California State Motor Vehicle Pollution Control Standards; California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete Vehicle Regulations; Notice of Decision |
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Gina McCarthy
November 17, 2010
[Federal Register: November 17, 2010 (Volume 75, Number 221)]
[Notices]
[Page 70237-70241]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no10-80]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9228-3]
California State Motor Vehicle Pollution Control Standards;
California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete
Vehicle Regulations; Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Decision Granting a Waiver of California's Heavy-Duty
On-Highway Otto-Cycle Engines and Incomplete Vehicle Regulations.
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SUMMARY: The Environmental Protection Agency (EPA), pursuant to section
209(b) of the Clean Air Act (Act), is granting California its request
for a waiver of Clean Air Act preemption for three sets of amendments
applicable to its heavy-duty Otto-cycle engines and incomplete vehicle
regulations for the 2004, 2005 through 2007, and 2008 and subsequent
model year regulations. These amendments align each of California's
exhaust emission standards and test procedures with its federal
counterpart in an effort to streamline and harmonize the California and
federal programs.
ADDRESSES: Materials relevant to this decision are contained in Docket
ID No. EPA-HQ-OAR-2006-0018. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Air and Radiation Docket in the EPA Headquarters
Library, EPA West Building, Room 3334, located at 1301 Constitution
Avenue, NW., Washington, DC. The Public Reading Room is open to the
public on all federal government work days from 8:30 a.m. to 4:30 p.m.;
generally, it is open Monday through Friday, excluding holidays. The
telephone number for the Reading Room is (202) 566-1744. The Air and
Radiation Docket and Information Center's Web site is http://
www.epa.gov/oar/docket.html. The electronic mail (e-mail) address for
the Air and Radiation Docket is: a-and-r-Docket@epa.gov, the telephone
number is (202) 566-1742, and the fax number is (202) 566-9744. An
electronic version of the public docket is available through the
federal government's electronic public docket and comment system. You
may access EPA dockets at http://www.regulations.gov. After opening the
http://www.regulations.gov Web site, enter EPA-HQ-OAR-2006-0018 in the
``Enter Keyword or ID'' fill-in box to view documents in the record of
CARB's amendments to its heavy-duty Otto-cycle engines and incomplete
vehicle regulations. Although a part of the official docket, the public
docket does not include Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
EPA's Office of Transportation and Air Quality also maintains a Web
page that contains general information on its review of California
waiver requests. Included on that page are links to several of the
prior waiver Federal Register notices which are cited throughout
today's notice; the page can be accessed at http://www.epa.gov/otaq/
cafr.htm.
[[Page 70238]]
FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and
Innovative Strategies Division, U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone:
(202) 343-9256. Fax: (202) 343-2800. E-mail: dickinson.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. CARB's 2000 and 2002 Amendments
On December 7, 2005, the California Air Resources Board (``CARB'')
submitted a request to the Environmental Protection Agency (``EPA'')
for confirmation that CARB's amendments, adopted in 2000 and 2002, to
the California heavy-duty Otto-cycle regulations for 2004, 2005-2007,
and 2008 and subsequent model years (MYs) are within-the-scope of
previously granted waivers of preemption under section 209(b) of the
Act, 42 U.S.C. 7543(b). On June 15, 2006, CARB supplemented its
original request of December 7, 2005, with a letter adding to its
rationale and additionally requesting, in the alternative, for EPA to
consider the request as a new waiver of preemption under section 209(b)
of the Act.
EPA first granted waivers for the alignment of California's heavy-
duty engine and vehicle emission standards and test procedures in 1988,
separately for the diesel engine standards and the gasoline engine
standards.\1\ Since the 1988 waivers, CARB has requested and received
confirmation that various amendments to the standards and test
procedures for the current CARB categories of heavy-duty vehicles are
within-the-scope of the previously granted waivers. Significant among
these, in 1997 CARB requested a within-the-scope determination for a
revision to its heavy-duty engine emission standards for NOX
and PM for both diesel and Otto-cycle (gasoline) engines applicable in
the 1998 and subsequent model years.\2\ EPA approved the request on
October 6, 2004.\3\
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\1\ 52 FR 20777 (June 3, 1987), 53 FR 7021 (March 4, 1988).
\2\ 53 FR 6197 (March 1, 1988) (Diesel) and 53 FR 7022 (March 4,
1988) (Otto-cycle).
\3\ 69 FR 59920 (October 6, 2004).
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CARB's current request concerns its amendments to the exhaust
emission standards for heavy-duty Otto-cycle engines and vehicles above
8,500 pounds gross vehicle weight rating (GVWR) for the 2004, 2005
through 2007, and the 2008 and subsequent MYs. California amended its
heavy-duty Otto-cycle regulations through two separate CARB
rulemakings: one in 2000 (hereinafter the ``2000 amendments'') and the
other in 2002 (hereinafter the ``2002 amendments'').\4\ Both
rulemakings followed EPA rulemakings increasing the stringency of
federal emission standards, which surpassed the stringency of
California's previous requirements for 2005 and all subsequent model
years. Therefore, CARB believes its effort to harmonize standards with
the federal heavy-duty Otto-cycle engine standards allows manufacturers
to make one vehicle to meet both California and federal standards and
participate in the federal averaging, banking, and trading program
without compromising the stringency or efficacy of its emission
standards.\5\
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\4\ The 2004/5 Standards were formally adopted December 27,
2000, by Executive Order G-00-069 (CARB, Item 7). The 2008 Standards
were formally adopted December 12, 2002, by Executive Order G-03-016
issued September 5, 2003. (CARB, Item 20).
\5\ California Air Resources Board Request for Confirmation that
Amendments Are Within the Scope of Previous Waivers of Preemption
Under Clean Air Act Section 209(b), December 7, 2005, pg. 2.
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CARB's 2000 and 2002 amendments affect the heavy-duty Otto-cycle
standards for oxides of nitrogen (NOX), non-methane
hydrocarbons plus oxides of nitrogen (NMHC+NOX), and carbon
monoxide (CO). Specifically, the amendments: (1) Harmonize the
California and federal MY 2005 and beyond NOX standards at
1.0 grams per brake horsepower-hour (g/bhp-hr); (2) align the
California and federal standards for 0.14 g/bhp-hr for NMHC, 0.20 g/
bhp-hr for NOX, 14.4 g/bhp-hr for CO; and (3) create a new
0.01 g/bhp-hr standard for particulate matter (PM). These changes amend
title 13, California Code of Regulations (CCR), section 1956.8 \6\ and
the incorporated amended ``California Exhaust Emission Standards and
Test Procedures for 1987 through 2003 Model Heavy-Duty Otto-cycle
Engines and Vehicles,'' and the adoption and the amendments to the
incorporated in ``California Exhaust Emission Standards and Test
Procedures for 2004 and Subsequent Model Heavy-Duty Otto-cycle
Engines.''
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\6\ See California Air Resources Board Request for Confirmation
that Amendments Are Within the Scope of Previous Waivers of
Preemption Under Clean Air Act Section 209(b), December 7, 2005, pg.
2.
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B. Clean Air Act Waivers of Preemption
Section 209(a) of the Act preempts states and local governments
from setting emission standards for new motor vehicles and engines; it
provides:
No State or any political subdivision thereof shall adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines subject to this
part. No state shall require certification, inspection or any other
approval relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent to the
initial retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.
Through operation of section 209(b) of the Act, California is able to
seek and receive a waiver of section 209(a)'s preemption. If certain
criteria are met, section 209(b) (1) of the Act requires the
Administrator, after notice and opportunity for public hearing, to
waive application of the prohibitions of section 209(a). Section 209(b)
(1) only allows a waiver to be granted for a State that had adopted
standards (other than crankcase emission standards) for the control of
emissions from new motor vehicles or new motor vehicle engines prior to
March 30, 1966, if the State determines that its standards will be, in
the aggregate, at least as protective of public health and welfare as
applicable Federal standards (this is known as California's
``protectiveness determination''). Because California was the only
state to have adopted standards prior to 1966, it is the only state
that is qualified to seek and receive a waiver.\7\ The Administrator
must grant a waiver unless she finds that: (A) California's above-noted
``protectiveness determination'' is arbitrary and capricious; \8\ (B)
California does not need such State standards to meet compelling and
extraordinary conditions; \9\ or (C) California's standards and
accompanying enforcement procedures are not consistent with section
202(a) of the Act.\10\ Regarding consistency with section 202(a), EPA
reviews California's standards for technological feasibility and
evaluates testing and enforcement procedures to determine whether they
would be inconsistent with federal test procedures (e.g., if
manufacturers would be unable to meet both California and federal test
requirements using the same test vehicle).\11\
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\7\ See S.Rep. No. 90-403 at 632 (1967).
\8\ CAA section 209(b)(1)(A).
\9\ CAA section 209(b)(1)(B).
\10\ CAA section 209(b)(1)(C).
\11\ See, e.g., 74 FR at 32767 (July 8, 2009); see also Motor
and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095, 1126 (DC Cir. 1979).
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If California amends regulations that were previously granted a
waiver of preemption, EPA can confirm that the amended regulations are
within-the-scope of the previously granted waiver when three conditions
are met. First, the amended regulations must not undermine California's
determination that its standards, in the aggregate, are
[[Page 70239]]
as protective of public health and welfare as applicable federal
standards. Second, the amended regulations must not affect consistency
with section 202(a) of the Act. Third, the amended regulations must not
raise any ``new issues'' affecting EPA's prior waivers. CARB, in its
Resolutions 00-45 and 02-31, expressly found that its amendments met
each of these criteria.\12\
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\12\ CARB -determinations affirmed in Executive Orders G-00-069
and G-03-016.
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C. EPA's Consideration of CARB's Request
Because EPA believed it possible that CARB's amendments did in fact
raise ``new issues'' through the imposition of more stringent standards
for heavy-duty Otto-cycle engines above 8,500 pounds GVWR for the 2004,
2005 through 2007, and the 2008 and subsequent MYs, EPA offered the
opportunity for a public hearing and requested public comments on these
new requirements.\13\ EPA received no request for a public hearing, nor
were any comments received on the CARB amendments at issue. Therefore,
EPA has made this determination based on the information submitted by
CARB in its request.
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\13\ 72 FR 27114 (May 14, 2007).
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D. Standard and Burden of Proof in Clean Air Act Section 209
Proceedings
In Motor and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095 (DC Cir.
1979) (herein ``MEMA I''), the United States Court of Appeals stated
that the Administrator's role in a section 209 proceeding is to:
[C]onsider all evidence that passes the threshold test of materiality
and * * * thereafter assess such material evidence against a standard
of proof to determine whether the parties favoring a denial * * * have
shown that the factual circumstances exist in which Congress intended a
denial * * *.\14\
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\14\ Motor and Equip. Mfrs. Assoc. v. EPA (MEMA I), 627 F.2d
1095, 1122 (DC Cir. 1979).
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The court in MEMA I considered the standards of proof pursuant to
section 209 for the two findings necessary to grant a waiver for an
``enforcement procedure'' (as opposed to the standards themselves): (1)
``Protectiveness in the aggregate'' and (2) ``consistency with section
202(a)'' findings. The court instructed that, ``the standard of proof
must take account of the nature of the risk of error involved in any
given decision, and it therefore varies with the finding involved. We
need not decide how this standard operates in every waiver decision.''
\15\
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\15\ Id.
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The court upheld the Administrator's position that, to deny a
waiver, ``there must be `clear and compelling evidence' to show that
proposed procedures undermine the protectiveness of California's
standards.'' \16\ The court noted that this standard of proof ``also
accords with the congressional intent to provide California with the
broadest possible discretion in setting regulations it finds protective
of the public health and welfare.'' \17\
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\16\ Id.
\17\ Id.
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With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all section 209
proceedings, but found that the opponents of the waiver were unable to
meet their burden of proof even if the standard were a mere
preponderance of the evidence. MEMA I made clear that: [E]ven in the
two areas concededly reserved for Federal judgment by this
legislation--the existence of ``compelling and extraordinary''
conditions and whether the standards are technologically feasible--
Congress intended that the standards of EPA review of the State
decision to be a narrow one.'' \18\
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\18\ See, e.g., 40 FR 23, 102-103 (May 28, 1975).
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Furthermore, Congress intended that EPA's review of California's
decision-making be narrow in scope.\19\ This has led EPA in the past to
reject arguments that are not specified within the statute as grounds
for denying a waiver or authorization:
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\19\ See, e.g., MEMA I, 627 F.2d at 1110-11, citing H.R. Rep.
No. 294, 95th Cong., 1st Sess. 301-02 (1977).
The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in air quality not
commensurate with its cost or is otherwise an arguably unwise
exercise of regulatory power is not legally pertinent to my decision
under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\20\
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\20\ 36 FR 17458 (August 31, 1971). Note that the ``more
stringent'' standard expressed here in 1971, was superseded by the
1977 amendments to section 209, which established that California's
standards must be, in the aggregate, at least as protective of
public health and welfare as applicable Federal standards.
Thus, EPA's consideration of all the evidence submitted concerning this
waiver decision is circumscribed by its relevance to those questions
which the Administrator is directed to consider by section 209.
Finally, opponents of the waiver bear the burden of showing whether
California's waiver request is inconsistent with section 202(a). As
found in MEMA I, this obligation rests firmly with opponents in a
section 209 proceeding; the court held that:
The language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they comply with the statute, when presented to the Administrator
are presumed to satisfy the waiver requirements and that the burden
of proving otherwise is on whoever attacks them. California must
present its regulations and findings at the hearing, and thereafter
the parties opposing the waiver request bear the burden of
persuading the Administrator that the waiver request should be
denied.\21\
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\21\ MEMA I at 1121.
The Administrator's burden, on the other hand, is to determine that
she has made a reasonable and fair evaluation of the information in the
record when coming to the waiver decision. As the court in MEMA I
stated, ``[h]ere, too, if the Administrator ignores evidence
demonstrating that the waiver should not be granted, or if [s]he seeks
to overcome that evidence with unsupported assertions of [her] own,
[s]he runs the risk of having [her] waiver decision set aside as
arbitrary and capricious.''\22\ Therefore, the Administrator's burden
is to act ``reasonably.''\23\
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\22\ Id. at 1126.
\23\ Id.
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E. Within-the-Scope Waivers
CARB suggests in its request letter(s) that since these amendments
are standards and test procedures that EPA previously issued waivers
for, that the amendments should be found to be within-the-scope of
previous EPA waivers.\24\ As noted above, if California acts to amend a
previously authorized standard or accompanying enforcement procedure,
the amendment may be considered within-the-scope of a previously issued
waiver provided that it: (1) Does not undermine California's
determination that its standards, in the aggregate, are as protective
of public health and welfare as applicable federal standards, (2) does
not affect consistency with section 202 of the Act, and (3) raises no
new issues affecting EPA's previous waiver.\25\
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\24\ CARB Request for Confirmation that Amendments Are Within
the Scope of Previous Waivers of Preemption Under Clean Air Act
Section 209(b), December 7, 2005, at 1 citing 68 FR 19811 and 60 FR
22034 (April 28, 2005).
\25\ See, e.g., 51 FR 12391 (April 10, 1986) and 65 FR 69673,
69674 (November 20, 2000). The first within-the-scope determination
stated that a CARB request made subsequent to an EPA waiver,
``exists within the meaning and intent of the waiver granted.'' 37
FR 14831 (July 25, 1972).
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[[Page 70240]]
Regardless of whether the first two criteria can be established,
the third criterion alone prevents EPA from considering this request as
within-the-scope of EPA's prior waivers. EPA has previously stated that
if CARB's amendments raise ``new issues'' affecting previously granted
waiver, we cannot confirm that those amendments are within-the-scope of
previous waivers.\26\ Further, EPA has stated in prior waiver and
authorization determinations that increases in the numerical stringency
of standards are ``new issues'' for which a full waiver or
authorization is required.\27\ Here, CARB increased the stringency of
its exhaust emission standards for heavy-duty Otto-cycle engines and
vehicles above 8,500 pounds GVWR for the 2004, 2005 through 2007, and
the 2008 and subsequent MYs. Therefore, EPA believes it appropriate to
go beyond an examination of whether the new standards affect the prior
consistency with section 202(a) findings and, in this context, require
a new analysis of whether (A) California's above-noted ``protectiveness
determination'' is arbitrary and capricious; \28\ (B) California does
not need such State standards to meet compelling and extraordinary
conditions; \29\ or (C) California's standards and accompanying
enforcement procedures are not consistent with section 202(a) of the
Act.\30\
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\26\ See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034
(April 28, 2005).
\27\ See, e.g., 71 FR 44027 at 44028 (August 3, 2006) (``EPA
believed it possible that CARB's amendments do in fact raise ``new
issues'' as they impose new more stringent standards ***'') and 51
FR 6308 at 6309 (February 21, 1986) (``[T]hese amendments do raise
significant new issues not considered in prior waiver decisions. In
effect, California's amendments establish new standards ***. '').
\28\ CAA section 209(b)(1)(A).
\29\ CAA section 209(b)(1)(B).
\30\ CAA section 209(b)(1)(C).
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II. Discussion
As detailed below, EPA finds that CARB has demonstrated that it
meets the requirements for a new section 209(b) waiver for heavy-duty
Otto-cycle engines and vehicles above 8,500 pounds GVWR and, therefore,
believes a new waiver is appropriate.
A. California's Protectiveness Determination
Section 209(b)(A)(1) of the Act instructs that EPA cannot grant a
waiver if the agency finds that CARB was arbitrary and capricious in
its determination that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. CARB's Board made protectiveness determinations in
Resolutions 00-45 and 02-31, dated December 7, 2000 and December 12,
2002. Resolution 00-45 found that amendments to sections 1956.8 and
1961 of title 13, California Code of Regulations (CCR), as set forth in
its Attachment A, the amendments to (and adoption of) the documents
incorporated by those regulations as set forth in Attachments B, C, and
D, with the modifications set forth in Attachment E to Resolution 00-45
would not cause the California emission standards, in the aggregate, to
be less protective of public health and welfare than applicable Federal
standards.\31\ Resolution 02-31 found that amendments to sections
1956.1, 1956.8, 1965, and 1978 of title 13, CCR, as set forth in
Attachment A and the amendments to, and adoption of, the documents
incorporated by reference in those regulations as set forth in
Attachments B, D, E, F, G and H to Resolution 02-31, and section 1961,
title 13, CCR, as set forth in Attachment A thereto, and the amendments
to the document incorporated by that regulation as set forth in
Attachment C, with the modifications set forth in Attachment I to the
Resolution would not cause the California emission standards, in the
aggregate, to be less protective of public health and welfare than
applicable Federal standards.\32\ CARB's protectiveness determinations
in both rulemakings were, therefore, based on comparisons to the
Federal standards thereby demonstrating that CARB's standards and test
procedures align with the Federal program.
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\31\ ``Be it further resolved that the Board hereby determines
that the California motor vehicle emission standards for passenger
cars, light-duty trucks and medium duty engines, and for heavy-duty
Otto-cycle engines, with the amendments approved herein, are, in the
aggregate, at least as protective of public health and welfare than
applicable federal standards.'' CARB Resolution 00-45 at 6 (December
7, 2000).
\32\ ``Be it further resolved that the Board hereby determines
that the regulations approved and adopted herein will not cause
California motor vehicle emission standards, in the aggregate, to be
less protective of public health and welfare than applicable federal
standards.'' CARB Resolution 02-31 at 6 (December 12, 2002).
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EPA did not receive any comments stating that CARB's amendments are
not, in the aggregate, as stringent as applicable Federal standards.
Therefore, based on the record before me, I cannot find that CARB's
amendments, as noted, would cause the California heavy-duty Otto-cycle
exhaust emission standards, in the aggregate, to be less protective of
public health and welfare than applicable Federal standards.
B. Need for California Standards to Meet Compelling and Extraordinary
Conditions
Section 209(b)(1) of the Act also instructs that EPA cannot grant a
waiver if the agency finds that California ``does not need such State
standards to meet compelling and extraordinary conditions, or (C) such
State standards and accompanying enforcement procedures are not
consistent with section [202(a)] of the Act.'' This criterion restricts
EPA's inquiry to whether California needs its own mobile source
pollution program to meet compelling and extraordinary conditions, and
not whether any given standards are necessary to meet such
conditions.\33\ As to the need for the particular standards that are
the subject of this decision, California is entrusted with the power to
select ``the best means to protect the health of its citizens and the
public welfare.'' \34\ CARB has repeatedly demonstrated the existence
of compelling and extraordinary conditions in California.\35\
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\33\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
\34\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 301-02 (1977)
(cited in MEMA I, 627 F.2d at 1110).
\35\ CARB expressed its needs for its own emission control
program in both of the rulemakings at issue here. (``Be It Further
Resolved that the Board hereby finds that separate California
emission standards and test procedures are necessary to meet
compelling and extraordinary conditions.'' CARB Resolution 00-45 at
6 (December 7, 2000), CARB's Item 5; CARB Resolution 02-31 at 6
(December 12, 2002), CARB's Item 19.
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EPA has not received any adverse comments to suggest that
California no longer suffers from serious and unique air pollution
problems. In its supplemental waiver request letter, CARB concluded
that ``California needs its own on-road engine and vehicle program to
meet serious air pollution problems unique to the State.'' \36\ EPA has
repeatedly declined to find fault in California's demonstrations of
``compelling and extraordinary conditions'' when waiving preemption for
motor vehicle emission standards under section 209(b) and authorization
for California's nonroad regulations under section 209(e) of the
CAA.\37\ Moreover, because EPA has not received adverse public comment
challenging California's need for its own mobile source pollution
control program or asserting any change from California's previous
demonstrations, I cannot deny the waiver based on a lack of
[[Page 70241]]
compelling and extraordinary conditions.
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\36\ CARB's Supplemental Request Letter dated June 15, 2006 at
1.
\37\ See, e.g., 41 FR 44209, 42213 (October 7, 1976); 49 FR
18887, 18892 (May 3, 1984). See also Final 209(e) Rule, 59 FR at
36982.
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C. Consistency with Section 202(a) of the Clean Air Act
EPA has stated in the past that California standards and
accompanying test procedures would be inconsistent with section 202(a)
of the Clean Air Act if: (1) There is inadequate lead time to permit
the development of technology necessary to meet those requirements,
giving appropriate consideration to cost of compliance within the lead
time provided, or (2) the federal and California test procedures impose
inconsistent certification requirements.\38\
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\38\ See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034
(April 28, 2005).
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The first prong of EPA's inquiry into consistency with section
202(a) of the Act depends upon technological feasibility. This requires
EPA to determine whether adequate technology already exists; or if it
does not, whether there is adequate time to develop and apply the
technology before the standards go into effect. CARB noted during its
rulemakings that the methods that can be used to meet the 2004-2005
standards consist of technologies that have already been developed in
response to federal emission standards. The technology changes that
were expected to occur as a result of the new regulations include:
Improved durability catalysts with increased precious metal loading,
optimization of the catalyst and fuel metering systems (including
improved fuel injection and heated oxygen sensors), increased use of
air injection and retarded spark ignition to control cold start
emissions, and improved exhaust gas recirculation for better
NOX control.\39\ Additionally, CARB notes that the
technological feasibility demonstrations for the exhaust emission
standards reflect the technological feasibility in EPA's own analysis
for the federal standards.\40\ CARB also relied on the federal findings
of technological feasibility for technologies that can be used to meet
the 2008 and beyond standards.\41\ EPA finds that CARB employed
appropriate projections of the feasibility of the technologies
necessary to meet both the 2004-2005 standards and the 2008 standards.
CARB's examination of the technological feasibility findings made by
EPA in the federal rulemaking along with subsequent technology
developments provide no basis upon which to find that CARB's standards
are not consistent with section 202(a) of the Act.
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\39\ CARB Item 2 at 7-8.
\40\ 65 FR 59896 (October 6, 2000).
\41\ 66 FR 5002 (January 18, 2001), at pp. 5053 to 5055.
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The second prong of EPA's inquiry into consistency with section
202(a) of the Act depends on the compatibility of the federal and
California test procedures. CARB points out that its certification
requirements are nearly identical to those adopted by EPA.\42\ In fact,
CARB found that beginning with the 2008 model year, California's test
procedures are identical to the federal test procedures for heavy-duty
gasoline engines and incomplete vehicles.\43\ EPA agrees with this
analysis and finds that one set of tests for a heavy-duty engine or
vehicle could be used to determine compliance with both California and
federal requirements. Therefore, we cannot find California's test
procedures to be inconsistent with our own.
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\42\ Id. And Item 2 at pp. 7-8.
\43\ CARB Request for Confirmation that Amendments Are Within
the Scope of Previous Waivers of Preemption Under Clean Air Act
Section 209(b), December 7, 2005 at 14.
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For these reasons, I cannot deny the waiver based on a finding that
the 2000 and 2002 amendments are inconsistent with section 202(a) of
the Clean Air Act.
III. Decision
EPA's analysis finds the criteria for granting a waiver of
preemption to be satisfied. The amendments require a new waiver of
preemption because ``new issues'' are presented by the establishment of
more stringent numerical standards in efforts to harmonize California
standards with federal standards. Upon evaluation, EPA has determined
that CARB has met the criteria for a waiver of preemption for the 2000
and 2002 amendments.
The Administrator has delegated the authority to grant California a
section 209(b) waiver to enforce its own emission standards for on-road
engines to the Assistant Administrator for Air and Radiation. Having
given consideration to all the material submitted for this record, and
other relevant information, I find that I cannot make the
determinations required for a denial of a waiver pursuant to section
209(b) of the Act. Therefore, I grant a waiver of Clean Air Act
preemption to the State of California with respect to its heavy-duty
Otto-cycle engine and vehicle requirements as set forth above.
My decision will affect not only persons in California but also
manufacturers outside the State who must comply with California's
requirements in order to produce engines for sale in California. For
this reason, I determine and find that this is a final action of
national applicability for purposes of section 307(b) (1) of the Act.
Pursuant to section 307(b) (1) of the Act, judicial review of this
final action may be sought only in the United States Court of Appeals
for the District of Columbia Circuit. Petitions for review must be
filed by January 18, 2011. Judicial review of this final action may not
be obtained in subsequent enforcement proceedings, pursuant to section
307(b) (2) of the Act.
In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a
supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.
Dated: November 10, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-28971 Filed 11-16-10; 8:45 am]
BILLING CODE 6560-50-P