by relevant
discussion in the House Committee
[[Page 95985]]
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 protect the health
of its citizens and the public welfare.\20\
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\19\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13,
1993).
\20\ 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 9, 2016, EPA published a notice of opportunity for public
hearing and comment on California's waiver request. In that notice, EPA
requested comments on CARB's request for a waiver for the California
Phase 1 GHG Regulation under the following three criteria: Whether (a)
California's determination that its motor vehicle emissions 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 State 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.
EPA received no comments and no requests for a public hearing.
Consequently, EPA did not hold a public hearing.
III. Discussion
A. Whether California's Protectiveness Determination Was Arbitrary and
Capricious
As stated in the background, section 209(b)(1)(A) of the Act sets
forth the first of the three criteria governing a new waiver request--
whether California was arbitrary and capricious in its determination
that its motor vehicle emissions 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.\21\
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\21\ 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).
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CARB did make a protectiveness determination in adopting the
California Phase 1 GHG Regulation, and found that the California Phase
1 GHG Regulation 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.\22\ CARB notes that its
rulemaking action established California GHG emission standards for
medium- and heavy-duty vehicles that are identical to the corresponding
GHG emission standards for heavy-duty engines and vehicles in EPA's
Phase 1 GHG regulation, and the regulation further contains ``deemed to
comply'' provisions that allow manufacturers to demonstrate 2014
through 2022 model year medium- and heavy-duty engines and vehicles
comply with California GHG emission standards by providing CARB the
same emissions data and related information required to certify the
engine or vehicle to EPA's Phase 1 GHG regulations' requirements.\23\
In addition, CARB notes that minor differences remain between the EPA
and CARB programs that provide further assurances that California's
program is, in the aggregate, at least as protective as the federal
program as applied to the categories of affected medium- and heavy-duty
engines and vehicles.\24\ EPA received no comments and EPA is not
otherwise aware of evidence suggesting that CARB's protectiveness
determination was unreasonable.
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\22\ California Waiver Request Support Document at 30-31, and
Attachment 11 (CARB Resolution 13-50, dated December 12, 2013, at
EPA-HQ-OAR-2016-0179-0012). The CARB Board expressly declared in
Resolution 13-50 that ``BE IT FURTHER RESOLVED that the Board hereby
determines that the regulations adopted herein will not cause
California motor vehicle emission standards, in the aggregate, to be
less protective of the public health and welfare than applicable
federal standards.
\23\ Id. ``Phase 1 Certified Tractor'' means a tractor that has
been certified in accordance with either the Greenhouse Gas
Emissions Standards and Fuel Efficiency Standards for Medium- and
Heavy-Duty Engines and Vehicles, as adopted by the US EPA (76 FR
57106 (September 15, 2011)); or the Greenhouse Gas Emission
Requirements for New 2014 and Subsequent Model Heavy-Duty Vehicles,
as adopted by the California Air Resources Board, sections 95660 to
95664, Subarticle 12, title 17, California Code of Regulations
95302.
\24\ Id. For example, CARB explains that California's Phase 1
GHG Regulation does not fully incorporate the federal definition of
``urban bus'' in order to preserve California's existing requirement
that urban buses be powered by heavy heavy-duty diesel engines (HHD)
for which an EPA waiver has already been granted (78 FR 44112 (July
23, 2013), and that the useful life period for HHD diesel engines
exceeds the federal useful life period for light heavy-duty and
medium heavy-duty diesel engines.
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As it is clear that California's standards are at least as
protective of public health and welfare as applicable federal
standards, and that CARB's deemed to comply provision together with the
unique aspects of the California Phase 1 GHG Regulation make
California's standards even more protective, EPA finds that
California's protectiveness determination is not arbitrary and
capricious.
B. 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 State standards
to meet compelling and extraordinary conditions.'' EPA's inquiry under
this second criterion has traditionally been to determine whether
California needs its own motor vehicle emission control program (i.e.
set of standards) to meet compelling and extraordinary conditions, and
not whether the specific standards (the California Phase 1 GHG
Regulation) that are the subject of the waiver request are necessary to
meet such conditions.\25\ In recent waiver actions, EPA again examined
the language of section 209(b)(1)(B) and reiterated this longstanding
traditional interpretation as the appropriate approach for analyzing
the need for ``such State standards'' to meet ``compelling and
extraordinary conditions.'' \26\
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\25\ 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.
\26\ 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 motor
vehicle emission program as a whole) applied to local or regional
air pollution problems. See also 79 FR 46256, 46261 (August 7,
2014).
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In conjunction with the California Phase 1 GHG Regulation, CARB
determined in Resolution 13-50 that California continues to need its
own motor vehicle program to meet serious
[[Page 95986]]
ongoing air pollution problems.\27\ CARB asserted that ``The
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. EPA has long
confirmed CARB's judgment, on behalf of the State of California, on
this matter.'' \28\ In enacting the California Global Warming Solutions
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Act of 2006, the Legislature found and declared that:
Global warming poses a serious threat to the economic well-
being, public health, natural resources, and the environment of
California. The potential adverse impacts of global warming include
the exacerbation of air quality problems, a reduction in the quality
and supply of water to the state from the Sierra snowpack, a rise in
sea levels resulting in the displacement of thousands of coastal
businesses and residences, damage to the marine ecosystems and the
natural environment, and an increase in the incidences of infectious
diseases, asthma, and other health-related problems.\29\
\27\ California Waiver Request Support Document, at 31,
referencing Resolution 13-50, dated December 12, 2013 (see EPA-HQ-
OAR-2016-0179-0012). Resolution 13-50 also states ``WHEREAS, heavy-
duty trucks, buses, and motor homes emitted 23 percent of greenhouse
gas (GHG) emissions from on-road vehicles and 8 percent of GHG
emissions from all sources in California in 2010. Resolution 13-50
also states ``WHEREAS, in recognition of the devastating impacts of
climate change emissions on California, Governor Schwarzenegger, in
June 2005, enacted Executive Order S-3-05 which established the
following GHG emission targets: By 2010, reduce GHG emissions to
2000 levels; by 2020, reduce GHG emissions to 1990 levels; and by
2050, reduce GHG emissions 80 percent below 1990 levels. In
addition, the South Coast and San Joaquin Valley air basins continue
to experience some of the worst air quality in the nation, and many
areas in California continue to be in nonattainment for the national
ambient air quality standards for particulate matter and ozone (81
FR 78149, 78153, November 7, 2016). To address this issue, for
example, California's heavy-duty program also includes an optional
low NOX provision, and CARB states ``Because the proposed
regulation for Optional Low NOX emissions standards is
optional, the emission benefits from that proposal will depend on
the level of participation by engine manufacturers. Staff estimated
NOX emission benefits for two different scenarios based
on low and high participation rates from manufacturers and estimated
NOX emission benefits of 0.6 to 1.2 tons per day (TPD)
statewide in 2020, and 3.3 to 6.9 TPD in 2035.'' CARB Initial
Statement of Reasons, December 12, 2013, EPA-HQ-OAR-2016-0179-0003.
\28\ California Waiver Request Support Document, at 33
(referencing 70 FR 50322, 50323 (August 26, 2005); 74 FR 32744,
32762-763 (July 9, 2009); 79 FR 46256, 46262 (August 7, 2014).
\29\ Id. at 33. The Global Warming Solutions Act also sets for
the California Legislature's finding and declaration that
``Continuing to reduce greenhouse gas emissions is critical for the
protection of all areas of the state, but especially for the state's
most disadvantaged communities, as those communities are affected
first, and, most frequently, by the adverse impacts of climate
change, including an increased frequency of extreme weather events,
such as drought, heat, and flooding. The state's most disadvantaged
communities also are disproportionately impacted by the deleterious
effects of climate change on public health.'' In addition, on April
29, 2015, California Governor Edmund Brown issued Executive Order B-
30-15 which states in part ``WHEREAS climate change poses an ever-
growing threat to the well-being, public health, natural resources,
economy, and the environment of California, including loss of
snowpack, drought, sea level rise, more frequent and intense
wildfires, heat waves, more severe smog, and harm to natural and
working lands, and these effects are already being felt in the
state.''
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There has been no evidence submitted to indicate that California's
compelling and extraordinary conditions do not continue to exist.
California, particularly in 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.\30\ As California has previously stated, ``nothing in
[California's unique geographic and climatic] conditions has changed to
warrant a change in this determination.'' \31\ EPA agrees that the
fundamental conditions that cause California's serious air pollution
problems continue to exist.\32\ Therefore, EPA affirms California's
need for its new motor vehicle emissions program as a whole, to meet
compelling and extraordinary conditions. In addition, EPA notes the
continued adverse impacts of California's changing climate (e.g. the
increase in wildfires, increased threats to coastal developments and
ecosystems, etc.).\33\
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\30\ 74 FR 32744, 32762-63 (July 8, 2009).
\31\ 74 FR 32744, 32762 (July 8, 2009); 76 FR 77515, 77518
(December 13, 2011).
\32\ In addition to the variety of human health impacts
associated with high air temperatures (e.g., heat stroke and
dehydration, and effects on people's cardiovascular, respiratory,
and nervous systems), warming can also increase the formation of
ground-level ozone, a component of smog that can contribute to
respiratory problems. See ``What Climate Change Means for
California,'' August 2016, EPA 430-F-16-007 at https://www.epa.gov/sites/production/files/2016-09/documents/climate-change-ca.pdf.
\33\ Id.
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Based on the record before us, including EPA's prior waiver
decisions, EPA is unable to identify any change in 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 find that California does not need its
state standards, including greenhouse gas emission standards, to meet
compelling and extraordinary conditions in California.
C. 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 would be
shown here by demonstrating that there is inadequate lead time to
permit the development of technology necessary to meet the California
Phase 1 GHG Regulation, giving appropriate consideration to the cost of
compliance within that time.\34\ 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.\35\
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\34\ See, e.g., 38 F.R 30136 (November 1, 1973) and 40 FR 30311
(July 18, 1975).
\35\ See, e.g., 43 FR 32182 (July 25, 1978).
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Regarding test procedure conflict, CARB notes that it is not aware
of any instances in which a manufacturer is precluded from conducting
one set of tests on a heavy-duty engine or a heavy-duty vehicle to
determine compliance with both California and federal GHG requirements.
The regulation's ``deemed to comply'' provisions ensure that engine and
vehicle manufacturers can use federal test results to demonstrate
compliance with California's GHG emission standards through the 2022
model year. CARB also notes that no test procedure inconsistencies
exist for those manufactures that elect not to utilize the deemed to
comply provisions, or for 2023 and subsequent model year engines and
vehicles because the California GHG emission standards and associated
test procedures for new medium- and heavy-duty engines and new medium-
and heavy-duty vehicles are identical to corresponding federal GHG
emission standards and test procedures.\36\ For the reasons set forth
above, and because
[[Page 95987]]
there is no evidence in the record or other information that EPA is
aware of, EPA cannot find that CARB's Phase I GHG Regulation is
inconsistent with section 202(a) based upon test procedure
inconsistency.
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\36\ California Waiver Support Document at 44.
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In addition, EPA did not receive any comments arguing that the
California Phase 1 GHG Regulation was technologically infeasible or
that the cost of compliance would be excessive, such that California's
standards might be inconsistent with section 202(a).\37\ In EPA's
review of CARB's Phase 1 GHG Regulation, we likewise cannot identify
any requirements that appear technologically infeasible or excessively
expensive for manufacturers to implement within the timeframes
provided.\38\ EPA therefore cannot find that the California Phase 1 GHG
Regulation does not provide adequate lead time or is otherwise not
technically feasible.
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\37\ 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).
\38\ California Waiver Support Document at 34-43. For example,
both CARB and EPA identified a host of technologies suitable for
compliance with medium- and heavy-duty diesel engine CO2
standards, and for engines in combination tractors and vocational
vehicles. In addition, CARB and EPA identified a variety of
compliance strategy technologies for heavy-duty gasoline engine
CO2 standards. EPA and CARB also identified a number of
commercially available technologies that will enable 2014 through
2018 MY heavy-duty pick-up truck and van (``PUV'') GHG emission
standards.
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We therefore cannot find that the California Phase 1 GHG Regulation
that we analyzed under the waiver criteria is inconsistent with section
202(a).
Having found that the California Phase 1 GHG Regulation satisfies
each of the criteria for a waiver, and having received no evidence to
contradict this finding, we cannot deny a waiver for the regulation.
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 California Phase 1 GHG Regulation
and CARB's submissions for EPA review, EPA is hereby granting a waiver
for the California Phase 1 GHG Regulation.
This decision will affect persons in California and those
manufacturers and/or owners/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 February 27, 2017. 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: December 22, 2016.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2016-31646 Filed 12-28-16; 8:45 am]
BILLING CODE 6560-50-P