Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 70237 

iv. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

vi. Provide specific examples to 

illustrate your concerns and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified. 

3. Environmental justice. EPA seeks to 

achieve environmental justice, the fair 

treatment and meaningful involvement 

of any group, including minority and/or 

low income populations, in the 

development, implementation, and 

enforcement of environmental laws, 

regulations, and policies. To help 

address potential environmental justice 

issues, the Agency seeks information on 

any groups or segments of the 

population who, as a result of their 

location, cultural practices, or other 

factors, may have atypical or 

disproportionately high and adverse 

human health impacts or environmental 

effects from exposure to the pesticide 

discussed in this document, compared 

to the general population. 

II. What action is the agency taking? 

Under section 18 of the Federal 

Insecticide, Fungicide, and Rodenticide 

Act (FIFRA) (7 U.S.C. 136p), at the 

discretion of the Administrator, a 

Federal or State agency may be 

exempted from any provision of FIFRA 

if the Administrator determines that 

emergency conditions exist which 

require the exemption. The Washington 

Department of Agriculture, Idaho State 

Department of Agriculture, and the 

Oregon Department of Agriculture have 

requested the Administrator to issue a 

specific exemption regional request for 

use of hop beta acids in honey bee hives 

to control varroa mites. Information in 

accordance with 40 CFR part 166 was 

submitted as part of this request. 

As part of this request, the applicants 

assert that the varroa mite is a highly 

destructive pest and is having a 

catastrophic effect on honey bee 

populations. The parasitic mite is 

considered the primary pest of 

honeybees and its control is necessary 

for successful beekeeping in the PNW. 

According to the applicants, the 

currently available registered products 

no longer successfully control varroa 

mites, because repeated use has 

contributed to widespread development 

of mite resistance. Further, some of the 

alternative products have been reported 

to cause bee mortality, have labeling 

limitations which make them 

impractical for large beekeeping 

operations, or provide inconsistent mite 

control. Varroa mite outbreaks are also 

associated with colony viruses, which 

result in large colony losses. 

The Applicants propose to make no 

more than three treatments per year of 

two cardboard strips, coated with liquid 

product per brood super, during the 

spring, summer and fall. Approximately 

181,000 honey bee colonies could be 

treated in all counties throughout 

Washington, Idaho, and Oregon, 

requiring 2,172,000 strips for three 

treatments. The total amount of hop beta 

acids applied would be 4,170 kilograms 

(2,172,000 × 1.92 grams of hop beta 

acids per strip), which is equivalent to 

9,194 pounds, if all honey bee colonies 

in the PNW were treated. 

This notice does not constitute a 

decision by EPA on the application 

itself. The regulations governing section 

18 of FIFRA require publication of a 

notice of receipt of an application for 

this specific exemption regional request 

which proposes use of a new chemical 

(i.e., an active ingredient) which has not 

been registered by EPA. The notice 

provides an opportunity for public 

comment on the application. The 

Agency will review and consider all 

comments received during the comment 

period in determining whether to issue 

the specific exemption requested by the 

Washington, Oregon, and Idaho 

Departments of Agriculture. 

List of Subjects 

Environmental protection, Pesticides 

and pests. 

Dated: November 4, 2010. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

[FR Doc. 2010–28816 Filed 11–16–10; 8:45 am] 

BILLING CODE 6560–50–P 

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 OnHighway Otto-Cycle Engines and 

Incomplete Vehicle Regulations. 

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 (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 

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 Ottocycle 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. 

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70238 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 

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). 

4The 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). 

5California 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. 

6See 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. 

7See S.Rep. No. 90–403 at 632 (1967). 

8CAA section 209(b)(1)(A). 

9CAA section 209(b)(1)(B). 

10CAA section 209(b)(1)(C). 

11See, 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). 

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. Email: 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 withinthe-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

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

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.’’ 

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

If California amends regulations that 

were previously granted a waiver of 

preemption, EPA can confirm that the 

amended regulations are within-thescope 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 

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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 70239 

12CARB –determinations affirmed in Executive 

Orders G–00–069 and G–03–016. 

13 72 FR 27114 (May 14, 2007). 

14 Motor and Equip. Mfrs. Assoc. v. EPA (MEMA 

I), 627 F.2d 1095, 1122 (DC Cir. 1979). 

15 Id. 

16 Id. 

17 Id. 

18See, e.g., 40 FR 23, 102–103 (May 28, 1975). 

19See, e.g., MEMA I, 627 F.2d at 1110–11, citing 

H.R. Rep. No. 294, 95th Cong., 1st Sess. 301–02 

(1977). 

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. 

21 MEMA I at 1121. 

22 Id. at 1126. 

23 Id. 

24CARB 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). 

25See, 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). 

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

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. 

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

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

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

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

Furthermore, Congress intended that 

EPA’s review of California’s decisionmaking 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: 

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

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

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

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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70240 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 

26 See, e.g., 75 FR 8056 (February 23, 2010); 70 

FR 22034 (April 28, 2005). 

27See, 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 ***. ’’). 

28CAA section 209(b)(1)(A). 

29CAA section 209(b)(1)(B). 

30CAA section 209(b)(1)(C). 

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 heavyduty 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). 

33See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

34H.R. Rep. No. 95–294, 95th Cong., 1st Sess., 

301–02 (1977) (cited in MEMA I, 627 F.2d at 1110). 

35CARB 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. 

36CARB’s Supplemental Request Letter dated 

June 15, 2006 at 1. 

37See, 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. 

Regardless of whether the first two 

criteria can be established, the third 

criterion alone prevents EPA from 

considering this request as within-thescope 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

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. 

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

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 

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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 70241 

38See, e.g., 75 FR 8056 (February 23, 2010); 70 

FR 22034 (April 28, 2005). 39CARB Item 2 at 7–8. 40 65 FR 59896 (October 6, 2000). 41 66 FR 5002 (January 18, 2001), at pp. 5053 to 

5055. 

42 Id. And Item 2 at pp. 7–8. 

43CARB 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. 

compelling and extraordinary 

conditions. 

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

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. 

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. 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–UST–2010–0651; FRL–9227–8] 

Compatibility of Underground Storage 

Tank Systems With Biofuel Blends 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed guidance 

and request for comments. 

SUMMARY: EPA’s Office of Underground 

Storage Tanks intends to issue guidance 

that would clarify EPA’s underground 

storage tank (UST) compatibility 

requirement as it applies to UST 

systems storing gasoline containing 

greater than 10 percent ethanol and 

diesel containing an amount of biodiesel 

yet to be determined. Today’s Federal 

Register notice solicits comment on the 

proposed guidance, which provides 

owners and operators of underground 

storage tank systems greater clarity in 

demonstrating compatibility of their 

tank systems with these fuels. 

DATES: Comments must be received on 

or before December 17, 2010, 30 days 

after publication in the Federal 

Register. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

UST–2010–0651, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: rcra-docket@epa.gov. 

• Mail: EPA Docket Center, 

Environmental Protection Agency, 

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