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OAR Box 1190 

Prepped by Candice Davis 

Document Number: 

32) I V-A-3 

Docket Number: 

A-90-28 

Printed 5/5/2008 9:13:50 AM Sheet 32 of 106 
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MEMA WAIVER HEARING TESTIMONY OUTLINE 

I. Timing 

A. When should waiver be applied for? 

1. Must be applied for and received BEFORE enforcement. 

California illegally began its rulemaking on OBD II in 1989 

before it had received a waiver of Section 209(a), and has 

been illegally amending and enforcing its regulations ever 

since. 

2. 

II. 

Until a 209(b) waiver is granted, the 209(a) prohibition on the 

state's enforcement of inconsistent standards is in effect. 

California has no legal authority to enforce its inconsistent 

standards, and EPA should not allow it to. 

Section 209(b) Waiver Analysis 

A. OBD is a standard » 

1. OBD is not just an enforcement procedure, it's a standard. 

The statute says "standards for the control of emissions," not 

just emissions limits. Section 209(b). OBD is a standard 

without which a new vehicle cannot be certified. As such, all 

three prongs of the Section 209(b) waiver test must be 

considered. 

B. Protectiveness hearing was arbitrary & capricious -

1. CARB did not consider the issues raised by the aftermarket 

regarding the need for anti-tampering, access and information 

availability requirements or competitive concerns. 

2. CARB did not consider the consistency of its proposed 

regulation with provisions of the Clean Air Act and other 

federal law. 

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C. California has not demonstrated a compelling need -

1. The state has failed to implement its I/M program and to 

identify why this program is insufficient to meet its compelling 

need. 

2. Encryption, potting and soldering of computer chip data is not 

necessary to meet extraordinary and compelling conditions. 

D. Consistency with 202(a)-

1. Anti-Tampering is inconsistent with 202(m)(4) and 202(m)(5) 

and, therefore, with 202(a). Where Congress has made a 

finding and mandated that a particular group needs greater 

protection, as in Sections 202(m)(4) and (5), EPA cannot 

grant a waiver to a California rule which is inconsistent with 

these requirements. 

2. EPA has stated the test for 202(a) consistency: "California's 

standards and accompanying enforcement procedures are 

inconsistent with Section 202(a) if (1) there is inadequate 

lead time to permit the development of technology necessary 

to meet those requirement, giving appropriate consideration 

to the cost of compliance within that time frame, or (2) the 

federal and California test procedures impose inconsistent 

certification requirements so as*tp make a manufacturer . 

unable to meet both sets of requirements within the same 

test vehicle." See, e.g., 43 Fed. Reg. £6371, 26373 (May 12, 

1981). 

a. Inconsistency is shown here because the same test 

vehicle cannot meet the California and federal 

standards since California demands encryption and 

soldering of the computer chip in OBD II and CAA 

Section 202(m)(4) demands that access to the OBD 

system be available in the federal vehicle. 

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