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California State Motor Vehicle Pollution Control Standards; Urban Buses; Request for Waiver of Preemption; Notice of Decision

American Government Special Collections Reference Desk

Buses American Government

California State Motor Vehicle Pollution Control Standards; Urban Buses; Request for Waiver of Preemption; Notice of Decision

Gina McCarthy
Environmental Protection Agency
July 23, 2013


[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Notices]
[Pages 44112-44117]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17700]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9836-7]


California State Motor Vehicle Pollution Control Standards; Urban 
Buses; Request for Waiver of Preemption; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA is granting the California Air Resources Board (CARB) its 
request for a waiver of preemption for emission standards and related 
test procedures contained in its urban bus regulations as they affect 
the 2002 and later model years. Urban buses are conventionally powered 
by a heavy-duty diesel engine that falls within the heavy-duty vehicle 
classification of greater than 33,000 pounds gross vehicle weight, and 
are intended primarily for intra-city operation, i.e., within the 
confines of a city or greater metropolitan area.

DATES: Petitions for review must be filed by September 23, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2012-0745. 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, located at 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 electronic mail (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. You may 
access EPA dockets at http://www.regulations.gov. After opening the 
www.regulations.gov Web site, enter EPA-HQ-OAR-2012-0745 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 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: Brenton M. Williams, Attorney-Advisor, 
Compliance Division, Office of Transportation and Air Quality, U.S. 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105. Telephone: (734) 214-4341. Fax: (734) 214-4053. Email: 
williams.brent@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Chronology

    By letter dated November 16, 2009, CARB submitted to EPA its 
request for a waiver of preemption pursuant to section 209(b) of the 
Clean Air Act (CAA or the Act), for its urban bus regulations.\1\ 
California's urban bus regulations principally set requirements for 
California's public transit agencies that operate urban buses and other 
transit vehicles; additionally, the rulemakings set emission standards 
for new urban bus engines. CARB formally adopted these urban bus 
regulations during five separate rulemakings that took place between 
2000 and 2005: a 2000 rulemaking, a 2002 rulemaking, a 2004 rulemaking, 
a February 2005 rulemaking, and an October 2005 rulemaking. 
Collectively, the five rulemakings elevated the stringency of exhaust 
emission standards and test procedures for heavy-duty urban bus engines 
and vehicles. The 2000 rulemaking included more stringent particulate 
matter (``PM'') emission standards for diesel-fueled urban bus engines 
through the 2006 model year; more stringent mandatory and optional 
nitrogen oxides (``NOX'') and non-methane hydrocarbon 
(``NMHC'') standards for diesel-fueled urban bus engines through the 
2003 model year; more stringent optional combined NMHC+ NOX 
and PM standards for alternatively-fueled urban bus engines through the 
2006 model year; more stringent primary emission standards for diesel-
fueled urban buses through the 2006 model year; tightening of exhaust 
emission standards for 2007 and later model year heavy-duty urban 
diesel engines; and adoption of urban bus test procedures and label 
specifications. The 2000 rulemaking was formally adopted by CARB on 
November 22, 2000 and May 29, 2001,\2\ and became operative under 
California law on January 23, 2001 and May 29, 2001, respectively.\3\ 
The 2002 rulemaking allowed for an optional NMHC+ NOX 
standard for 2004-2006 model year diesel-fueled urban bus engines when 
used in exempted transit fleets with commitments to demonstrate 
advanced NOX after-treatment technology, and

[[Page 44113]]

established a certification procedure for hybrid electric buses. The 
2002 rulemaking was formally adopted by CARB on September 2, 2003,\4\ 
and became operative under California law on November 15, 2003.\5\ The 
2004 rulemaking added optional exhaust emission standards for diesel-
fueled hybrid-electric urban bus engines for authorized transit 
agencies with NOX mitigation plans for the 2004-2006 model 
years. The 2004 rulemaking was formally adopted by CARB on June 24, 
2004,\6\ and became operative under California law on January 31, 
2004.\7\ The February 2005 rulemaking clarified the optional standards 
for hybrid-electric buses that were allowed in the 2004 rulemaking. The 
February 2005 rulemaking was formally adopted by CARB on February 24, 
2005,\8\ and became operative under California law on January 31, 
2006.\9\ The October 2005 rulemaking amended the urban bus standards to 
align with California's existing exhaust emission standards for heavy-
duty diesel engines. The October 2005 rulemaking was formally adopted 
by CARB on July 28, 2006,\10\ and became operative under California law 
on October 7, 2006.\11\ The revisions to emission standards and test 
procedures resulting from these five sets of amendments were codified 
at title 13, California Code of Regulations, section 1952.2 et seq., 
which was later renumbered to section 2023 et seq.\12\
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    \1\ CARB, ``Request for Waiver Action Pursuant to Clean Air Act 
Section 209(b) for California's Urban Bus Emission Standards,'' EPA-
HQ-OAR-2012-0745-0004, (November 16, 2009).
    \2\ CARB, ``Resolution 00-2,'' February 24, 2000; CARB, 
``Executive Order G-00-060,'' (November 22, 2000); CARB, ``Executive 
Order G-01-010,'' (May 29, 2001).
    \3\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective January 23, 2001; CARB, ``Secretary of State Face 
Sheet and Final Regulation Order,'' effective May 29, 2001.
    \4\ CARB, ``Resolution 02-30,'' (October 24, 2002); CARB, 
``Executive Order G-03-023,'' (September 2, 2003).
    \5\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective November 15, 2003.
    \6\ CARB, ``Resolution 04-19,'' (June 24, 2004).
    \7\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective January 31, 2004.
    \8\ CARB, ``Resolution 05-15,'' (February 24, 2005).
    \9\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective January 31, 2006.
    \10\ CARB, ``Resolution 05-47,'' (September 15, 2005); CARB, 
``Resolution 05-53,'' (October 20, 2005); CARB Resolution 05-61,'' 
(October 27, 2005); CARB, ``Executive Order R-05-007,'' (July 28, 
2006).
    \11\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective October 7, 2006.
    \12\ See supra notes 5, 7, 9, 11, and 13.
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    CARB seeks a waiver of preemption pursuant to section 209(b) of the 
Clean Air Act for the emission standards and related test procedures 
contained in its urban bus regulations, as amended through 2000 and 
2005.

B. CARB's Urban Bus Rulemakings

    There are two basic components to the rulemakings from 2000 to 2005 
for urban buses: (1) More stringent emission standards for new urban 
bus engines applicable to urban bus engine manufacturers, along with 
amendments to the test procedures for determining compliance with the 
standards; and (2) transit agency fleet rules \13\ applicable to public 
transit agencies that own or lease urban buses and other transit 
vehicles to provide transportation services to the public directly or 
through contracted services. This section discusses the emission 
standards and amendments to test procedures for which CARB requests a 
new waiver of preemption.\14\
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    \13\ CARB's transit agency fleet rules are not covered by CARB's 
waiver request and will not be subject to waiver analysis. CARB 
represents that the fleet rules are not preempted under CAA section 
209(a) because CARB's directions to transit agencies to purchase and 
lease specified buses and vehicles with given engine technologies or 
with given emission limits by specified dates fall with the market 
participant doctrine, as articulated by the 9th Circuit Court of 
Appeals. Tocher v. City of Santa Ana et al. (9th Cir. 2000) 219 F.3d 
1040, 1050. CARB, ``Clean Air Act Sec.  209(b) Waiver Support 
Document Submitted by the California Air Resources Board,'' EPA-HQ-
OAR-2012-0745-0004, (November 2009), at page 1.
    \14\ CARB, ``Clean Air Act Sec.  209(b) Waiver Support Document 
Submitted by the California Air Resources Board,'' EPA-HQ-OAR-2012-
0745-0004, (November 2009), at page 4.
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1. 2000 Rulemaking
    The 2000 amendments to the urban bus emission standards made them 
increasingly more stringent in multiple stages depending on fuel type. 
First, CARB established a more stringent PM emission standard of 0.01 
grams per brake horsepower-hour (``g/bhp-hr'') for 2002 and later model 
year (MY) diesel-fuel, dual-fuel, and bi-fuel urban bus engines 
produced on or after October 1, 2002, representing an 80-percent 
reduction from the preexisting PM standard of 0.05 g/bhp-hr.\15\ 
Second, for the 2004 through 2006 MY, the amendments increased the 
stringency of NOX, NMHC, carbon monoxide (``CO''), and 
formaldehyde standards for all urban bus engines and provided optional 
standards as well. For urban bus engines other than diesel-fuel, dual-
fuel, and bi-fuel engines, the emissions standards for 2004 through 
2006 were set at 2.4 g/bhp-hr for NOX+NMHC, 15.5 g/bhp-hr 
for CO, and 0.05 g/bhp-hr for PM (0.07g/bhp-hr PM in-use).\16\ For 
diesel-fueled, dual-fuel, and bi-fuel urban bus engines in the 2004-
2006 model years, the standards were set at 0.5 g/bhp-hr 
NOX, representing a 75-percent reduction in the preexisting 
NOX standard; 0.01 g/bhp-hr PM (maintaining the October 2002 
standards), 0.05 g/bhp-hr NMHC, 5.0 g/bhp-hr CO, and 0.01 g/bhp-hr 
formaldehyde. Third, beginning with the 2007 MY, all urban bus engines 
(regardless of fuel type) had to meet more stringent emission standards 
for NOX at 0.2 g/bhp-hr, NMHC at 0.05 g/bhp-hr, CO at 5.0 g/
bhp-hr, and formaldehyde at 0.01 g/bhp-hr.\17\
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    \15\ CARB, ``Overview of the 2000, 2002, 2004, and 2005 Transit 
Agency and Urban Bus Rulemakings,'' EPA-HQ-OAR-2012-0745-0007, 
(November 2009), at page 1.
    \16\ These standards were set for urban buses in a 1998 CARB 
rulemaking for heavy heavy-duty diesel engines, which established 
standards for the 2004 and later MY. Id. at 2.
    \17\ Id. at 2.
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    The 2000 urban bus rulemaking also amended the ``California Exhaust 
Emission Standards and Test Procedures for 1985 and Subsequent Model 
Heavy-Duty Diesel Engines and Vehicles'' to be consistent with the 
urban bus standards described above. Additionally, the smog index label 
specifications and the incorporated Label Specifications were amended 
to be consistent with the requirements of the urban bus standards.\18\
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    \18\ CARB, ``Clean Air Act Sec.  209(b) Waiver Support Document 
Submitted by the California Air Resources Board,'' EPA-HQ-OAR-2012-
0745-0004, (November 2009), at page 9.
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2. 2002 Rulemaking
    In the 2002 urban bus amendments, CARB allowed manufacturers of MY 
2004-2006 diesel-fuel, dual-fuel, and bi-fuel urban bus engines to sell 
engines that did not meet the 2000 adopted standards (0.5 g/bhp-hr 
NOX, representing a 75-percent reduction in the preexisting 
NOX standard; 0.01 g/bhp-hr PM (maintaining the October 2002 
standards), 0.05 g/bhp-hr NMHC, 5.0 g/bhp-hr CO, and 0.01 g/bhp-hr 
formaldehyde,) to an exempted public transit agency as long as the 
engine was certified either to the standards that continued as the 
primary standards for MY 2004-2006 alternative fuel bus engines (2.4/
2.5 g/bhp-hr NOX+NMHC), or to the optional October 2002-2003 
standards for diesel-fuel engines of NOX+NMHC standards 
between 1.8 and 0.3 g/bhp-hr, in 0.3 g/bhp-hr increments.\19\
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    \19\ Id. at 8.
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    Additionally, CARB adopted a new interim certification procedure 
that could be used to determine the compliance of 2004 and later model 
year hybrid electric buses (HEB) with the urban bus standards. The 
purpose of providing this new procedure was to facilitate 
quantification of the emission benefits of the hybrid-electric drive 
system in various HEB platforms.\20\
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    \20\ Id. at 9.
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3. 2004 Rulemaking
    The 2004 urban bus amendments relaxed the NOX exhaust 
emission standard for model years 2004-2006 from 0.5 g/bhp-hr to 1.8 g/
bhp-hr for diesel fuel hybrid-electric buses sold to a public transit 
agency that has been authorized by the Executive Officer of

[[Page 44114]]

CARB to acquire such buses, as long as the transit agency demonstrates 
it will undertake measures to mitigate the excess NOX 
emissions.\21\
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    \21\ CARB, ``Overview of the 2000, 2002, 2004, and 2005 Transit 
Agency and Urban Bus Rulemakings,'' EPA-HQ-OAR-2012-0745-0007, 
(November 2009), at page 3.
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4. February 2005 Rulemaking
    The February 2005 amendments corrected the 2004-2006 MY emission 
standards for diesel hybrid-electric engines used in urban buses. When 
the standards were amended in the 2004 rulemaking, CARB inadvertently 
omitted the then-existing standards for NMHC and CO. The February 2005 
amendments reinserted the engine exhaust emission standards of 0.5 g/
bhp-hr for NMHC and 15.5 g/bhp-hr for CO, and removed the formaldehyde 
standard.\22\
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    \22\ Id. at 4.
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5. October 2005 Rulemaking
    The October 2005 amendments aligned the urban bus exhaust emission 
standards with California's existing exhaust emission standards for 
heavy-duty diesel-cycle engines, for which a federal waiver of 
preemption had already been granted.\23\ The alignment allows the urban 
bus manufacturers to use averaging, banking, and trading (ABT) and 
other provisions in California's heavy-duty engine testing and 
certification procedures. The alignment also allowed for the following 
standards to be phased in through MY 2010: 0.02 g/bhp-hr 
NOX, 0.14 g/bhp-hr NMHC, 0.01 g/bhp-hr PM, 15.5 g/bhp-hr CO, 
and 0.05 g/bhp-hr formaldehyde.
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    \24\ 70 FR 50322 (August 26, 2005).
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C. EPA's Review of California's Urban Bus Waiver Request

    EPA announced its receipt of California's request for a waiver of 
preemption pursuant to section 209(b) of the Act for the emission 
standards and related test procedures contained in its urban bus 
regulations, as amended through 2000 and 2005 in a Federal Register 
notice on January 4, 2013.\24\ In that notice, EPA offered an 
opportunity for public hearing and comment on CARB's request.
---------------------------------------------------------------------------

    \24\ 78 FR 719 (January 4, 2013).
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    EPA invited comment, with respect to California's emission 
standards and related test procedures contained in its urban bus 
regulations, on 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 Act.
    No party requested an opportunity for a hearing to present oral 
testimony, and EPA did not receive any written comments.

D. Clean Air Act New Motor Vehicle 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 any 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 (i.e., if such state 
makes a ``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.\25\ The 
Administrator must grant a waiver unless she finds that: (A) 
California's above-noted ``protectiveness determination'' is arbitrary 
and capricious; \26\ (B) California does not need such State standards 
to meet compelling and extraordinary conditions;\27\ or (C) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.\28\ EPA has previously 
stated that consistency with section 202(a) requires that California's 
standards must be technologically feasible within the lead time 
provided, giving due consideration to costs, and that California and 
applicable federal test procedures be consistent.\29\
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    \25\ See S. Rep. No. 90-403 at 632 (1967).
    \26\ CAA Sec.  209(b)(1)(A).
    \27\ CAA Sec.  209(b)(1)(B).
    \28\ CAA Sec.  209(b)(1)(C).
    \29\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and 
Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095, 
1126 (D.C. Cir. 1979).
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    The second sentence of section 209(a) of the Act prevents states 
from requiring, ``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.'' However, once EPA has granted California a 
waiver of section 209(a)'s preemption for emission standards and/or 
accompanying enforcement procedures, California may then require other 
such conditions precedent.\30\ EPA can confirm that a California 
requirement is a condition precedent to sale, titling, or registration, 
if: (1) The requirements do not constitute new or different standards 
or accompanying enforcement procedures, and (2) the requirements do not 
affect the basis for the previous waiver decision.
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    \30\ ``Once California receives a waiver for standards for a 
certain class of motor vehicles, it need only meet the waiver 
criteria of section 209(b) for regulations pertaining to those 
vehicles when it adopts new or different standards or accompanying 
enforcement procedures. Otherwise, California may adopt any other 
condition precedent to the initial retail sale, titling, or 
registration of those vehicles without the necessity of receiving a 
further waiver of Federal preemption.'' 43 FR 36680 (August 18, 
1978).
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    In contrast to section 209(a)'s preemption of state adoption of 
standards controlling emissions from new motor vehicles and motor 
vehicle engines, section 209(d) of the Act explicitly preserves states' 
ability to regulate vehicles and engines in use. Section 209(d) 
provides that despite section 209(a)'s preemption, ``Nothing in this 
part shall preclude or deny to any State or political subdivision 
thereof the right otherwise to control, regulate, or restrict the use, 
operation, or movement of registered or licensed motor vehicles.'' \31\
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    \31\ See also Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1094 
(D.C. Cir. 1996).
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E. Deference to California

    In previous waiver decisions, EPA has recognized that the intent of 
Congress in creating a limited review based on the section 209(b)(1) 
criteria was to ensure that the federal government did not second-guess 
state policy choices. This has led EPA to state:


[[Page 44115]]


    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. The 
whole approach of the Clean Air Act is to force the development of 
new types of emission control technology where that is needed by 
compelling the industry to ``catch up'' to some degree with newly 
promulgated standards. Such an approach . . . may be attended with 
costs, in the shaped of reduced product offering, or price or fuel 
economy penalties, and by risks that a wider number of vehicle 
classes may not be able to complete their development work in time. 
Since a balancing of these 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.\32\
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    \32\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision 
Document at 64 (58 FR 4166 (January 13, 1993)).

    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.\33\
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    \33\ 40 FR 23104 and 58 FR 4166.
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    This interpretation is supported by the House Committee Report 
discussion of the 1977 amendments to the Clean Air Act. Congress had 
the opportunity to restrict the waiver provision, but elected instead 
to expand California's flexibility to adopt a complete program of motor 
vehicle emission controls. The amendment is intended to ratify and 
strengthen the California waiver provision and to affirm the underlying 
intent of that provision, i.e., to afford California the broadest 
possible discretion in selecting the best means to protect the health 
of its citizens and the public welfare.\34\
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    \34\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95 
Cong., 1st Sess. 301-02 (1977).
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F. Burden of Proof

    In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (DC Cir. 
1979) (MEMA I), the U.S. Court of Appeals for the D.C. Circuit stated 
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.\35\
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    \35\ MEMA I, 627 F.2d at 1122.

    The court in MEMA I considered the standards of proof under section 
209 for the two findings related to granting a waiver for an 
``accompanying 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.'' \36\
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    \36\ Id.
---------------------------------------------------------------------------

    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.\37\ 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.\38\
---------------------------------------------------------------------------

    \37\ Id.
    \38\ Id.
---------------------------------------------------------------------------

    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 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: ``even 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.'' \39\
---------------------------------------------------------------------------

    \39\ See, e.g., 40 FR 21102-103 (May 28, 1975).
---------------------------------------------------------------------------

    Opponents of the waiver bear the burden of showing that the 
criteria for a denial of California's waiver request have been met. As 
found in MEMA I, this obligation rests firmly with opponents of the 
waiver in a section 209 proceeding:

    [t]he language of the statute and it's 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.\40\
---------------------------------------------------------------------------

    \40\ MEMA I, 627 F.2d 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.' '' \41\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \42\
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    \41\ Id. at 1126.
    \42\ Id. at 1126.
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II. Discussion

    California's urban bus regulations elevated the stringency of 
exhaust emission standards and test procedures for heavy-duty urban bus 
engines and vehicles. It is CARB's contention that the new emission 
standards and test procedures for new urban buses and engines meet the 
criteria for a new waiver of preemption. The Administrator must grant a 
waiver unless the Administrator finds that: (a) California's 
``protectiveness determination'' is arbitrary and capricious; \43\ (b) 
California does not need such state standards to meet compelling and 
extraordinary conditions; \44\ or (c) California's standards and 
accompanying enforcement procedures are not consistent with section 
202(a) of the Act.\45\ As noted above, consistency with section 202(a) 
requires that California's standards must be technologically feasible 
within the lead time provided, giving due consideration to costs, and 
that California and applicable federal test procedures be 
consistent.\46\
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    \43\ CAA Sec.  209(b)(1)(A).
    \44\ CAA Sec.  209(b)(1)(B).
    \45\ CAA section 209(b)(1)(C).
    \46\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and 
Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095, 
1126 (D.C. Cir. 1979).
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A. California's Protectiveness Determination

    Section 209(b)(1)(A) of the Clean Air Act requires EPA to deny a 
waiver if the Administrator finds that California was arbitrary and 
capricious in its

[[Page 44116]]

determination that its State standards will be, in the aggregate, at 
least as protective of public health and welfare as applicable federal 
standards. When evaluating California's protectiveness determination, 
EPA generally compares the stringency of the California and federal 
standards at issue in a given waiver request.
    CARB approved more stringent emission standards for new urban 
transit buses and engines and the corresponding test procedures by 
Resolution 00-2 (February 24, 2000), Resolution 02-30 (October 24, 
2002), Resolution 04-19 (June 24, 2004), Resolution 05-15 (February 24, 
2005), and Resolutions 05-53 and 05-61 (October 20 and 27, 2005, 
respectively).\47\ In the respective Resolutions, CARB determined that 
the amendments ``would not cause California's emission standards, in 
the aggregate, to be less protective of public health and welfare than 
the applicable federal standards.'' \48\ The amended California 
standards align with, or are more stringent than, the applicable 
federal urban bus standards for NOX, NMHC, PM, and CO for 
each of the respective model years covered by the amendments.\49\
---------------------------------------------------------------------------

    \47\ See EPA-HQ-OAR-2012-0745 for copies of Resolutions.
    \48\ CARB, ``Clean Air Act Sec.  209(b) Waiver Support Document 
Submitted by the California Air Resources Board,'' EPA-HQ-OAR-2012-
0745-0004, (November 2009), at page 13.
    \49\ See Id. at 5; and see Id. at 13.
---------------------------------------------------------------------------

    There were no comments that expressed an opinion, nor has there 
been any evidence presented, suggesting that CARB was arbitrary and 
capricious in making its above-noted protectiveness findings. Based on 
the record, EPA cannot find that California was arbitrary and 
capricious in its findings that California's new urban bus emission 
standards, in the aggregate, at least as protective of public health 
and welfare as applicable federal standards.

B. California's Need for State Standards To Meet Compelling and 
Extraordinary Conditions

    Under section 209(b)(1)(B) of the Act, EPA cannot grant a waiver if 
California ``does not need such State standards to meet compelling and 
extraordinary conditions.'' To evaluate this criterion, EPA considers 
whether California needs its separate emission standards and test 
procedures to meet compelling and extraordinary conditions.
    Over the past forty years, CARB has repeatedly demonstrated the 
need for its motor vehicle emissions program to address compelling and 
extraordinary conditions in California.\50\ In the aforementioned 
Resolutions, CARB affirmed its longstanding position that California 
continues to need its own emission standards and test procedures to 
meet its serious air pollution problems. Likewise, EPA has consistently 
recognized that California continues to have the same ``geographical 
and climatic conditions that, when combined with the large numbers and 
high concentrations of automobiles, create serious pollution 
problems.'' \51\ Furthermore, there were no comments presenting any 
argument or evidence to suggest that California no longer needs 
separate emission standards and test procedures to address compelling 
and extraordinary conditions in California. Therefore, EPA has 
determined that we cannot deny California a waiver for its new urban 
bus standards under section 209(b)(1)(B).
---------------------------------------------------------------------------

    \50\ See, e.g., Approval and Promulgation of State 
Implementation Plans; California--South Coast, 64 FR 1770, 1771 
(January 12, 1999). See also 69 FR 23858, 23881-90 (April 30, 2004) 
(designating 15 areas in California as nonattainment for the federal 
8-hour ozone national ambient air quality standard).
    \51\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 
(September 8, 2008).
---------------------------------------------------------------------------

C. Consistency With Section 202(a) of the Clean Air Act

    Under section 209(b)(1)(C) of the Act, EPA must deny a California 
waiver request if the Agency finds that California standards and 
accompanying enforcement procedures are not consistent with section 
202(a) of the Act. The scope of EPA's review under this criterion is 
narrow. EPA has stated on many occasions that the determination is 
limited to whether those opposed to the waiver have met their burden of 
establishing that California's standards are inconsistent with section 
202(a). Previous waivers of federal preemption have stated that 
California's standards are not consistent with section 202(a) if there 
is inadequate lead time to permit the development of technology 
necessary to meet those requirements, giving appropriate consideration 
to the cost of compliance within that time. California's accompanying 
enforcement procedures would be inconsistent with section 202(a) if the 
federal and California test procedures conflict, i.e., if manufacturers 
would be unable to meet both the California and federal test 
requirements with the same test vehicle.
1. Lead Time Is Adequate for Manufacturer Compliance
    CARB asserts that given the submission date of the waiver request 
(November 16, 2009), the technological feasibility of the amendments 
cannot be disputed given the fact that manufacturers have been able to 
certify engines in the lead time provided.\52\
---------------------------------------------------------------------------

    \52\ See CARB, ``Clean Air Act Sec.  209(b) Waiver Support 
Document Submitted by the California Air Resources Board,'' EPA-HQ-
OAR-2012-0745-0004, (November 2009), at pages 15-19.
---------------------------------------------------------------------------

    EPA received no comments indicating that CARB's urban bus 
amendments present lead-time or technology issues with respect to 
consistency under section 202(a) and the agency knows of no other 
evidence to that effect. Thus, EPA is unable to find that California's 
urban bus standards are not technologically feasible within the 
available lead-time, giving appropriate consideration to the cost of 
compliance.
2. Consistency of Test Procedures
    With regard to the consistency of the California test procedures 
with the applicable federal test procedures, CARB has adopted 
certification requirements in the 2000 rulemaking that are nearly 
identical to those adopted and affirmed by the EPA.\53\ Although the 
2002 adopted Interim Certification Procedure for HEB is a new 
accompanying test procedure, it is optional, and the general test 
procedures and requirements necessary for certifying a diesel or 
gasoline heavy-duty engine for sale in California may continue to be 
used by manufacturers for certification of urban bus engines.\54\ CARB 
asserts it is not aware of any instance in which a manufacturer is 
precluded from conducting a single set of tests on an urban bus engine 
to determine compliance with both the California and federal emission 
standards.\55\
---------------------------------------------------------------------------

    \53\ 65 FR 59896 (October 6, 2000).
    \54\ CARB, ``Clean Air Act Sec.  209(b) Waiver Support Document 
Submitted by the California Air Resources Board,'' EPA-HQ-OAR-2012-
0745-0004, (November 2009), at page 20.
    \55\ Id.
---------------------------------------------------------------------------

    EPA received no comments expressing any disagreement with these 
statements from CARB, and no comments presenting any evidence opposing 
CARB's assertions regarding consistency with federal test procedures. 
EPA is unable to find that California's urban bus test procedures 
impose requirements inconsistent with federal test procedures.
    For the reasons set forth above, California's urban bus standards 
and accompanying enforcement procedures

[[Page 44117]]

are not inconsistent with section 202(a) of the Act.

D. Other Issues

    The 2000 rulemaking required the addition of information to the 
emission control label for urban bus engines to help identify the 
engines certified to the optional emission standards.\56\ CARB asserts 
that because the labels do not pertain to a manufacturer's ability to 
certify and produce engines that comply with the applicable emission 
standards, the emission control label specifications are not standards 
or accompanying enforcement procedures.\57\ The specifications are, 
however, subject to federal preemption under CAA section 209(a) because 
the specifications are a condition precedent to the initial retail sale 
of the new engines in California.\58\ EPA has stated that ``once 
California has received a waiver of federal preemption for its 
standards and enforcement procedures for a class of vehicles, it may 
adopt other conditions precedent to initial retail sale, titling or 
registration of the subject class of vehicles without the necessity of 
receiving a further waiver of federal preemption.'' \59\ In the instant 
case, CARB states that it has received previous waivers for urban bus 
engines.\60\ Therefore, CARB need not demonstrate that the labeling 
specifications independently meet the waiver criteria. EPA agrees with 
this assessment and the labeling specifications may be enforced in 
California without further action by the Administrator.\61\
---------------------------------------------------------------------------

    \56\ Id.
    \57\ Id.
    \58\ See, e.g., 49 FR 18887 (May 5, 1984), 47 FR 1015 (January 
8, 1982), and 46 FR 36237 (July 14, 1981).
    \59\ 46 FR 36742 (July 15, 1981), 45 FR 54131 (August 14, 1980), 
and 43 FR 36579 (August 18, 1978).
    \60\ See, e.g., 68 FR 75500 (December 31, 2003).
    \61\ CARB, ``Clean Air Act Sec.  209(b) Waiver Support Document 
Submitted by the California Air Resources Board,'' EPA-HQ-OAR-2012-
0745-0004, (November 2009), at page 21.
---------------------------------------------------------------------------

E. Full Waiver of Preemption Determination for California's Urban Bus 
Standards

    After a review of the information submitted by CARB, and given 
there were no parties opposing California's request, EPA finds that 
California's urban bus standards should receive a full waiver of 
preemption.

III. Decision

    The Administrator has delegated the authority to grant California 
section 209(b) waivers of preemption and section 209(e) authorizations 
to the Assistant Administrator for Air and Radiation. After evaluating 
CARB's urban bus emission standards and test procedures and CARB's 
submissions, EPA is taking the following action. EPA is granting a 
waiver of preemption to California for its urban bus emission standards 
and test procedures as they affect the 2002 and later model years.
    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 vehicles 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 
September 23, 2013. Judicial review of this final action may not be 
obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

    As with past authorization and waiver 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 15, 2013.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2013-17700 Filed 7-22-13; 8:45 am]
BILLING CODE P



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