Vol. 78 Friday, 

No. 183 September 20, 2013 

Part IV 

Environmental Protection Agency 

California State Nonroad Engine Pollution Control Standards; Off-Road 

Compression Ignition Engines—In-Use Fleets; Notice of Decision; Notice 

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58090 Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Notices 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2008–0691; FRL–9901–18– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; Off-Road 

Compression Ignition Engines—In-Use 

Fleets; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision. 

SUMMARY: The Environmental Protection 

Agency (EPA) is granting the California 

Air Resources Board’s (CARB’s) request 

for authorization of California 

regulations applicable to in-use fleets 

that operate off-road (nonroad or NR), 

diesel-fueled (compression-ignition or 

CI) vehicles with engines 25 horsepower 

and greater. The regulations require 

such fleets to meet fleet average 

emissions standards for oxides of 

nitrogen (NOX) and particulate matter 

(PM), or, alternatively, to comply with 

best available control technology 

(BACT) requirements for the vehicles in 

those fleets. This decision is issued 

under the authority of the Clean Air Act 

(CAA or Act). 

DATES: Petitions for review must be filed 

by November 19, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2008–0691. 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–2008–0691 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: 

David Dickinson, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue (6405J) NW., 

Washington, DC 20460. Telephone: 

(202) 343–9256. Email: 

Dickinson.David@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

A. California’s Nonroad CI In-Use Fleet 

Requirements 

B. Clean Air Act Nonroad Engine and 

Vehicle Authorizations 

C. Deference to California 

D. Burden and Standard of Proof 

E. EPA’s Administrative Process in 

Consideration of California’s Nonroad CI 

In-Use Fleet Requirements 

III. Discussion 

A. California Protectiveness Determination 

1. Based on EPA’s Traditional Analysis, is 

California’s Protectiveness 

Determination Arbitrary and Capricious? 

2. Is CARB’s Protectiveness Determination 

Arbitrary and Capricious Based on Other 

Effects of California’s Fleet 

Requirements? 

3. Section 209 (e)(2)(A)(i) Conclusion 

B. Does California Need its Standards to 

Meet Compelling and Extraordinary 

Conditions? 

1. Should EPA Review This Criterion 

Based on the Need for California’s 

Nonroad Program or the Need for the 

Fleet Requirements? 

a. Comment from Pacific Legal Foundation 

b. EPA Response 

2. Does California Need its Nonroad 

Program to Meet Compelling and 

Extraordinary Conditions? 

3. In the Alternative, does California Need 

its Nonroad Fleet Requirements to Meet 

Compelling and Extraordinary 

Conditions? 

a. California Air Quality Today and 

Moving Forward 

b. PM Health Effects 

c. Additional PM Comments 

4. Section 209(e)(2)(A)(ii) Conclusion 

C. Consistency with Section 209 of the 

Clean Air Act 

1. Consistency with Section 209(a) 

2. Consistency with Section 209(e)(1) 

3. Consistency with Section 209(b)(1)(C) 

a. Technological Feasibility 

b. Consistency of Certification Procedures 

D. Additional Issues Raised in Comment 

1. Request for a Public Hearing In 

California 

2. Request for EPA to Reopen the Comment 

Period 

3. Claims Outside the Scope of the Clean 

Air Act 

4. Constitutional Claims 

E. Authorization Determination for 

California’s Fleet Requirements 

IV. Decision 

V. Statutory and Executive Order Review 

I. Executive Summary 

Today, the Environmental Protection 

Agency (EPA) is granting a California 

Air Resources Board (CARB) request for 

authorization of regulations designed to 

reduce PM and NOX emissions from inuse nonroad diesel engines. The 

California In-Use Off-Road DieselFueled Fleets Regulation (Fleet 

Requirements) applies to fleets with NR 

CI vehicles or equipment greater than 25 

horsepower. The regulation takes effect 

beginning as early as 2014, depending 

on fleet size. It requires fleet operators 

to meet a progressively more stringent 

combined PM and NOX standard, or to 

reduce emissions through technology 

upgrades such as retrofit or 

replacement. Today’s decision pertains 

to CARB’s request of March 1, 2012, for 

authorization of the Fleet Requirements 

as amended in 2010. 

The legal framework for this decision 

stems from the provisions first adopted 

by Congress in 1967, and later modified 

in 1977, with respect to state emission 

requirements for motor vehicles and 

motor vehicle engines; and from similar 

language adopted by Congress in 1990 

with respect to preemption of state 

emission requirements for certain 

nonroad vehicles and equipment. 

Section 209(e)(2) of the Act, 42 U.S.C. 

7543(e)(2), specifies that EPA must 

authorize California to adopt and 

enforce covered nonroad standards if 

California determines that its standards 

are, in the aggregate, at least as 

protective of the public health and 

welfare as applicable Federal standards, 

unless EPA makes one of three findings 

specified under the Clean Air Act: (1) 

That California’s protectiveness finding 

is arbitrary and capricious; (2) that 

California does not need such California 

standards to meet compelling and 

extraordinary conditions; or (3) that 

California standards and accompanying 

enforcement procedures are not 

consistent with this section. As 

explained below, EPA interprets the 

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Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Notices 58091 

1States are expressly preempted from adopting or 

attempting to enforce any standard or other 

requirement relating to the control of emissions 

from new nonroad engines which are used in 

construction equipment or vehicles or used in farm 

equipment or vehicles and which are smaller than 

175 horsepower. Such express preemption under 

section 209(e)(1) of the Act also applies to new 

locomotives or new engines used in locomotives. 

2 59 FR 36969 (July 20, 1994). 

3See 62 FR 67733 (December 30, 1997). The 

applicable regulations are now found in 40 CFR 

part 1074, subpart B, § 1074.105. 

statutory language ‘‘consistent with this 

section’’ to mean consistent with section 

209 (e.g. section 209(a), section 

209(e)(1), and section 209(b)(1)(C)) of 

the Act. EPA’s role upon receiving an 

authorization request is to determine 

whether it is appropriate to make any of 

these three specified findings. 

Opponents of authorization bear the 

burden of proving that at least one of the 

three bases for denial of authorization 

has been satisfied. If the Agency cannot 

make at least one of the three findings, 

then it must grant the requested 

authorization. EPA has evaluated 

CARB’s request with regard to each of 

these three authorization criteria, in 

light of the evidence in the public 

record, and is granting CARB its 

authorization request as required under 

the Clean Air Act. 

This Notice of Decision provides a 

full discussion of EPA’s evaluation of 

each of the three criteria, including 

EPA’s evaluation of the record and its 

determination that those opposing the 

authorization have not met their burden 

of proof with regard to any of the three 

criteria in section 209(e)(2)(A). 

II. Background 

A. California’s Nonroad CI In-Use Fleet 

Requirements 

CARB initially approved the Fleet 

Requirements on July 26, 2007. CARB 

subsequently amended the regulation 

after the Board conducted hearings in 

December 2008, January 2009, July 

2009, and most recently in December 

2010. As explained below, the 

December 2010 amendments 

significantly modified the regulation’s 

compliance dates and in-use 

performance requirements. 

The Fleet Requirements establish 

statewide in-use performance standards 

applicable to any person, business, or 

government agency that owns and 

operates in-use nonroad diesel vehicles 

in California with a maximum power of 

25 horsepower (hp) or greater. The 

regulation applies to engines that are 

used to provide motive power, and in 

some cases auxiliary power, to nonroad 

vehicles, which are defined as vehicles 

that (1) cannot be registered and driven 

safely on-road, and (2) are not 

implements of husbandry or 

recreational off-highway vehicles. 

The Fleet Requirements phase in 

according to fleet size as defined by 

total fleet horsepower. Requirements 

begin for large fleets (greater than 5,000 

hp) in 2014; for medium fleets (2,500– 

5,000 hp) in 2017; and for small fleets, 

2,500 hp or less, in 2019. The regulation 

establishes two general compliance 

pathways. Fleets may either (1) meet 

fleet average emission targets (based on 

the combined horsepower of the 

vehicles in the fleet) that become 

increasingly stringent over a ten-year 

period, or (2) satisfy best available 

control technology (BACT) requirements 

within a given compliance year. The 

BACT pathway requires fleets to retire, 

repower, designate for low use, and/or 

retrofit a certain percentage of the fleet’s 

total horsepower each year. Fleets 

demonstrate compliance for a given year 

by taking a sufficient number of such 

actions in the prior year or by utilizing 

previously earned BACT credits 

associated with these actions. For large 

fleets, the annual BACT rates 

(demonstrated either through utilization 

of credits or through action taken during 

the previous calendar year) start out at 

4.8 percent of the fleet’s total 

horsepower in 2014 and increase to 8 

percent for each year from 2015 through 

2017, and to 10 percent for each year 

from 2018 through 2023. For medium 

fleets, the annual BACT rate is 8 percent 

in 2017, increasing to 10 percent for 

each year from 2018 through 2023. 

Small fleets have an annual BACT rate 

of 10 percent for each year from 2019 

through 2028. After the final 

compliance year, all fleets must 

continue to either (1) meet the fleet 

average emission target rate for the final 

target year, or (2) satisfy the applicable 

final annual BACT compliance rate (e.g. 

10 percent) each year until the fleet 

comes into compliance with the fleet 

average emission target. The Fleet 

Requirements also restrict fleets from 

adding older dirtier vehicles to their 

vehicle inventories. 

The regulation EPA is authorizing in 

this decision reflects amendments that 

CARB adopted in 2010. Compared to the 

original Fleet Requirements, the 2010 

amendments delay the original 

compliance schedule by four years. The 

2010 amendments also simplified the 

annual requirements so that in each 

compliance year a fleet must only meet 

a single emissions target—a combined 

NOX plus PM standard—rather than 

separate targets for each of these two 

pollutants. The amendments reduced 

the annual BACT requirements from a 

28 percent turnover and retrofit 

requirement in the prior version of the 

regulation, to a combined 4.8 percent to 

10 percent requirement (as outlined 

above). Finally, the amendments 

removed mandatory retrofitting 

requirements so that retrofit is now a 

compliance option under the BACT 

pathway rather than a mandate. 

Additional information about the 

original and amended Fleet 

Requirements is provided below in the 

section discussing the consistency of the 

Fleet Requirements with section 202(a) 

of the Act. 

B. Clean Air Act Nonroad Engine and 

Vehicle Authorizations 

Section 209(e)(1) of the Act 

permanently preempts any state, or 

political subdivision thereof, from 

adopting or attempting to enforce any 

standard or other requirement relating 

to the control of emissions for certain 

new nonroad engines or vehicles.1 For 

all other nonroad engines (including 

‘‘non-new’’ engines), states generally are 

preempted from adopting and enforcing 

standards and other requirements 

relating to the control of emissions, 

except that section 209(e)(2)(A) of the 

Act requires EPA, after notice and 

opportunity for public hearing, to 

authorize California to adopt and 

enforce such regulations unless EPA 

makes one of three enumerated findings. 

Specifically, EPA must deny 

authorization if the Administrator finds 

that (1) California’s protectiveness 

determination (that California standards 

will be, in the aggregate, as protective of 

public health and welfare as applicable 

federal standards) is arbitrary and 

capricious, (2) California does not need 

such standards to meet compelling and 

extraordinary conditions, or (3) the 

California standards and accompanying 

enforcement procedures are not 

consistent with section 209 of the Act. 

Other states with state air quality 

implementation plans may also adopt 

and enforce such regulations if the 

standards are identical to California’s 

standards. 

On July 20, 1994, EPA promulgated a 

rule interpreting the three criteria set 

forth in section 209(e)(2)(A) that EPA 

must consider before granting any 

California authorization request for 

nonroad engine or vehicle emission 

standards.2 EPA revised these 

regulations in 1997.3 As stated in the 

preamble to the 1994 rule, EPA 

historically has interpreted the 

consistency inquiry under the third 

criterion outlined above (set forth in 

section 209(e)(2)(A)(iii)) to require, at 

minimum, that California standards and 

enforcement procedures be consistent 

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4See 59 FR 36969 (July 20, 1994). 

5See Engine Manufacturers Association v. EPA, 

88 F.3d 1075 (D.C. Cir. 1996). ‘‘. . . EPA was within 

the bounds of permissible construction in 

analogizing § 209(e) on nonroad sources to § 209(a) 

on motor vehicles.’’ 

6See EPA’s Final 209(e) rulemaking at 59 FR 

36969, 36983 (July 20, 1994). 

7 36 FR 17458 (Aug. 31, 1971). Note that the more 

stringent standard expressed here, in 1971, was 

superseded by the 1977 amendments to section 209, 

which established that California must determine 

that its standards are, in the aggregate, at least as 

protective of public health and welfare as 

applicable Federal standards. In the 1990 

amendments to section 209, Congress established 

section 209(e) and similar language in section 

209(e)(1)(i) pertaining to California’s nonroad 

emission standards which California must 

determine to be, in the aggregate, at least as 

protective of public health and welfare as 

applicable Federal standards. 

8See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 

9 40 FR 23102, 23103–23104 (May 28, 1975). 

10 Id. at 23104; 58 FR 4166 (January 13, 1993). 

11 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 

294, 95th Cong., 1st Sess. 301–302 (1977)). 

12 Id. 

13 Id. 

with section 209(a), section 209(e)(1), 

and section 209(b)(1)(C) (as EPA has 

interpreted that subsection in the 

context of section 209(b) motor vehicle 

waivers) of the Act.4

In order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. To be consistent 

with section 209(e)(1), California’s 

nonroad standards and enforcement 

procedures must not attempt to regulate 

engine categories that are permanently 

preempted from state regulation. To 

determine consistency with section 

209(b)(1)(C), EPA typically reviews 

nonroad authorization requests under 

the same ‘‘consistency’’ criteria that are 

applied to motor vehicle waiver 

requests under section 209(b)(1)(C). 

That provision provides that the 

Administrator shall not grant California 

a motor vehicle waiver if she finds that 

California ‘‘standards and 

accompanying enforcement procedures 

are not consistent with section 202(a)’’ 

of the Act. Previous decisions granting 

waivers and authorizations have noted 

that state standards and enforcement 

procedures will be found to be 

inconsistent with section 202(a) if: (1) 

There is inadequate lead time to permit 

the development of the necessary 

technology, giving appropriate 

consideration to the cost of compliance 

within that time, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

In light of the similar language of 

sections 209(b) and 209(e)(2)(A), EPA 

has analyzed requests for California 

authorization of standards for nonroad 

vehicles or engines under section 

209(e)(2)(A) using the same principles 

that it has historically applied in 

analyzing requests for waivers of 

preemption for new motor vehicle or 

new motor vehicle engine standards 

under section 209(b).5 These principles 

include, among other things, that EPA 

should limit its inquiry to the three 

specific authorization criteria identified 

in section 209(e)(2)(A),6 and that EPA 

will give substantial deference to the 

policy judgments California has made in 

adopting its regulations. In previous 

waiver decisions, EPA has stated that 

Congress intended EPA’s review of 

California’s decision-making be narrow. 

EPA has rejected arguments that are not 

specified in the statute as grounds for 

denying a waiver: 

The law makes 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 costs or is 

otherwise an arguably unwise exercise of 

regulatory power is not legally pertinent to 

my decision under section 209, as 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.7

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.8 Thus, EPA’s consideration of 

all the evidence submitted concerning 

an authorization decision is 

circumscribed by its relevance to those 

questions that may be considered under 

section 209(e)(2)(A). 

C. 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. As 

the agency explained in one prior 

waiver decision: 

It is worth noting * * * I would feel 

constrained to approve a California approach 

to the problem which I might also feel unable 

to adopt at the federal level in my own 

capacity as a regulator. 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 shape 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.9

Similarly, EPA has stated that the 

text, structure, and history of the 

California waiver provision clearly 

indicate both a congressional intent and 

appropriate EPA practice of leaving the 

decision on ‘‘ambiguous and 

controversial matters of public policy’’ 

to California’s judgment.10 This 

interpretation is supported by relevant 

discussion in the House Committee 

Report for the 1977 amendments to the 

Clean Air Act.11 Congress had the 

opportunity through the 1977 

amendments to restrict the preexisting 

waiver provision, but elected instead to 

expand California’s flexibility to adopt a 

complete program of motor vehicle 

emission controls. The report explains 

that the amendment is intended to ratify 

and strengthen the preexisting 

California waiver provision and to 

affirm the underlying intent of that 

provision, that is, to afford California 

the broadest possible discretion in 

selecting the best means to protect the 

health of its citizens and the public 

welfare.12

D. Burden and Standard of Proof 

As the U.S. Court of Appeals for the 

D.C. Circuit has made clear in MEMA I, 

opponents of a waiver request by 

California bear the burden of showing 

that the statutory criteria for a denial of 

the request have been met: 

[T]he language of the statute and its 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.13

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 

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14 Id. at 1126. 

15 Id. at 1126. 

16 Id. at 1122. 

17 Id. 

18 Id. 

19 Id. 

20See, e.g., 40 FR 21102–22103 (May 28, 1975). 

21See CARB Resolution 07–19) and subsequently 

modified after supplemental public comment by 

CARB’s Executive Officer by the In-Use Regulation 

in Executive Order R–08–002 on April 4, 2008 

(these regulations are codified at Title 13, California 

Code of Regulations sections 2449 through 2449.3). 

22See 73 FR 58585 (October 7, 2008) and 73 FR 

67509 (November 14, 2008). 

23CARB’s amendments included those of 

December 2008 (and formally adopted in California 

on October 19, 2009); January 2009 (and formally 

adopted in California on December 31, 2009); and, 

a certain subset of amendments adopted by the 

Board in July 2009 in response to California 

Assembly Bill 8 2X (and formally adopted on 

December 3, 2009). In CARB’s February 11, 2010 

request letter to EPA it also noted additional 

amendments adopted in July 2009 and not yet 

formally adopted by California’s Office of 

Administrative Law. Once this last subset of 

amendments was formally adopted CARB planned 

to submit them to EPA for subsequent 

consideration. 

24See 75 FR 11880 (March 12, 2010). 

25See EPA–HQ–OAR–2008–0691–0270. 

26 77 FR 50500 (August 21, 2012). 

27 ‘‘Therefore, EPA will not be considering oral 

testimony or written comments based on the prior 

Federal Register notices, since CARB’s December 

2010 amendments are likely to affect many of these 

prior comments. To the extent any entity believes 

that its prior comments remain pertinent then EPA 

is requiring such comments be resubmitted or 

incorporated into new comments.’’ Id. at 50502. 

EPA did not receive any adverse comment or 

suggestions that it is inappropriate to exclude 

comments submitted prior to the August 12, 2012 

Federal Register notice. As noted by AGC, ‘‘While 

the Clean Air Act has not changed, and the 

questions that EPA must address are one and the 

same, the rule that CARB now seeks the authority 

to enforce is very different from the rule that CARB 

originally submitted to EPA.’’ See EPA’s Hearing 

transcript at 84 (EPA–HQ–OAR–2008–0691–0298). 

CARB reincorporated by reference all of its prior 

submissions regarding the Fleet Requirements. 

28The written transcript of this hearing is at EPA– 

HQ–OAR–2008–0691–0298 (Hearing Transcript). 

EPA received testimony from CARB, the Pacific 

Legal Foundation (PLF), the American Road and 

Transportation Builders Association (ARTBA), the 

Manufacturers of Emission Controls Association 

(MECA), the Associated General Contractors of 

America (AGC), the Construction Industry Air 

Quality Association (CIAQC), and the California 

Construction Trucking Association (CCTA). 

capricious.’’’ 14 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 15

With regard to the standard of proof, 

the court in MEMA I explained that the 

Administrator’s role in a section 209 

proceeding is to: 

consider all evidence that passes the 

threshold test of materiality and * * * 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.16

In that decision, the court considered 

the standards of proof under section 209 

for the two findings related to granting 

a waiver for an ‘‘accompanying 

enforcement procedure.’’ Those findings 

involve: (1) Whether the enforcement 

procedures impact California’s prior 

protectiveness determination for the 

associated standards, and (2) whether 

the procedures are consistent with 

section 202(a). The principles set forth 

by the court, however, are similarly 

applicable to an EPA review of a request 

for a waiver of preemption for a 

standard. The court instructed that ‘‘the 

standard of proof must take account of 

the nature of the risk of error involved 

in any given decision, and it therefore 

varies with the finding involved. We 

need not decide how this standard 

operates in every waiver decision.’’ 17

With regard to the protectiveness 

finding, the court upheld the 

Administrator’s position that, to deny a 

waiver, there must be ‘‘clear and 

compelling evidence’’ to show that 

proposed enforcement procedures 

undermine the protectiveness of 

California’s standards.18 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.19

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

proceedings, but found that the 

opponents of the waiver were unable to 

meet their burden of proof even if the 

standard were a mere preponderance of 

the evidence. Although MEMA I did not 

explicitly consider the standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ as 

compared to a waiver request for 

accompanying enforcement procedures, 

there is nothing in the opinion to 

suggest that the court’s analysis would 

not apply with equal force to such 

determinations. EPA’s past waiver 

decisions have consistently made clear 

that: ‘‘[E]ven in the two areas 

concededly reserved for Federal 

judgment by this legislation—the 

existence of ‘compelling and 

extraordinary’ conditions and whether 

the standards are technologically 

feasible—Congress intended that the 

standards of EPA review of the State 

decision to be a narrow one.’’ 20

E. EPA’s Administrative Process in 

Consideration of California’s Nonroad 

CI In-Use Fleet Requirements 

EPA has conducted three separate 

public notice and comment periods 

associated with three successive 

versions of CARB’s NR CI in-use Fleet 

Requirements. 

On August 8, 2008, CARB requested 

that EPA authorize California to enforce 

its original In-Use Off-Road DieselFueled Fleets regulation adopted at its 

July 26, 2007 public hearing.21 CARB’s 

original regulations required fleets that 

operate nonroad, diesel fueled 

equipment with engines 25 hp and 

greater to meet separate fleet average 

emission standards for NOX and PM, 

respectively. Alternatively, the 

regulations required the vehicles in 

those fleets to comply with BACT 

requirements. Based on this request, 

EPA noticed and conducted a public 

hearing on October 27, 2008, and 

provided an opportunity to submit 

written comment through December 19, 

2008.22 CARB amended the regulations 

between December 2008 and mid-2009. 

On February 11, 2010 CARB requested 

that EPA grant California authorization 

to enforce its In-Use Off- Road DieselFueled Fleets regulation as amended.23

Based on CARB’s February 11, 2010 

request, EPA noticed and conducted a 

public hearing on April 14, 2010, and 

provided an opportunity to submit 

written comment through May 18, 

2010.24

CARB again amended its regulations 

in December 2010 and these 

amendments were formally adopted in 

California on December 14, 2011— 

resulting in the current version of the 

Fleet Requirements which are the 

subject of this authorization decision. 

On March 1, 2012, CARB submitted a 

request that EPA grant California 

authorization to enforce its Fleet 

Requirements as most recently amended 

(Authorization Request).25 Based on 

CARB’s Authorization Request, on 

August 21, 2012 EPA invited comment 

on whether (a) CARB’s determination 

that its standards, in the aggregate, are 

at least as protective of public health 

and welfare as applicable federal 

standards is arbitrary and capricious, (b) 

California needs separate standards to 

meet compelling and extraordinary 

conditions, and (c) California’s 

standards and accompanying 

enforcement procedures are consistent 

with section 209 of the Act.26 The 

Federal Register notice stated that EPA 

would only consider testimony and 

comment submitted in response to the 

current request for comment because the 

CARB regulations were substantially 

amended in December 2010.27 EPA 

conducted a hearing on the 

Authorization Request on September 20, 

2012, in Washington, DC.28 The written 

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29EPA received written comment from: Airlines 

for America (A4A)—EPA–HQ–OAR–2008–0691– 

0297; Manufacturers of Emission Controls 

Association (MECA) (Copy of oral testimony)— 

EPA–HQ–OAR–2008–0691–0300; Steve Milloy 

(Copy of oral testimony)—EPA–HQ–OAR–2008– 

0691–0301; Pacific Legal Foundation (PLF) (copy of 

oral testimony)—EPA–HQ–OAR–2008–0691–0302; 

Associated General Contractors of America (AGC) 

(Copy of oral testimony)—EPA–HQ–OAR–2008– 

0691–0303; PLF—EPA–HQ–OAR–2008–0691–0304; 

Altfillisch Contractors (ACI)—EPA–HQ–OAR– 

2008–0691–0305; Savala Equipment Company— 

EPA–HQ–OAR–2008–0691–0306; Dr. Matthew 

Malkan—EPA–HQ–OAR–2008–0691–0307; Dr. 

James Enstrom—EPA–HQ–OAR–2008–0691–0308; 

Dr. Phalen—EPA–HQ–OAR–2008–0691–0313; 

California Construction Trucking Association 

(CCTA)—EPA–HQ–OAR–2008–0691–0309; 

American Road & Transportation Builders 

Association (ARTBA)—EPA–HQ–OAR–2008–0691– 

0310; Bay Cities Paving and Grading (Bay Cities)— 

EPA–HQ–OAR–2008–0691–0311; Nick Silicz— 

EPA–HQ–OAR–2008–0691–0313; Granite Rock— 

EPA–HQ–OAR–2008–0691–0314; Delta 

Construction—EPA–HQ–OAR–2008–0691–0315; 

United Contractors—EPA–HQ–OAR–2008–0691– 

0316; Construction Industry Air Quality Coalition 

(CIAQC)—EPA–HQ–OAR–2008–0691–0317; 

California Air Resources Board—EPA–HQ–OAR– 

2008–0691–0318 (CARB Written Comments) and 

EPA–HQ–OAR–2008–0691–0319 (CARB 

Supplemental Comments); PLF Request to Reopen 

Comment Period, etc—EPA–HQ–OAR–2008–0691– 

0320. 

30EPA–HQ–OAR–2008–0691–0321. As discussed 

below, EPA believes that interested parties have 

adequate opportunity to present their views through 

both the public hearing and by submitting written 

comment. 

31As explained above, EPA’s authorization 

analysis is guided by precedent related to both 

section 209(e)(2) and to section 209(b), which 

contains similar, and in some cases identical, 

language. See Engine Manufacturers Ass’n v. EPA 

(EMA), 88 F.3d 1075, 1085–87 (D.C. Cir. 1996). 

32 In situations where there are no Federal 

standards directly comparable to the specific 

California standards under review, the analysis then 

occurs against the backdrop of previous waivers 

which determined that the California program was 

at least as protective of the federal program. In a 

prior EPA waiver pertaining to California’s zeroemission vehicle program (ZEV) for which there are 

no comparable Federal standards, EPA also took 

into consideration California’s existing lowemission vehicle program (LEV II) and greenhouse 

gas emission standards (GHG) applicable to lightduty vehicles. ((LEV II + ZEV) + GHG). See 71 FR 

78190 (December 28, 2006), Decision Document for 

Waiver of Federal Preemption for California Zero 

Emission Vehicle (ZEV) Standards (December 21, 

2006). 

33 In situations where there are no Federal 

standards directly comparable to the specific 

California standards under review, the analysis then 

occurs against the backdrop of previous waivers 

which determined that the California program was 

at least as protective of the federal program ((LEV 

II + ZEV) + GHG). See 71 FR 78190 (December 28, 

2006), Decision Document for Waiver of Federal 

Preemption for California Zero Emission Vehicle 

(ZEV) Standards (December 21, 2006). 

34 MEMA I, 627 F.2d at 1122. 

35CARB Authorization Request at 17. 

36 ‘‘BE IT FURTHER RESOLVED that the Board 

hereby determines, in accordance with CAA section 

209(e)(2), that the proposed amendments as they 

affect nonroad vehicles or nonroad engines as 

defined in CAA section 216 (10) and (11), do not 

undermine the Board’s previous determination that 

the regulation’s emission standards, other emissions 

related requirements, and associated enforcement 

procedures are, in the aggregate, at least as 

protective of public health and welfare as 

applicable federal standards, are necessary as part 

of ARB’s off-road emission program to meet 

compelling and extraordinary conditions existing in 

the state, and are consistent with CAA section 209.’’ 

CARB Resolution 10–47EPA–HQ–OAR–2008– 

0691–0283. 

comment period closed on October 22, 

2012.29 In addition, to provide further 

opportunity to submit direct verbal 

comment for affected parties who could 

not participate in the public hearing, 

EPA conducted an informal 

teleconference on October 19, 2012.30

III. Discussion 

A. California’s Protectiveness 

Determination 

Section 209(e)(2)(A)(i) of the Act sets 

forth the first of the three criteria 

governing a request for authorization of 

relevant standards—providing that EPA 

cannot grant the request if the agency 

finds that California was arbitrary and 

capricious in its determination that 

California standards will be, in the 

aggregate, at least as protective of public 

health and welfare as applicable federal 

standards.31

EPA maintains that the phrase 

‘‘California standards’’ means 

California’s entire group of standards 

(i.e. the overall program) that is 

applicable to nonroad engine emissions. 

As explained below, while evaluating 

California’s protectiveness 

determination, EPA compares 

California’s standards to applicable 

federal standards. That comparison is 

undertaken within the broader context 

of the California program applicable to 

nonroad vehicles and engines, for which 

EPA previously has granted 

authorization and which relies upon 

protectiveness determinations that EPA 

in its authorization decisions found not 

to be arbitrary and capricious.32

As noted above, EPA is guided in its 

interpretation of the section 209(e)(2) 

authorization criteria by the similar 

language in section 209(b) pertaining to 

waivers of preemption for new motor 

vehicle standards. Therefore, the 

evaluation of the protectiveness of 

CARB’s nonroad standards under 

section 209(e)(2)(A)(i) follows the 

instruction of section 209(b)(2), which 

states: ‘‘If each State standard is at least 

as stringent as the comparable 

applicable Federal standard, such State 

standard shall be deemed to be at least 

as protective of health and welfare as 

such Federal standards for purposes of 

[209(b)(1)].’’ EPA evaluates the 

stringency of California’s standards 

relative to comparable EPA emission 

standards. To review California’s 

protectiveness determination under 

section 209(e)(2)(A)(i), EPA conducts its 

own analysis comparing the newly 

adopted California standards to 

comparable applicable Federal 

standards. EPA traditionally makes a 

quantitative comparison of relevant 

numeric emission standards to 

determine whether the California 

standards are more or less protective 

than the Federal standards.33

As explained above in the section on 

burden and standard of proof, any 

finding that California’s determination 

was arbitrary and capricious under 

section 209(b)(1)(A) must be based upon 

’’’clear and compelling evidence’ to 

show that proposed [standards] 

undermine the protectiveness of 

California’s standards.’’ 34 Accordingly, 

even if EPA’s own analysis of 

comparable protectiveness, or one 

submitted by a commenter, might 

diverge from California’s analysis, that 

alone would not provide a sufficient 

basis for EPA to make a section 

209(b)(1)(A) finding that California’s 

protectiveness finding is arbitrary and 

capricious. 

1. Based on EPA’s Traditional Analysis, 

is California’s Protectiveness 

Determination Arbitrary and 

Capricious? 

In adopting the initial version of the 

Fleet Requirements, CARB approved 

Resolution 07–19, in which it declared: 

Be it further resolved that the Board hereby 

determines, in accordance with CAA section 

209(e)(2), that to the extent the regulations 

approved herein affect nonroad vehicles or 

nonroad engines as defined in CAA section 

216(10) and (11), the emission standards and 

other requirements related to the control of 

emissions in the regulations approved herein 

are, in the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards, California needs its 

nonroad emission standards to meet 

compelling and extraordinary conditions, 

and the standards and accompanying 

enforcement procedures approved herein are 

consistent with CAA section 209.35

With the most recent Fleet 

Requirements amendments in 2010, the 

Board reaffirmed its protectiveness 

finding in Resolution 10–47.36 CARB 

maintains that there is no basis for EPA 

to find the Board’s determination 

(which applies solely to standards for 

in-use nonroad engines) is arbitrary and 

capricious since EPA’s authority, under 

the CAA, is limited to new engines, 

vehicles, and equipment. As a result, 

EPA has not adopted any federal 

standards or requirements for in-use 

nonroad engines. CARB notes that there 

is no question that its Fleet 

Requirements are at least as protective 

of public health and welfare as 

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37Authorization Request at 18, citing Engine 

Manufacturers Association v. EPA, (D.C. Cir. 1996) 

88 F.3d at 1075, 1089–1090. 

38See 42 U.S.C. 7547 (Section 213 of Clean Air 

Act). 

39 75 FR 8056 (February 23, 2010). 

40CARB Written Comments at 10. 

41See Delta Construction. 

42See Hearing Transcript and written comment 

(ARTBA). 

43 Id. 

44 Id. 

45 Id. 

46 Id, see also CCTA, Savala Equipment Rentals, 

Delta Construction. 

47See Delta Construction. This comment is also 

addressed below under the second authorization 

criterion of whether California needs its standards 

to meet compelling and extraordinary conditions. 

applicable federal standards, given the 

lack of any comparable EPA 

standards.37

As described above, EPA’s traditional 

analysis has been to evaluate 

California’s protectiveness 

determination by comparing the newly 

adopted California standards to 

applicable EPA emission standards for 

the same pollutants from the industry 

sector. CARB is correct that EPA’s 

authority to adopt emission standards 

and other requirements related to the 

control of nonroad emissions is limited 

to new engines, vehicles, and 

equipment,38 and that as a result EPA 

has not adopted any standards or 

requirements for in-use nonroad 

engines. 

EPA already has determined that 

California was not arbitrary and 

capricious in its determination that 

California standards applicable to new 

nonroad CI engines are at least as 

protective as comparable Federal 

standards.39 The in-use Fleet 

Requirements will achieve emission 

reductions in addition to those achieved 

by the previously authorized new 

nonroad engine standards, for which 

CARB made a protectiveness finding 

that EPA found not to be arbitrary and 

capricious. According to CARB, the 

Fleet Requirements are expected to 

result in a reduction of 0.5 tons/day of 

NOX in the South Coast and 0.3 tons/

days in San Joaquin Valley in 2014, 

along with 3.2 tons/day and 1.9 tons/

day in these respective areas in 2023.40

As such, the Fleet Requirements achieve 

additional emission reductions beyond 

those attained under CARB emission 

standards applicable to new nonroad CI 

engines, which EPA has already 

determined to be as protective, in the 

aggregate, as applicable federal 

standards. Accordingly, there is no basis 

for determining that CARB’s 

protectiveness finding with regard to the 

in-use Fleet Requirements is arbitrary 

and capricious. 

Further, as noted above, EPA is 

guided in its interpretation of 

209(e)(2)(A)(i) by section 209(b)(2). 

Section 209(b)(2) states: ‘‘If each State 

standard is at least as stringent as the 

comparable applicable Federal standard, 

such State standard shall be deemed to 

be at least as protective of public health 

and welfare as such Federal standards 

for purposes of paragraph (1).’’ In this 

instance there is no comparable 

applicable Federal standard for in-use 

nonroad CI engines and thus there is no 

basis for determining the CARB’s 

protectiveness finding is arbitrary and 

capricious through the application of 

section 209(b)(2). 

Finally, EPA received no comments or 

evidence suggesting that CARB’s 

protectiveness determination, under 

EPA’s traditional analysis, is arbitrary 

and capricious. In particular, no 

commenter disputes that California 

standards, whether looking at the 

particular California standards being 

authorized in this proceeding or the 

entire suite of California standards for 

nonroad engines, are at least as 

stringent, in the aggregate, as applicable 

federal standards. 

In light of the foregoing, EPA finds 

that CARB’s Fleet Requirements achieve 

additional emission reductions beyond 

CARB’s requirements applicable to new 

nonroad CI engines, and further finds 

that the opponents of authorization have 

not presented evidence to show that 

CARB’s protectiveness determination is 

arbitrary and capricious. Accordingly, 

applying the traditional comparative 

analysis, we cannot find that CARB’s 

protectiveness determination is arbitrary 

and capricious. 

2. Is CARB’s Protectiveness 

Determination Arbitrary and Capricious 

Based on Other Effects of California’s 

Fleet Requirements? 

Having addressed the protectiveness 

inquiry under EPA’s traditional 

analysis, we turn now to the question 

whether we should use a different 

analytical approach and, if so, whether 

a different approach would yield a 

different outcome. EPA received one 

comment suggesting that EPA’s analysis 

under section 209(e)(2)(A)(i) should be 

based on a broader inquiry into the 

effects of CARB’s Fleet Requirements.41

Relatedly, EPA received one other 

comment specifically questioning 

whether CARB’s Fleet Requirements are 

as protective of applicable Federal 

requirements in light of the Fleet 

Requirements’ alleged adverse impacts 

on needed transportation and 

infrastructure development across the 

country as well as in California.42 The 

latter commenter suggested, for 

example, that CARB’s rule ‘‘could’’ 

severely impact efforts at improving the 

nation’s infrastructure because 

transportation projects by necessity 

involve moving construction equipment 

across state lines. The commenter stated 

that equipment associated with such 

national projects would necessarily 

have to meet CARB’s Fleet 

Requirements, increasing costs, unless 

fleet operators were able to differentiate 

such equipment that would only be 

used for California projects.43 The 

commenter argues that increased costs 

as a result of the Fleet Requirements 

could in turn prevent or delay needed 

construction of infrastructure such as 

roads, schools, housing and levees, and 

that such delay or prevention could 

adversely affect public health and safety 

impacts in California and in other 

states.44 EPA received further comment 

suggesting that CARB is prioritizing one 

public health issue (air quality) over 

another (safe roads and infrastructure 

improvements) and thus California’s 

protectiveness determination is 

‘‘arbitrary and capricious.’’ 45

EPA also received a series of 

comments from general contracting 

companies and others that highlighted 

what they believe to be the adverse 

economic impacts of the Fleet 

Requirements. For example, several 

commenters stated that the regulation 

would have some combination of the 

following impacts: Significant layoffs, 

increased unemployment, and 

disadvantage to family-owned and other 

small businesses. Such impacts, the 

commenters argue, would have negative 

rather than the intended positive effects 

on public health.46 One commenter 

asserted that the correlation between 

poor health and poverty or lack of 

employment is much stronger than the 

correlation between poor health and air 

pollution. The commenter claims that 

because of such economic and social 

impacts, regulations such as the Fleet 

Requirements will be harmful to 

California’s citizens and that the health 

benefits from CARB’s regulation are 

dubious if not counterproductive.47

These comments, by and large, do not 

refer specifically to CARB’s 

protectiveness determination or section 

209(e)(2)(A)(i) and it is not clear 

whether commenters are referring to 

EPA’s analysis under that section. 

Finally, EPA received comment that 

does refer to CARB’s protectiveness 

determination, suggesting it was 

arbitrary and capricious, but basing this 

claim on a variety of concerns that do 

not directly relate to CARB’s actual 

protectiveness determination (e.g. 

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48See CCTA. 

49See CARB’s Written Comments. 

50See EPA’s greenhouse gas waiver decision 

issued in 2009 (2009 GHG Waiver Decision) at 74 

FR 32743 (July 8, 2009). 

51 Id. at 4–5 (citing MEMA I, 627 F.2d at 1122 

[‘‘(C)ongressional intent to provide California with 

the broadest discretion in setting regulations it finds 

protective of the public health and welfare.’’]); see 

also 40 FR 23102, 23104 (May 28, 1975). 

52 Id. 

53See (2009 GHG Waiver Decision) at 74 FR 

32743, 32758. 

alleged flaws in CARB’s emission 

modeling—including CARB’s estimates 

of economic recovery scenarios—as well 

as concerns with the alleged impact of 

the Fleet Requirements on fleet operator 

assets leading to more unemployment 

and associated poor health, and 

concerns related to the health effects of 

PM2.5).48

CARB’s written comments note that 

the Board has repeatedly determined 

that its in-use off-road regulations are, 

in the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards. In addition to the fact 

that EPA only has authority to adopt 

standards related to the control of 

emissions for new nonroad engines, 

CARB notes that EPA has previously 

stated that the phrase ‘‘state standards’’ 

as used in the protectiveness 

determination means the entire 

California set of standards (i.e. program) 

applicable to the relevant category of 

vehicles or engines. Further, CARB 

asserts that EPA has previously granted 

authorization to California’s emission 

standards for new nonroad engines, and 

the in-use Fleet Requirements will yield 

emission reductions in addition to the 

new nonroad engine standards that were 

the subject of prior protectiveness 

findings, thus ensuring that the Fleet 

Requirements are of necessity more 

stringent than those covered by federal 

new engine emission standards alone.49

CARB responds to criticisms that it 

prioritized air quality health benefits 

and did not consider dis-benefits (e.g. 

increased costs for, and possible delay 

of, needed highway safety projects and 

improvements or other infrastructure) 

by stating that the latter set of concerns 

falls outside the scope of a section 209 

protectiveness determination. CARB 

maintains that the plain language and 

intent of section 209(e)(2)(A)(i) is that 

review of California’s protectiveness 

determination should be based 

exclusively on whether its ‘‘standards 

will be, in the aggregate, at least as 

protective of public health and welfare 

as applicable Federal standards.’’ Since 

this language is almost identical to the 

protectiveness criterion language in 

section 209(b)(1), CARB maintains that 

EPA should thus follow the directive of 

Congress in section 209(b)(2) that: 

If each State standard is at least as stringent 

as the comparable applicable Federal 

standard, such State standard shall be 

deemed to be at least as protective of health 

and welfare as such Federal standards for 

purpose of paragraph (1). 

CARB points to EPA’s 2009 waiver of 

California’s light-duty greenhouse gas 

standards (EPA’s 2009 GHG Waiver) 

where EPA concluded that, in 

considering whether California’s 

protectiveness determination is arbitrary 

and capricious under section 

209(b)(1)(A), the agency ‘‘has always 

interpreted ‘applicable Federal 

Standards’ as limiting EPA’s inquiry to 

motor vehicle emission standards 

established by EPA under the Clean Air 

Act that apply to the same cars and the 

same air pollutants or group of 

pollutants as considered by California’s 

aggregate protectiveness finding.’’ 50

CARB argues that same analysis should 

apply to nonroad authorizations. CARB 

maintains that if EPA were to require 

the Board to consider factors other than 

aggregate emission standards in making 

the Board’s protectiveness 

determination, this would undermine 

the broad discretion that Congress 

intended to provide California in 

making policy decisions on how best to 

address California’s severe air 

pollution.51

CARB also disagrees with opponents’ 

arguments that the Fleet Requirements 

will delay highway safety 

improvements. CARB notes that, even 

before the 2010 amendments, the 

regulations’ expected maximum costs 

were projected to be so small (less than 

one percent) compared to overall 

construction spending, that they would 

not be expected to decrease or delay 

constructions projects. With the 2010 

amendments, CARB expects compliance 

costs to be significantly lower and even 

less likely to delay construction 

projects, including highway safety 

projects.52

EPA agrees that the phrase ‘‘California 

standards’’ means the entire California 

nonroad emissions program (i.e. the set 

of all nonroad standards), or at the very 

least all of California’s standards for 

nonroad CI engines, which is the 

category of engines being regulated by 

California in the Fleet Requirements. 

Therefore, as explained above, when 

evaluating California’s protectiveness 

determination, EPA compares the 

California requirements to federal 

standards applicable to the relevant 

category of engines. Again, that 

comparison is undertaken within the 

broader context of the previously 

authorized California standards for the 

relevant category of engines, which rely 

upon protectiveness determinations that 

EPA previously has found were not 

arbitrary and capricious. Finally, as 

discussed above, no commenter 

disputes that California standards, 

whether looking at the particular 

standards being authorized in this 

proceeding or the entire suite of 

standards for nonroad engines, are more 

stringent than federal standards. 

The only issue in dispute is whether 

other information provided by 

commenters, outlined at the beginning 

of this section, provides clear and 

compelling evidence that California was 

arbitrary and capricious in finding its 

standards are in the aggregate at least as 

protective of public health and welfare 

as applicable federal standards. 

EPA previously has considered 

whether its traditional analysis is 

sufficient to properly review CARB’s 

protectiveness determination with 

regard to the ‘‘in-use effects’’ of CARB’s 

regulations. Analysis of such in-use 

effects remained focused on the actual 

emission reductions/benefits expected 

from CARB’s regulation.53 In EPA’s 

2009 GHG Waiver Decision granting a 

waiver of preemption for CARB’s 

greenhouse gas (GHG) standards for 

light duty vehicles, we noted that, given 

the legislative history and text of section 

209(b)(2), EPA would need a concrete 

factual basis to examine the in-use effect 

of California’s GHG standards on its 

broader LEV II program as compared to 

the Federal Tier II program. EPA did not 

take a position as to the validity of the 

suggestion that the type of analysis 

discussed in EPA’s traditional 

protectiveness analysis is insufficient. 

Rather, EPA reached the conclusion that 

commenters who opposed the GHG 

waiver did not meet their burden of 

proof in presenting clear and 

compelling factual evidence (in the 

context of the regulatory effect on realworld in-use emissions) that CARB’s 

protectiveness determination was 

arbitrary and capricious. 

We recount this history to contrast it 

with the comments received opposing 

the Fleet Requirements authorization on 

the basis of various safety, economic, 

and health arguments. In the instant 

proceeding, EPA received no comments 

indicating why EPA’s review of CARB’s 

protectiveness determination with 

regard to the Fleet Requirements should 

be broader than past reviews, and/or 

should be based on anything other than 

an examination of the stringency of 

comparable applicable federal 

standards. 

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54See MEMA I, 627 F.2d at 1122 

[‘‘(C)ongressional intent to provide California with 

the broadest possible discretion in setting 

regulations it finds protective of the public health 

and welfare.’’]; see also 40 FR 23102, 23104 (May 

28, 1975). 

55 40 FR 23101, 23102 (May 28, 1975). 

56See S. Rep. No. 192, 89th Cong., 1st Sess. 5– 

8 (1965); H.R. Rep. No. 728, 90th Cong., 1st Sess. 

23 (1967), U.S. Code Cong. & Admin. News 1967, 

p. 1938. 

Further, the opponents of the 

Authorization Request provide no 

analysis of the statutory language or 

history of section 209(e)(2)(A)(i) to 

support their view that the review of the 

‘‘protectiveness’’ finding should be 

broader than EPA’s traditional review. 

Nor do they provide any significant 

analysis or calculus as to how EPA 

should or would weigh these competing 

interests (i.e. those that go beyond the 

comparative stringency of applicable 

state and federal emission standards) in 

making its determination. While EPA 

recognizes that commenters have 

expressed significant concerns regarding 

the potential business impacts of the 

Fleet Requirements on individual 

contractors and on employment, a 

review of CARB’s protectiveness 

determination based upon such factors 

would be inconsistent with the broad 

discretion that Congress intended to 

provide California in making policy 

decisions on how best to address 

California’s severe air pollution.54 As 

EPA has previously concluded: 

[Congressional] sponsors of the (waiver) 

language eventually adopted referred 

repeatedly to their intent to make sure that 

no ‘‘Federal bureaucrat’’ would be able to tell 

the people of California what auto emission 

standards were good for them as long as they 

were stricter than the Federal standards.55

In our view, the statutory language of 

section 209(e)(2)(A)(i)—both on its face 

and as read together with 209(b)(2)— 

reflects Congress’s intention that EPA 

evaluate only the comparative 

stringency of the relevant California and 

EPA emission standards. As discussed 

above, the text, structure, and history of 

the California waiver provision clearly 

indicate a congressional intent that EPA 

leave the decision on ‘‘ambiguous and 

controversial matters of public policy’’ 

to California’s judgment. That has been 

EPA’s consistent practice under section 

209. As the court stated in MEMA I, 

Congress’s intent in amending the 

protectiveness determination language 

in 1977 was to afford California the 

broadest possible discretion in selecting 

the best means to protect the health of 

its citizens. EPA therefore considers it 

inappropriate, in the context of 

reviewing CARB’s protectiveness 

determination, to second-guess CARB’s 

policy choices or to weigh competing 

health and welfare interests that are best 

left to California. 

As explained below under the third 

authorization criterion—consistency 

with section 209 (including consistency 

with 202(a))—EPA interprets the ‘‘cost 

of compliance’’ in section 202(a) to refer 

to the direct economic costs of CARB’s 

standards and the timing of a particular 

emission control regulation rather than 

to its social implications.56 Similarly, 

EPA believes it appropriate to limit our 

examination for purposes of the 

protectiveness comparison to the 

specific effects the California and EPA 

emission standards have on emissions 

rather than performing an analysis of 

social impacts or other secondary 

implications. Policy decisions with 

regard to how various potential nonemissions impacts of an emission 

regulation can or should be weighed 

against one another is inherently and 

properly within the sphere of the state 

regulatory authority promulgating the 

regulation. Such decisions should not 

be made or reviewed by EPA, which 

Congress has given the limited role of 

reviewing the regulations based on the 

three specified and relatively narrow 

statutory criteria, consistent with 

Congress’s intent to uphold California’s 

broad regulatory discretion in this 

sphere. 

For all these reasons, EPA declines to 

depart from its traditional analysis of 

the protectiveness criterion under 

section 209(e)(2)(A)(i), as discussed 

above. Even if there were a valid basis 

for considering the types of non-air 

quality impacts alleged by the 

opponents of the Authorization Request, 

the opponents did not meet their burden 

to provide clear and convincing 

evidence that CARB’s analysis of the 

effects of the Fleet Requirements is 

unreasonable. For EPA to make a 

section 209(e)(2)(A)(i) finding that 

California’s protectiveness 

determination is arbitrary and 

capricious, it is not enough for 

authorization opponents to provide 

competing analysis or alternative policy 

considerations and arguments. To 

support a denial of authorization under 

this criterion, commenters must show 

that California’s analysis, or the 

assumptions on which California relied 

to support its protectiveness 

determination, were arbitrary and 

capricious. In this instance, the 

opponents of the authorization have 

suggested that CARB’s Fleet 

Requirements could make construction 

projects more expensive and this could 

lead to delays. But they have not 

introduced any actual evidence that 

such projects will be suspended due to 

the costs associated with the Fleet 

Requirements, and certainly not that the 

projected increase in costs, as estimated 

by CARB after the 2010 amendments, 

will be significant enough to delay or 

prevent such projects. Similarly, the 

opponents of the waiver have not 

introduced substantial evidence that the 

Fleet Requirements themselves—as 

opposed to a host of other factors, 

including the economic downturn, that 

have affected the economy over the last 

several years—will result in a loss in the 

number of employees or actual business. 

In the absence of any such evidence, 

EPA could not find California’s 

protectiveness determination to be 

arbitrary and capricious even if these 

alleged impacts were an appropriate 

subject for analysis under section 

209(e)(2)(A)(i). 

Regarding the comment that CARB’s 

regulation could adversely affect health 

and welfare in other states, EPA does 

not find the comment to be a basis for 

judging California’s protectiveness 

determination to be arbitrary and 

capricious for two reasons. First, a 

change in emissions outside of 

California would not lead to a different 

conclusion regarding the relative 

protectiveness of the Fleet Requirements 

to federal requirements within 

California. Second, the commenters do 

not provide any substantive or factual 

evidence to show significant emissions 

impacts in other states. We would also 

note that other states may decide 

independently to adopt California’s 

regulations. 

In response to the comment that 

California’s regulations are arbitrary and 

capricious, we note that EPA’s sole 

review under section 209(e)(2)(A)(i) is 

whether California’s protectiveness 

determination was arbitrary and 

capricious. Congress did not give EPA 

wide-ranging authority to examine the 

overall reasonableness of California’s 

regulations. As discussed above, the 

policy decisions made by CARB in 

enacting its regulations are not reviewed 

generally by EPA, and, as Congress 

intended, EPA leaves such policy 

decisions to California. 

3. Section 209(e)(2)(A)(i) Conclusion 

In light of the foregoing, based on the 

record before us, EPA finds that 

opponents of the authorization have not 

shown that California 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. 

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57See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

58See EPA’s 2009 GHG Waiver Decision wherein 

EPA rejected the suggested interpretation of section 

209(b)(1)(B) as requiring a review of the specific 

need for California’s new motor vehicle greenhouse 

gas emission standards as opposed to the traditional 

interpretation (need for the program as a whole) 

applied to local or regional air pollution problems. 

59See STAFF REPORT: INITIAL STATEMENT 

OF REASONS FOR PROPOSED RULEMAKING 

(ISOR) at EPA–HQ–OAR–2008–0691–0002, 

attachment A at 7–10. EPA notes that while CARB 

has incorporated by reference its earlier 

submissions to EPA docket EPA–HQ–OAR–2008– 

0691 we recognize that CARB has modified its 

emission inventory modeling. Nevertheless, the NR 

CI legacy fleet in California continues to present 

California with serious air quality issues according 

to CARB. 

60See CARB Resolution 10–47 at EPA–HQ–OAR– 

2008–0691–0283. Specifically, the Board stated, in 

part: 

WHEREAS, in-use off-road diesel vehicles 

operating in the state, as a class, continue to be a 

significant source of air pollution emissions in 

California that contribute to continuing violations 

of the national ambient air quality standards 

(NAAQS) for both particulate matter (PM) less than 

2.5 microns (PM2.5) and ozone, and to continuing 

localized health risk, including premature death, 

associated with exposure to PM2.5; 

WHEREAS, Staff Report 2007 further discussed 

the results of ARB staff’s evaluations of the noncancer health effects of exposure to primary and 

secondary PM emissions from the vehicles subject 

to the initially proposed Off-Road regulation, and 

these evaluations indicated that exposure to these 

emissions can be associated with premature deaths 

and other non-cancer health impacts; 

WHEREAS, the United States Environmental 

Protection Agency (U.S. EPA) in a recently 

published review of the PM-related health science 

literature, which is the first part of an ongoing 

review of the national ambient air quality standards 

for PM, concluded that long-term exposure to PM2.5

is causally associated with premature mortality, and 

that premature deaths caused by PM2.5 occur at 

levels as low as 5.8 micrograms per cubic meter, 

which is considerably lower than the current 

national standard of 15 micrograms per cubic meter; 

WHEREAS, the U.S. EPA risk assessment 

methodology is the basis for ARB’s estimate that 

9,200 (7,300 to 11,000, 95 percent confidence 

interval) premature deaths occur annually in 

California and that reducing emissions to meet the 

Federal standard would result in 2,700 fewer 

premature deaths annually; 

WHEREAS, the Board further finds based on its 

independent judgment and analysis of the entire 

record before it that: 

In-use off-road diesel vehicles and engines that 

operate in the State—whether based in California or 

not—continue to be significant contributors of 

diesel PM and NOX emissions, which California 

must reduce to attain the ozone and PM2.5 NAAQS 

and to reduce the health risks associated with such 

pollutants; 

Even with the amendments and economic relief 

proposed, the proposed amended regulation would 

significantly reduce diesel PM and NOX emissions 

and associated cancer, premature mortality, and 

other adverse health effects statewide, such that 

emission reductions from the proposed amended 

regulation are expected to prevent 470 premature 

deaths from 2014 to 2029. 

61CARB Authorization Request at 18, citing 7 FR 

4052, 4054 (July 11, 2011). 

62CARB Authorization Request at 18, citing 74 FR 

32744, 32762 (July 8, 2009); 76 FR 77515, 77518 

(December 13, 2011). 

63CARB notes: Ambient PM2.5 is associated with 

premature mortality, aggravation of respiratory and 

cardiovascular disease, asthma exacerbation, 

chronic and acute bronchitis and reductions in lung 

function. Ozone is a powerful oxidant. Exposure to 

ozone can result in reduced lung function, 

increased respiratory symptoms, increased airway 

hyper-reactivity, and increased airway 

inflammation. Exposure to ozone is also associated 

with premature death, hospitalization for 

cardiopulmonary causes, and emergency room 

visits for asthma. 

B. Does California need its standards to 

meet compelling and extraordinary 

conditions? 

Section 209(e)(2)(A)(ii) instructs that 

EPA cannot grant an authorization if the 

Agency finds that California ‘‘does not 

need such California standards to meet 

compelling and extraordinary 

conditions . . ..’’ EPA’s inquiry under 

this second criterion (found both in 

paragraphs 209(b)(1)(B) and 

209(e)(2)(A)(ii)) has been to determine 

whether California needs its own mobile 

source pollution program (i.e. set of 

standards) for the relevant class or 

category of vehicles or engines to meet 

compelling and extraordinary 

conditions, and not whether the specific 

standards that are the subject of the 

authorization or waiver request are 

necessary to meet such conditions.57 In 

a 2009 waiver action, for example, EPA 

examined the language of section 

209(b)(1)(B) and reiterated its 

longstanding traditional interpretation 

that the better approach for analyzing 

the need for ‘‘such State standards’’ to 

meet ‘‘compelling and extraordinary 

conditions’’ is to review California’s 

need for its program (i.e. set of 

standards) as a whole, for the class or 

category of vehicles being regulated, as 

opposed to its need for the individual 

standards that are the subject of a 

waiver or authorization request.58

As noted above, CARB first adopted 

its Fleet Requirements in 2007. CARB 

designed the 2007 regulation to address 

its determination that legacy fleets—and 

particularly nonroad CI vehicles—were 

responsible for significant PM and NOX

emissions. CARB’s Initial Statement of 

Reasons (ISOR) states, in part: 

Off-road vehicles are a significant source of 

diesel particulate matter, as well as NOX

emissions that lead to ozone and ambient 

PM. Statewide, they are responsible for 

nearly a quarter of the total PM emissions 

from mobile diesel sources and nearly a fifth 

of the total NOX emissions from mobile 

diesel sources. Although increasingly 

stringent new engine standards are reducing 

emissions from off-road diesel vehicles over 

time, because of their durability, most 

vehicles operate for several decades before 

being retired. Thus, in-use off-road diesel 

vehicles would continue to pose significant 

health risk for many years if this proposed 

regulation is not adopted. . . . without 

reductions from this large source category, 

the South Coast and San Joaquin Valley 

would be unable to attain the federal ambient 

air quality standards. 

. . . [E]missions would trend naturally 

down as the fleet gradually turned over to 

newer, cleaner engines. However, these 

reductions are not sufficient for many areas 

of the state to meet clean air standards. 

Because of this, the proposed regulation 

accelerates this anticipated reduction in 

emissions.59

The 2010 amendments affirmed 

CARB’s longstanding position that 

California continues to need its own 

nonroad engine and vehicle program to 

address serious air pollution problems 

the state still confronts.60 CARB’s 

Authorization Request notes that 

California and particularly the South 

Coast and San Joaquin Valley air basins 

continue to experience some of the 

worst air quality in the nation and 

continue to be in non-attainment with 

national ambient air quality standards 

(NAAQS) for fine particulate matter 

(PM2.5) and ozone.61 ‘‘The unique 

geographical and climatic conditions, 

and the tremendous growth in 

California’s on- and off-road vehicle 

population, which moved Congress to 

authorize the State to establish on-road 

motor vehicle standards in 1970 and offroad engine standards in 1990, still exist 

today. . . . Nothing in these 

conditions has changed to warrant a 

change in this determination. 

Accordingly, there can be no doubt of 

the continuing existence of compelling 

and extraordinary conditions justifying 

California’s need for its own mobile 

source emissions control program.’’ 62

CARB’s Authorization Request also 

notes the continuing importance and 

need to address the NAAQS for 

pollutants considered to be harmful to 

public health, including PM2.5 and 

ozone.63 For areas in California that 

exceed the NAAQS, CARB is 

responsible under CAA section 110 for 

developing a State Implementation Plan 

(SIP) that describes how the state will 

attain the standards by certain 

deadlines. The South Coast Air Basin 

and the San Joaquin Valley Air Basin 

are in nonattainment for both PM2.5 and 

the 8-hour ozone standard. Significant 

reductions in NOX emissions are needed 

to attain the standards because NOX

leads to formation in the atmosphere of 

both ozone and PM2.5. Diesel PM 

emissions reductions are also needed 

because diesel PM contributes to 

ambient concentrations of PM2.5. The 

South Coast and San Joaquin Valley air 

basins are both required to be in 

attainment with the PM2.5 standard by 

2014. The San Joaquin Valley and South 

Coast air basins are required to be in 

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64CARB Authorization Request at 3–4. 

65 Id. 

66EPA–HQ–OAR–2008–0691–0002 Attachment 

A, at 13. 

67CARB Authorization Request at 18. 

68As explained below, EPA believes it important 

to examine the language of section 209(e)(2)(A)(ii) 

precisely as Congress set it forth. Therefore, to be 

clear, the phrase ‘‘the need for California emission 

standards’’ does not appear in this section. Rather, 

the language is ‘‘No such authorization shall be 

granted if the Administrator determines that—(ii) 

California does not need such California standards 

to meet compelling and extraordinary conditions.’’ 

EPA’s interpretation of this section includes an 

examination of the significance of the word ‘‘such’’ 

before ‘‘California standards.’’ 

69PLF at 1. 

70PLF cites MEMA I at 1112–1113. 

71S Rep No 90–403 at 33 (1967) (emphasis 

added). 

attainment of the 8-hour ozone standard 

by 2023.64

The SIP for the South Coast and San 

Joaquin air basins demonstrates 

attainment of the PM2.5 standard by 

2014, but only based on projected 

achievement of PM2.5 emission 

reductions of nearly 15 percent in the 

South Coast Air Basin and 25 percent in 

the San Joaquin Valley Air Basin. 

CARB’s Authorization Request states 

that NOX emissions must be reduced by 

approximately 50 percent to meet the 

PM2.5 standard in the South Coast and 

the San Joaquin Valley air basins. Even 

greater NOX reductions, on the order of 

75 to 88 percent, will be needed to 

achieve the 8-hour ozone standard by 

2023. California’s 2007 SIP included the 

initial version of the Fleet Requirements 

as a control measure. CARB’s legal 

commitment to achieve the emission 

reductions specified in the SIP relies 

upon the emission reductions from the 

Fleet Requirements regulation in the 

South Coast and the San Joaquin 

Valley.65 In its ISOR, CARB notes 

‘‘Despite the major economic recession 

and revisions to the off-road regulation 

inventory, the in-use off-road diesel 

vehicle category remains an important 

source of emissions. In 2010, staff 

estimates the off-road vehicles subject to 

the off-road regulation are the fourth 

largest source of diesel PM in California 

(7 percent of total) and the sixth largest 

source of NOX from all sources (4 

percent of total).’’ 66

1. Should EPA Review this Criterion 

Based on the Need for California’s 

Nonroad Program or the Need for the 

Fleet Requirements? 

In addressing whether California 

needs ‘‘such State standards to meet 

compelling and extraordinary 

conditions,’’ we must first address the 

question whether it is appropriate for 

EPA to evaluate this criterion based on 

California’s need for its nonroad 

emission program as a whole, or 

whether we instead should evaluate 

only the particular standards being 

addressed in this authorization 

proceeding. 

As noted above, CARB maintains that 

the relevant inquiry is whether 

California needs its own emission 

control program as opposed to the need 

for any given standard as necessary to 

meet compelling and extraordinary 

conditions. CARB notes that in prior 

decisions the Administrator has 

determined that: 

‘‘[C]ompelling and extraordinary 

conditions’’ does not refer to levels of 

pollution directly, but primarily to the factors 

that tend to produce them: Geographical and 

climatic conditions that, when combined 

with large numbers and high concentrations 

of automobiles create serious air pollution 

problems.67

EPA has also consistently held that 

the phrase ‘‘the need for California 

emission standards’’ refers to the need 

for California’s program (i.e. set of 

standards) applicable to the relevant 

category of vehicles or engines, and not 

the need for the particular standards 

that are the subject of an authorization 

request. In the instant proceeding, EPA 

received comments disputing this 

approach, which we discuss below. 

a. Comment From Pacific Legal 

Foundation 

EPA received comment from the 

Pacific Legal Foundation (PLF) 

challenging both California’s and EPA’s 

interpretation of the ‘‘compelling and 

extraordinary conditions’’ criterion in 

section 209(e)(2)(A)(ii). PLF asserts that 

based on both the plain language of the 

provision and its legislative history, the 

word ‘‘standards’’ should be read to 

refer only to particular standards, and 

not to the entire California program for 

the relevant category of engines or 

vehicles.68

PLF contends that California must 

apply for a waiver or authorization on 

a case-by-case basis 69 and that the Clean 

Air Act requires EPA not grant 

California any waiver or authorization 

unless California makes a showing that 

it has ‘‘compelling and extraordinary 

conditions’’ necessitating the particular 

standards for which a waiver or 

authorization is sought. PLF argues that 

CARB has put little evidence in the 

record about the need for the Fleet 

Requirements. Further, PLF asserts that 

‘‘Congress intended the word ‘standard’ 

in section 209 to mean quantitative level 

of emissions’’ 70 and that there is no 

indication in the text or legislative 

history that by using the term 

‘‘standard’’ Congress really meant 

‘‘program’’ or anything other than 

‘‘standard.’’ PLF states that Congress 

could have used the term ‘‘program’’ 

rather than the term ‘‘standards’’ in the 

statute and delegated to EPA the 

responsibility to make case by case 

decisions on whether a particular 

standard was required or needed. 

In addition, PLF cites the legislative 

history of section 209 to support its 

position that standards need to be 

justified on an individual basis. 

Specifically, PLF cites the Senate 

Committee report for the 1967 

legislation, which in discussing section 

208 (the predecessor to what is now 

section 209) refers to California’s 

‘‘compelling and extraordinary 

circumstances’’ that are ‘‘sufficiently 

different from the nation as a whole to 

justify standards . . . [that] may, from 

time to time, need to be more stringent 

than national standards.’’ 71 PLF argues 

that this language indicates that 

Congress intended California to justify 

specific standards ‘‘from time to time,’’ 

and that it intended EPA to deny a 

waiver if California does not require or 

need particular standards. PLF claims 

that if Congress wanted to apply a need 

tests based on California’s need for a 

program as a whole then it could have 

stated so. 

PLF further contends that in 1977, 

when Congress amended section 

209(b)—Congress continued to focus on 

‘‘standards’’ but with two important 

additions. First, Congress amended the 

language relating to the protectiveness 

determination to clarify that California’s 

standards need only be at least as 

protective as federal standards ‘‘in the 

aggregate’’—making clear that California 

did not need to determine that each 

individual standard would be more 

protective or stringent than applicable 

federal standards. PLF asserts that this 

clarification, however, applied only to 

the protectiveness determination. 

Second, Congress tightened section 

209(b)(1)(B) to provide that ‘‘no such 

waiver shall be granted if EPA finds that 

California . . . does not need such 

standards to meet compelling and 

extraordinary conditions . . ..’’ 

(emphasis added). PLF asserts that the 

preexisting 1967 language had provided 

that EPA ‘‘shall’’ grant a waiver unless 

it finds California did ‘‘not require’’ the 

underlying standards, whereas the 1977 

amendments expressly prohibited EPA 

from granting a waiver where California 

did not ‘‘need’’ a particular emissions 

standard. Based on the foregoing, PLF 

argues that the 1977 amendments 

created two separate tests for 

‘‘standards.’’ The ‘‘protectiveness’’ test 

(under the first waiver criterion), which 

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72See 74 FR 32744, 32762 (July 8, 2009). 

73 74 FR 32744, 32759–32762 (July 8, 2009). 

74PLF at 4. 

75See 38 FR 30136 (November 1, 1973). 

76 MEMA I, 627 F.2d at 1110. 

applies to the protectiveness of 

California’s aggregate set of standards, 

and the ‘‘needs’’ test (under the second 

waiver criterion), which is based on a 

need for the particular standards for 

which a waiver is sought and focuses on 

whether there are compelling conditions 

in the state necessitating that particular 

standard. 

PLF also maintains that EPA’s 

traditional interpretation is contrary to 

plain meaning of the CAA. PLF asserts 

that the term ‘‘program’’ is not used in 

section 209 and that the phrase ‘‘such 

California standards’’ in 209(e)(2)(A)(ii) 

does not refer to the entire California 

mobile source emissions program. PLF 

states that the phrase ‘‘in the aggregate’’ 

appears only once in section 209 and 

only under the first waiver prong added 

in the 1977 amendments. ‘‘In the 

aggregate’’ is set off by commas, PLF 

argues, providing evidence that it 

pertains only to protectiveness under 

the first waiver criterion, and does not 

apply to the ‘‘needs’’ inquiry under the 

second waiver criterion. PLF maintains 

that the outcome of the protectiveness 

test depends on California making a 

determination, whereas the outcome of 

the needs tests depends on EPA making 

a finding. Further, PLF argues that the 

protectiveness test affirmatively 

mandates that EPA approve the waiver 

application if California makes the 

protectiveness determination, while the 

‘‘needs test’’ expressly prohibits EPA 

from granting a waiver if EPA makes the 

requisite finding. Thus, PLF argues, the 

first prong is written to broaden the 

likelihood of issuing a waiver, whereas 

the second prong is written to narrow it. 

PLF maintains that the two waiver 

prongs were intended to address 

entirely different issues. Congress gave 

EPA greater authority to approve 

waivers under the first prong, PLF 

asserts, but lesser authority to approve 

waivers under the independent needs 

test. PLF highlights that the sentence 

regarding ‘‘protectiveness’’ applies to 

both ‘‘standards and other 

requirements,’’ whereas the sentence 

establishing the needs test refers only to 

standards. This makes sense, according 

to PLF, because Congress intended EPA 

to look holistically at protectiveness and 

not at whether an individual standard 

was as protective. To ensure CARB did 

not abuse the privilege, PLF argues, 

Congress provided under the ‘‘needs’’ 

criterion that California could not adopt 

any standard that it did not need or that 

was not specifically designed to address 

California’s ‘‘peculiar’’ conditions. 

Finally, PLF maintains that EPA’s 

traditional interpretation leads to absurd 

results. PLF states that EPA itself has 

acknowledged that conditions in 

California may improve, thereby 

eliminating the need for the authority to 

waive preemption of California 

standards.72 Under EPA’s traditional 

interpretation, PLF argues, EPA would 

be forced to deny a waiver request based 

on a finding that there is no longer a 

need for the California program. PLF 

argues that such a finding would put in 

jeopardy past waivers, as the positive 

(program-wide) ‘‘needs’’ finding 

underpinning those past waivers would 

no longer be valid. PLF further 

comments that a broad negative finding 

with regard to ‘‘needs’’ would eliminate 

CARB’s ability to maintain its own 

mobile source emission standards 

program, separate from the federal 

program. In such circumstances, PLF 

argues, EPA would be substituting its 

policy judgment for that of Congress. If 

one interpretation leads to absurd 

results and another does not, PLF 

argues, then the former must be rejected. 

b. EPA Response 

EPA examined these same issues at 

length in the Agency’s 2009 decision 

granting California’s request for a waiver 

of preemption of its GHG standards for 

light duty vehicles.73 Consistent with 

that examination, EPA continues to 

believe that the traditional approach to 

the compelling and extraordinary 

conditions criterion is appropriate. That 

is, EPA believes it is proper to review 

California’s need for its emission 

program (i.e. set of standards) applicable 

to the relevant category of vehicles or 

engines as a whole, rather than to follow 

an interpretation that applies this 

criterion to specific standards that are 

the subject of an authorization request. 

EPA’s traditional interpretation is the 

most straightforward reading of the text 

and legislative history of section 209(b) 

and section 209(e). First, EPA disagrees 

with PLF’s assertions regarding the 

original language of the preemption 

provision promulgated in 1967. The 

critical language in section 208(b) of the 

1967 legislation required that EPA‘s 

predecessor department grant California 

a waiver of section 208(a) preemption 

unless it found that California ‘‘does not 

require standards more stringent than 

applicable Federal standards to meet 

compelling and extraordinary 

conditions . . ..’’ This language did not 

suggest a searching review of every 

California standard. Rather, it required a 

waiver of preemption unless the agency 

determined that California did not 

require more stringent ‘‘standards’’—a 

term that is both general and plural—to 

meet compelling and extraordinary 

conditions. This language is fully 

consistent with a review of California’s 

general need for more stringent 

standards and thus for its own program 

(i.e. its own set of standards). 

PLF’s emphasis on the word 

‘‘standards,’’ as opposed to ‘‘program’’ 

in this section is inapposite. EPA’s use 

of the word ‘‘program’’ in this context 

is simply meant to describe the group of 

standards applicable to the engines and 

vehicles in question under California’s 

regulatory program, compared to those 

under the federal program. The 

‘‘program’’ in this context is merely the 

standards being considered together. It 

is fully consistent with the language of 

the statute to review the need for the 

program (i.e. the set of relevant 

standards) as a whole, rather than the 

need for individual standards. PLF’s 

reference to legislative history is 

consistent with EPA’s view that the 

relevant issue in determining whether a 

waiver is justified is California’s 

‘‘circumstances’’ being ‘‘sufficiently 

different’’, rather than the specific need 

for any particular standard.74

Beginning prior to the 1977 

amendments, EPA has consistently 

interpreted the ‘‘compelling and 

extraordinary conditions’’ criterion to 

apply to the full California program (i.e. 

set of standards).75 When Congress reevaluated this provision in 1977, it 

could have revised the criterion to make 

clear that California must show each 

standard is necessary. Instead, as 

discussed below, Congress went out of 

its way to indicate that California is to 

be given even more flexibility in 

designing its own motor vehicle 

program.76

PLF, moreover, does not take proper 

account of the critical statutory change 

Congress made in 1977, which allowed 

California to promulgate individual 

standards that are not as stringent as 

comparable federal standards, as long as 

the standards are ‘‘in the aggregate, at 

least as protective of public health and 

welfare as applicable federal standards.’’ 

This decision by Congress requires EPA 

to waive preemption of individual 

California standards that, in and of 

themselves, might not be considered 

needed to meet compelling and 

extraordinary circumstances, but are 

part of California’s overall approach to 

reducing vehicle emissions to address 

air pollution problems. 

Although PLF is correct that the 1977 

amendments formally separated the 

‘‘protectiveness’’ criterion from the 

‘‘need’’ criterion, the latter continues to 

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77 Id. 

78To the extent the provision is ambiguous, 

EPA’s interpretation is, at minimum, one that is 

reasonable and entitled to deference under Chevron 

U.S.A. Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984). It certainly is not 

‘‘unambiguously precluded’’ by the language of the 

statute. See Entergy Corp. v. Riverkeeper, Inc., 129 

S.Ct. 1498 (2009) (‘‘That view governs if it is a 

reasonable interpretation of the statute—not 

necessarily the only possible interpretation, nor 

even the interpretation deemed most reasonable by 

the courts. Chevron U.S.A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 843–844 

(1984).’’) (‘‘It seems to us, therefore, that the phrase 

‘‘best available,’’ even with the added specification 

‘‘for minimizing adverse environmental impact,’’ 

does not unambiguously preclude cost-benefit 

analysis.’’). Carrow v. Merit Systems Protection 

Board, 564 F.3d 1359 (Fed. Cir. 2009) (‘‘[W]e are 

obligated to give controlling effect to [agency’s] 

interpretation if it is reasonable and is not contrary 

to the unambiguously expressed intent of 

Congress’’, citing Entergy Corp.). 

79 74 FR 32744, 32759 (July 8, 2009) (citations 

omitted). 

80 105 H.R. Rep. No. 294, 95th Cong., 1st Sess. 

301–302 (1977). See MEMA, 627 F.2d at 1110–11. 

refer back to the language regarding 

protectiveness, by using the term ‘‘such 

state standards.’’ In addition, contrary to 

PLF’s comments, the creation of the ‘‘in 

the aggregate’’ test for protectiveness is 

supportive of the argument that EPA is 

not to look at the need for each 

individual standard. If EPA were 

required to look independently at the 

need for each individual standard, any 

individual standard that was less 

stringent than a federal standard might 

be considered unnecessary. This would 

obviate the rationale for looking at the 

protectiveness of California’s standards 

‘‘in the aggregate’’ under the first 

criterion—effectively requiring EPA to 

give back in the second criterion what 

Congress explicitly gave California in its 

revision to the first criterion. Finally, it 

bears emphasis that the 1977 

amendments continued to require that 

EPA grant a waiver of preemption 

unless it makes one of the findings in 

section 209(b)(1), thus continuing to put 

the burden of proof on those opposing 

the waiver.77

Congress, in 1990, added language in 

section 209(e)(2)(A) creating criteria for 

EPA authorization of California nonroad 

engine standards that are essentially 

identical to the criteria for EPA waiver 

of preemption of California’s standards 

for new motor vehicles in section 

209(b). In particular, Congress provided 

California with the discretion to create 

a broad emissions program (i.e. 

‘‘California standards’’) that needs only 

to be as stringent as applicable EPA 

standards, in the aggregate. Further, 

section 209(e)(2)(A)(ii) refers to whether 

‘‘such California standards’’ are needed 

to meet compelling and extraordinary 

conditions, referring back to the general 

and plural term ‘‘California standards’’ 

in the protectiveness finding. 

The language of section 209(e)(2)(A) 

regarding the ‘‘protectiveness’’ 

determination by California refers only 

to ‘‘California standards,’’ not to each 

California standard individually. 

Moreover, the use of the term ‘‘in the 

aggregate’’ makes clear that the set of 

standards to be reviewed is the 

aggregate set of standards applicable to 

the engines and vehicles being 

regulated. EPA is to determine whether 

California’s determination is arbitrary 

and capricious under section 

209(e)(2)(A)(i), and is to determine 

whether California does not need ‘‘such 

California standards’’ to meet 

compelling and extraordinary 

conditions. The natural reading of these 

provisions leads EPA, in addressing the 

‘‘needs’’ criterion, to consider the same 

group of standards that California 

considered in making its protectiveness 

determination. While the words ‘‘in the 

aggregate’’ are not specifically 

applicable to section 209(e)(2)(A)(ii), 

this criterion does refer to the need for 

‘‘such California standards,’’ rather than 

‘‘each California standard’’ or otherwise 

indicate a standard-by-standard 

analysis. The text thus indicates that the 

proper analysis is to review the 

aggregate set of standards (i.e. the 

program) applicable to the regulated 

vehicles and engines.78

PLF’s discussion of case law 

interpreting the term ‘‘standard’’ is 

inapposite. For example, although PLF 

points to both MEMA I and EMA, those 

decisions address an entirely different 

issue relevant to section 209—i.e., 

whether the regulation set by California 

is, in fact, a ‘‘standard,’’ as opposed to 

another type of provision, like an 

enforcement provision. These cases do 

not illuminate the issue of whether EPA 

reviews each standard individually 

under sections 209(b)(1)(B) and 

209(e)(2)(A)(ii), or whether it reviews 

California’s standards as a group (i.e. 

California’s program for such engines) 

under those provisions. 

EPA’s 2009 decision waiving 

preemption of California’s GHG 

standards for light duty vehicles 

considered the plain language and 

legislative history of section 209(b)(1)(B) 

and determined that for all pollutants, it 

was appropriate to review section 

209(b)(1)(B) by reviewing the need for 

California’s motor vehicle program, 

rather than individual standards. We 

incorporate that discussion into this 

decision by reference because, as 

explained above, the language of section 

209(e)(2)(A)(ii) is substantively the same 

as that in section 209(b)(1)(B) on this 

issue. 

The 2009 GHG waiver decision 

included the following discussion, 

which in particular addressed a 1984 

decision waiving preemption for earlier 

California PM standards: 

[I]n the legislative history of section 209, 

the phrase ‘‘compelling and extraordinary 

circumstances’’ refers to ‘‘certain general 

circumstances, unique to California, 

primarily responsible for causing its air 

pollution problem,’’ like the numerous 

thermal inversions caused by its local 

geography and wind patterns. The 

Administrator also noted that Congress 

recognized ‘‘the presence and growth of 

California’s vehicle population, whose 

emissions were thought to be responsible for 

ninety percent of the air pollution in certain 

parts of California.’’ EPA reasoned that the 

term compelling and extraordinary 

conditions ‘‘do not refer to the levels of 

pollution directly.’’ Instead, the term refers 

primarily to the factors that tend to produce 

higher levels of pollution—‘‘geographical and 

climatic conditions (like thermal inversions) 

that, when combined with large numbers and 

high concentrations of automobiles, create 

serious air pollution problems.’’ 

The Administrator summarized that under 

this interpretation the question to be 

addressed in the second criterion is whether 

these ‘‘fundamental conditions’’ (i.e. the 

geographical and climate conditions and 

large motor vehicle population) that cause air 

pollution continued to exist, not whether the 

air pollution levels for PM were compelling 

and extraordinary, or the extent to which 

these specific PM standards will address the 

PM air pollution problem.79

The structure of section 209, as 

adopted in 1967 and as amended in 

1977 and 1990, is notable in its focus on 

limiting the ability of EPA to deny a 

waiver or authorization. This limitation 

preserves discretion for California to 

construct its motor vehicle and nonroad 

programs as it deems appropriate to 

protect the health and welfare of its 

citizens. The legislative history 

indicates Congress quite intentionally 

restricted and limited EPA’s review of 

California’s standards, and that its 

express legislative intent was to 

‘‘provide the broadest possible 

discretion [to California] in selecting the 

best means to protect the health of its 

citizens and the public welfare.’’ 80 The 

D.C. Circuit recognized that ‘‘[t]he 

history of the congressional 

consideration of the California waiver 

provision, from its original enactment 

up through 1977, indicates that 

Congress intended the State to continue 

and expand its pioneering efforts at 

adopting and enforcing motor vehicle 

emission standards different from and 

in large measure more advanced than 

the corresponding federal program. In 

short to act as a kind of laboratory for 

innovation. * * * For a court [to limit 

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81 MEMA, 627 F. 2d at 1111. 

82ARTBA at 2. 

83 Id. 

California’s authority] despite the 

absence of such an indication would 

only frustrate the congressional 

intent.’’ 81

In this context, it is fully consistent 

with the expressed intention of 

Congress to interpret section 

209(e)(2)(A)(ii) in a manner that allows 

California the policy discretion to set its 

emission program as it sees fit, subject 

to the limitation that its standards 

remain, in the aggregate, as protective of 

public health and welfare as applicable 

federal standards and that California 

continue to experience compelling and 

extraordinary conditions. Congress 

intended to provide California the 

broadest possible discretion to develop 

its nonroad emissions program. Neither 

the text nor the legislative history of 

section 209(b) or 209(e) indicates that 

Congress intended to limit this broad 

discretion by requiring EPA to 

determine, on a case-by-case basis, 

whether each specific standard is 

necessary or appropriate for California. 

EPA’s longstanding interpretation, 

accordingly, is directly in line with the 

purpose of Congress. 

This approach does not make section 

209(b)(1)(B) or section 209(e)(2)(A)(ii) a 

nullity. EPA must still determine 

whether opponents of authorization 

have met their burden to establish that 

California does not need its nonroad 

program to meet the compelling and 

extraordinary conditions. As discussed 

below, EPA does not believe that burden 

has been met in this instance. We 

acknowledge, however, that conditions 

in California may one day improve such 

that it no longer has the need for a 

separate nonroad program to address 

certain air quality problems. The statute 

contemplates that such improvement is 

possible. PLF is incorrect in concluding 

that EPA’s approach would lead to an 

absurd outcome. EPA would not deny 

an authorization request under section 

209(e)(2)(A)(ii) unless it determined that 

the regulatory program was not needed 

because compelling and extraordinary 

conditions no longer exist in California. 

Furthermore, the basis for previously 

waived or authorized standards would 

remain valid unless EPA determined 

that the compelling and extraordinary 

conditions would not exist even without 

those standards in place. This is 

consistent with the intent of Congress to 

permit California to maintain separate 

emission standards when compelling 

and extraordinary conditions exist. 

Thus, there would be no absurd results 

regarding such standards. 

Congress has directed EPA to exercise 

its technical judgment with regard to all 

three authorization criteria, but has not 

authorized EPA to substitute its policy 

judgment for California’s judgment with 

regard to which of its specific standards 

are or are not needed to meet its 

compelling and extraordinary 

conditions. Those who oppose 

California regulations for reasons other 

than the three criteria that Congress 

specified in the statute have the ability 

to raise their legal, policy, and other 

concerns in the state administrative 

process, or through judicial review of 

the regulations themselves. 

For these reasons, EPA believes that 

the better approach for analyzing the 

need for ‘‘such State standards’’ to meet 

‘‘compelling and extraordinary 

conditions’’ is to review California’s 

need for its program, as a whole, for the 

class or category of vehicles being 

regulated, as opposed to its need for the 

individual standards that are the subject 

of an authorization request. 

2. Does California Need its Nonroad 

Program to Meet Compelling and 

Extraordinary Conditions? 

Applying the traditional approach to 

application of the compelling and 

extraordinary circumstances criterion 

under section 209(e)(2)(A)(ii), EPA 

cannot deny the authorization of the 

Fleet Requirements on this basis. 

CARB has repeatedly demonstrated 

the need for its nonroad program to 

address compelling and extraordinary 

conditions in California. As noted 

above, in its Authorization Request, 

CARB stated that the unique 

geographical and climatic conditions 

and the tremendous growth in 

California’s onroad and nonroad vehicle 

population, giving rise to serious air 

quality problems and NAAQS 

nonattainment in California, still exist 

today and that nothing in these 

conditions has changed to warrant a 

change in this determination. As such 

CARB notes that there can be no doubt 

of the continuing existence of 

compelling and extraordinary 

conditions justifying California’s need 

for its own mobile source emissions 

control program. 

EPA received some comment from 

those that otherwise oppose the 

authorization but implicitly recognize 

the underlying compelling and 

extraordinary conditions in California. 

For example, the American Road and 

Transportation Builders Association 

(ARTBA) notes that it is ‘‘very 

supportive of both EPA and ARB’s goal 

of reducing PM and NOX emissions,’’ 

but ‘‘does not believe ARB has 

considered fully some of the air quality 

improvements already occurring in 

California and the nation. These 

improvements in air quality undercut 

the need for a measure as severe as the 

ARB proposal.’’ 82 ARTBA notes that the 

air quality is significantly improving 

without the Fleet Requirements.83

However, EPA received no evidence to 

suggest that California’s air quality is 

improving to the point that it will attain 

the NAAQS for PM and ozone without 

the Fleet Requirements or that 

California continues to experience 

serious air quality concerns based on 

continuing compelling and 

extraordinary conditions, as EPA and 

CARB have outlined in this and 

previous actions. Based on the record, 

EPA is unable to identify any change in 

circumstances or any evidence to 

suggest that the conditions that 

Congress identified as giving rise to 

serious air quality problems in 

California no longer exist. As noted by 

CARB, there continue to be underlying 

compelling conditions in California 

giving rise to a significant number of 

California air basins that continue to be 

in nonattainment with NAAQS for PM2.5

and ozone. 

To the degree that commenters 

question the stringency of the Fleet 

Requirements or whether the emission 

reductions projected from this rule are 

needed, EPA received no comment that 

addressed the fundamental question of 

whether California continues to 

experience compelling and 

extraordinary conditions giving rise to 

the need of a nonroad emissions 

program. The design, or stringency of 

such an emission program, is irrelevant 

to EPA’s review of section 

209(e)(2)(A)(ii). Such review would be 

inconsistent with the express indication 

from Congress to provide California 

with the ‘‘broadest possible discretion’’ 

in selecting the best means to protect 

the health of its citizens and the public 

welfare. Accordingly, applying the 

traditional approach of reviewing the 

need for a separate California nonroad 

program to meet compelling and 

extraordinary conditions, EPA cannot 

deny the authorization based on this 

criterion. 

3. In the alternative, does California 

need its nonroad Fleet Requirements to 

meet compelling and extraordinary 

conditions? 

As discussed above, EPA is 

maintaining its interpretation of section 

209(e)(2)(A)(ii) as requiring a review of 

whether compelling and extraordinary 

conditions give rise to a need for a 

California nonroad emission program. 

Nevertheless, because EPA received 

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84These comments are addressed in the 

‘‘protectiveness’’ or section 209(e)(2)(i) discussion 

above. As discussed in that section, the Agency 

believes it appropriate to limit our examination to 

the specific effects the California and EPA emission 

standards have on emissions rather than performing 

an analysis of social impacts or other secondary 

implications. The determination of how numerous 

possible impacts of emission regulation can or 

should be weighed in determining public policy is 

one inherently directed to the regulatory authority 

promulgating the regulation, not to an authority 

whose limited role is to review the regulations 

based on three narrow criteria and who has been 

directed by Congress to provide broad discretion in 

its review. 

85CARB notes in its Authorization Request that 

two air basins in California—South Coast Air Basin 

and San Joaquin Valley Air Basin—are in 

nonattainment for both PM2.5 and the 8-hour ozone 

standard. This nonattainment is based on the 2006 

NAAQS for PM (71 FR 61144, October 17, 2006) 

and which EPA has subsequently made more 

stringent in 2012 (78 FR 3086, January 15, 2013). 

The nonattainment for ozone is based on EPA’s 

2008 NAAQS 8-hour ozone standard (73 FR 16436, 

March 27, 2008). CARB notes that significant 

emission reductions of NOX are needed because it 

leads to formation in the atmosphere of ozone and 

PM2.5, and that diesel PM emission reductions are 

also needed because diesel PM contributes to 

ambient concentrations of PM2.5. 

California submitted a revision to its SIP (State 

Strategy) in 2007 for the South Coast and San 

Joaquin Valley Air Basins that demonstrates 

attainment of the PM2.5 standard by 2014 (needed 

by 2015), but only after achieving significant 

reductions of PM2.5 (and NOX). In addition, 

additional reductions of NOX emissions are needed 

to achieve the 8-hour ozone standard by 2023. EPA 

approved the Stated Strategy for both PM2.5 and 

NOX for the South Coast and San Joaquin Air Basins 

on November 9, 2011 and March 1, 2012, 

respectively. CARB projects that the Fleet 

Regulations will achieve a 17 percent reduction in 

NOX emissions and a 21 percent reduction in PM2.5

emissions in 2023 that would not occur without the 

regulation and that Fleet Requirements are an 

integral part of the SIP and are laid out in EPA’s 

proposed rulemaking to approve the State Strategy 

and that no ‘‘margin of safety’’ otherwise exists. 

86CARB notes in its Written Comments at 10–11 

that the Fleet Requirements are part of the approved 

SIP for the South Coast and San Joaquin valley, 

both extreme nonattainment areas for ozone and 

nonattainment for PM2.5 and that specific emission 

benefits from the Fleet Requirements are laid out in 

EPA’s proposed rulemaking to approve the State 

Strategy. 

87CARB Written Comments at 12–13. 

comment urging an alternative 

interpretation (based on a review of 

whether the Fleet Requirements are per 

se needed to meet compelling and 

extraordinary conditions) and because 

we received other comments concerning 

the specific need for or benefits of the 

Fleet Requirements, EPA has also 

evaluated this criterion in the 

alternative by reviewing the Fleet 

Requirements separately. 

Although EPA received a wide variety 

of comments questioning the ‘‘need’’ for 

CARB’s Fleet Requirements, we did not 

receive any comments or explanation as 

to how an evaluation of ‘‘need’’ should 

be performed by EPA. As discussed 

below, in light of the lack of criteria by 

which to judge such need (including 

how to weigh or balance evidence and 

provide CARB with the requisite policy 

deference described above), the lack of 

any explanation of the relevant facts 

that EPA must or could consider, and 

the failure of commenters to satisfy their 

burden of proof to overcome CARB’s 

stated need for its Fleet Requirements, 

even if EPA were to apply the 

alternative interpretation proposed by 

commenters, the agency would be 

unable to make an affirmative finding 

under section 209(e)(2)(A)(ii). Therefore, 

EPA is unable to deny CARB’s request 

on this basis. 

a. California’s Air Quality Today and 

Moving Forward 

The Agency received a number of 

comments suggesting that California’s 

air quality is improving on its own. 

ARTBA notes that levels of PM2.5 and 

NOX have declined significantly since 

1980 and since 2001, while numerous 

economic indicators have increased. 

The Associated General Contractors of 

America (AGC) note the significant 

decline in emissions from off-road 

diesel equipment due to a decline in 

activity and other factors. The 

Construction Industry Air Quality 

Coalition (CIAQC) claims that emissions 

from the existing fleet are naturally 

declining and that additional regulation 

is not needed to reach the emission 

levels CARB attributes to 

implementation of the Fleet 

Requirements. The California 

Construction Trucking Association 

(CCTA) and CIAQC state that CARB’s 

emission modeling was overstated and 

continues to be inaccurate because it 

presumes too optimistic a scenario of 

economic recovery and therefore more 

activity and emissions from nonroad 

fleets than there actually has been. We 

also received comments that the cost of 

CARB’s regulation compared to the 

benefits supports a finding that such 

standards are not needed, and that the 

health benefits are either overstated or 

non-existent. In related comments, 

commenters stated that the Fleet 

Requirements are likely to do harm to 

the public health of Californians and 

that the economic impacts of the 

regulation are likely to lead to 

significant adverse health effects.84 We 

also received comment from Altfillisch 

Contractors (ACI) suggesting that the 

California Environmental Quality Act 

(CEQA) renders the Fleet Requirements 

unnecessary. 

CARB explains in its comments that 

for areas that exceed the NAAQS, 

California is responsible under the CAA 

section 110 for developing a state 

implementation plan (SIP) that 

describes how the state will attain the 

standards by certain deadlines. 

CARB notes that its Fleet 

Requirements are part of an integral 

strategy to attain the NAAQS in both the 

San Joaquin Valley Air Basin and South 

Coast Air Basin. CARB notes there is no 

question that areas of California 

continue to be in nonattainment for 

PM2.5, as well as for ozone, and that the 

Fleet Requirements and other 

regulations and incentives are needed to 

achieve attainment.85 Additionally, 

CARB states that despite the economic 

recession and downward revisions to 

the in-use off-road emissions inventory, 

off-road diesel vehicles remain a 

significant source of emissions.86 Thus, 

CARB states, there continues to be a 

strong need for further regulation of all 

emission source categories, including 

off-road vehicles. ‘‘As EPA has longconfirmed, questions of what sources to 

regulate and how to regulate them are 

policy questions that Congress has 

determined is best left to the State.’’ 87

CARB also notes, and the EPA agrees, 

that the CEQA does not render the Fleet 

Requirements unnecessary. The 

purposes of the CEQA and the Fleet 

Requirements are different. The CEQA, 

which is applied in only a few air 

districts, is essentially designed to 

identify when projects will result in 

significant harm and to mitigate that 

harm (to make sure air quality does not 

worsen), whereas the Fleet 

Requirements are proactive measures 

applicable statewide as part of 

coordinated strategy designed to 

improve air quality throughout the state. 

EPA believes that CARB’s initial 

filings and additional submissions to 

the record, responding to arguments that 

the Fleet Requirements are not needed 

because of the economic downturn and 

because of CARB’s overestimation of 

inventory and emissions, are reasonable. 

Mere assertions by commenters that 

CARB’s most recent emission modeling 

is inaccurate do not meet the burden of 

proof to demonstrate otherwise. As 

noted above, CARB has submitted 

updated estimates of projected emission 

reductions expected from the Fleet 

Requirements, and there is no evidence 

in the record to demonstrate that 

CARB’s projections are unreasonable. 

EPA further finds that the opponents 

have not met their burden of 

demonstrating that such considerations 

would render the Fleet Requirements 

unnecessary. In adopting the 2010 

amendments, CARB acknowledged that 

past and future emissions from in-use 

nonroad CI vehicles were significantly 

lower than originally projected, and 

CARB states that the amendments for 

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88Consistent with MEMA I, the Agency has 

evaluated costs in this authorization in the 

evaluation of the technological feasibility below. 

The Agency looks at the actual cost of compliance 

in the time provided by the regulation, not the 

regulation’s cost-effectiveness. The appropriate 

cost-effectiveness for a regulation is a policy 

decision of California that is considered and made 

when California adopts the regulations, and EPA, 

historically, has deferred to these policy decisions. 

EPA has stated in this regard, ‘‘the law makes it 

clear that the waiver request cannot be denied 

unless the specific findings designated in the 

statute can 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. 

Therefore, EPA declines to review CARB’s Fleet 

Requirements for their cost-effectiveness or the 

cost-benefits of the regulation in the context of any 

of the authorization criteria set forth in section 

209(e)(2). 

89 Id. 

90 78 FR 3086 (January 15, 2013). 

91EPA received only one comment suggesting 

that NOX and ozone do not pose a public health 

issue. This comment did not include any data or 

other evidence to support this assertion. See Milloy 

written testimony. 

92See Milloy. EPA notes that Mr. Milloy, who 

submitted comment on behalf of the California 

Construction Trucking Association, separately 

brought litigation against EPA in which he signed 

a sworn declaration comparing exposure of human 

test subjects being voluntarily exposed to forms of 

particulate matter to Nazi death camp 

experimentation. Declaration of Steven J Milloy in 

Case 1:12–cv–01066–AJT–TCB pp. 2–3; see also the 

complaint in the same matter which states that such 

studies ‘‘ris[k] the lives and health of human study 

subjects’’ and that ‘‘Mr. Milloy is appalled by this 

inhumanity’’(complaint para. 15). These sworn 

statements are diametrically at odds with Mr. 

Milloy’s presentation and testimony here that 

exposure to particulate matter does not pose a 

public health concern. Needless to say, when a 

commenter publically espouses positions that are at 

a 180 degree remove from each other, the credibility 

of the assertions is greatly diminished. This lawsuit 

was dismissed as lacking any legal basis. Dr. 

Enstrom states in his comment ‘‘There is now 

overwhelming epidemiologic evidence that PM2.5

and diesel PM are not related to total mortality in 

California. This evidence has most recently been 

summarized in my thirteen-page September 28, 

2012 paper, ‘‘Particulate Matter is Not Killing 

Californians. This paper was presented on August 

1, 2012 at the American Statistical Association Joint 

Statistical Meeting in San Diego. It is currently 

posted online and will be published later this year 

in the 2012 JMS Proceedings (http://

www.scientificintegrityinstitute.org/

ASAS092812.pdf).’’ 

93See Dr. Malken. 

which authorization is requested 

provide economic relief to fleets while 

still achieving the emission reductions 

necessary to attain federal ambient air 

quality standards (NAAQS). CARB 

indicates that despite the smaller 

inventory contribution from in-use 

nonroad CI engines than CARB 

projected in the initial rulemaking, 

emissions from these engines still 

represent a significant portion of the 

overall emissions inventory. The 

opponents provide no evidence to refute 

CARB’s assertion that despite the 

economic recession and revised 

inventory, the in-use nonroad CI fleet 

remains a significant source of 

emissions. 

Moreover, as CARB notes, there 

continues to be a strong need for 

emission reductions from all emission 

categories, including the in-use nonroad 

CI fleet, to meet the PM2.5 and ozone 

NAAQS. As CARB notes, it is not for 

EPA to decide which types of sources to 

regulate and in what manner to do so.88

Congress intended to leave such policy 

questions in the hands of the state. As 

discussed below, EPA finds that CARB 

has promulgated the Fleet 

Requirements, in part, to satisfy its 

PM2.5 and 8-hour ozone NAAQS 

requirements and no evidence exists in 

the record to explicitly demonstrate 

why the emission reductions projected 

by CARB are not needed in order to 

meet California’s NAAQS obligations. 

Lastly, CARB restates its legal 

obligation to achieve PM emission 

reductions and the expected benefits 

associated with the Fleet Requirements: 

ARB adopted the Off-Road regulation, in 

part, to meet California’s legal obligations 

under federal law to achieve attainment with 

the NAAQS for PM2.5 by 2014. The emission 

reductions in the regulation are critical to 

attaining federally mandated air quality 

standards. Primary diesel PM emissions are 

a significant contributor to overall PM2.5. In 

2008, 20,600 tons of diesel PM were emitted 

in California. The present amendments to the 

Off-Road regulation have been adopted to 

accommodate the economic hardship of 

affected businesses while still meeting the 

legal requirements and protecting the public 

health of all Californians.89

In order to properly evaluate whether 

California has a need for its Fleet 

Requirements under the alternative 

approach to section 209(e)(2)(A)(ii) 

described above, EPA believes it would 

be necessary only to examine whether 

the identified ‘‘compelling and 

extraordinary conditions’’ in California 

are giving rise to an air quality problem 

that CARB seeks to address with the 

Fleet Requirements. EPA has received 

no comment suggesting that EPA’s 

historically recognized ‘‘conditions’’ in 

California (e.g. geographic and climatic 

conditions, number of vehicles 

operating in California, etc.) do not 

continue to give rise to elevated 

concentrations of particulate matter and 

NOX. In addition, EPA has received no 

comment rebutting CARB’s statement 

that it is legally required to demonstrate 

compliance with the CAA’s NAAQS 

requirements (for PM2.5 and 8-hour 

ozone) and that CARB is currently 

committed to achieve such compliance 

in part through the promulgation of 

emission standards such as its Fleet 

Requirements. As noted by CARB, the 

Fleet Requirements were initially set in 

response to the NAAQS requirements 

for PM2.5 and the 8-hour ozone set in 

2006 and 2008, respectively. The state 

of California has a greater level of 

nonattainment under those NAAQS 

than other states. Since that time, EPA 

in 2012 has completed review of the PM 

NAAQS and has strengthened the 

primary annual standard for PM2.5, and 

California continues to set regulations in 

response to such requirements.90 EPA 

believes that to the extent that a review 

of the need for the Fleet Requirements 

(as opposed to CARB’s nonroad 

program) is required, that CARB has 

reasonably demonstrated such need due 

to its obligation to comply with federal 

law (including section 110 of the CAA); 

CARB needs its Fleet Requirements and 

a host of other regulatory measures in 

order to adequately meet its SIP 

obligations. Because EPA has received 

additional comment suggesting that the 

PM conditions in California are not a 

serious air quality issue the Agency 

addresses those comments below. 

b. PM Health Effects 

EPA received several comments that 

question the public health benefits 

associated with the Fleet Requirements. 

EPA received comment stating that 

PM2.5, and specifically PM2.5 from diesel 

combustion, does not present a public 

health risk in general,91 and that there 

is no measurable or detectable 

relationship between PM2.5 and 

mortality.92 Separately EPA also 

received comment that PM2.5 from 

diesel combustion located in California 

does not present a public health risk. 

With regard to the suggestion that 

PM2.5 from diesel combustion does not 

present a public health risk, EPA 

received comment stating that ‘‘the 

claimed toxic effects of diesel 

particulate matter are hundreds of times 

smaller than, for example, the increased 

risk of lung cancer caused by cigarette 

smoking. This commenter asserts that 

these possible effects are smaller than 

any previously discovered in medical 

history, the actual exposure levels are so 

difficult to estimate, and there are so 

many confounding health factors 

(smoking and lifestyle) that are 

impossible to control, that the entire 

scientific basis of the regulatory policy 

needs to be broadly re-assessed before 

allowing CARB any kind of waiver in 

PM2.5 enforcement.’’ 93

EPA also received comment 

questioning whether PM2.5 from diesel 

exhaust is causing cancer, premature 

death, or other health effects in 

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94See Dr. Malken. This commenter also suggests 

that the PM2.5 from diesel exhaust in California 

might be inherently different than the PM studied 

in the eastern half of the United States. 

95 Id. at 2. 

96See Dr. Phalen. 

97See Delta and Dr. Enstrom. Delta also 

comments that the least healthy county in 

California has low diesel PM air concentrations, but 

high poverty and unemployment levels. Delta states 

that California is the fourth healthiest state as 

measured by premature death rates. EPA notes that 

Delta makes no attempt to connect these general 

views on health with the specific issue of whether 

emissions of PM2.5 have any effect on health. 

98See Dr. Enstrom and Dr. Malken. Dr. Malken 

claims that the CARB-funded Jerrett et al. (2011) 

study of the LA subset of ACS data was the only 

one which utilized data from particle monitors and 

‘‘they found no significant correlation between 

PM2.5 and ‘premature deaths.’ ’’ This commenter 

also states that weighing all of the studies that 

CARB has considered is more a matter of subjective 

taste than a scientific process and that CARB has 

‘‘cherry-picked’’ the few results that have supported 

their position. 

99 Dr. Enstrom. This commenter maintains that 

EPA’s June 2012 ‘‘Regulatory Impact Analysis 

related to the Proposed Revisions to the National 

Ambient Air Quality Standards for Particulate 

Matter’’ erroneously concluded that ‘‘most of the 

cohort studies conducted in California report 

central effect estimates similar to the (nation-wide) 

all-cause mortality risk estimate’’ but EPA’s Table 

5 B–10 was inaccurate or misleading, including the 

hazard ratio used from his 2005 paper. EPA notes 

that the proper place to contest the methodology 

and findings of the Agency in its NAAQS review 

process is in that federal context. This commenter 

also claims that ‘‘[a] glaring omission was the 

detailed evidence from the October 28, 2011 CARBfunded Report, ‘‘Spatiotemporal Analysis of Air 

Pollution and Mortality in California Based on the 

American Cancer Society Cohort: Final Report,’’ by 

Drs. Michael Jerrett, Richard T. Burnett, C. Arden 

Pope III, Daniel Krewski, Michael Thun, and nine 

others http://www.scientificintegrityinstitute.org/

JerrettCriticism102811.pdf).’’ This commenter also 

claims that his September 28, 2012 paper 

summarizes the epidemiologic evidence that PM2.5

and diesel PM are not related to total mortality in 

California. 100 Id. 

101See CARB Written Comments. 

102 Id. 

103 Id. at 12, citing attachments 1–3. 

104 Id. 

105CARB Written Comments at 12, citing 

attachments 1 and 2 of its October 19, 2012 

submissions to EPA, including the ‘‘Estimate of 

Premature Deaths Associated with Fine Particle 

Pollution (PM2.5) in California Using a U.S. 

Environmental Protection Agency Methodology,’’ 

August 31, 2010. 

106CARB Supplemental Comments. 

107The Jerrett et al., 2011 report was not included 

in EPA’s PM ISA because it was completed after the 

ISA was published. It was also not included in the 

Provisional Science Assessment because it was not 

a peer-reviewed publication at the time. However, 

the work conducted by Jerrett et al. was recently 

published and can now be found in the peerreviewed literature [http://www.atsjournals.org/doi/ 

pdf/10.1164/rccm.201303-0609OC]. EPA will 

Continued 

California. For example, one commenter 

stated that ‘‘we don’t know yet’’ and we 

‘‘can’t rule out’’ that exposure to diesel 

PM might statistically be related to zero 

premature deaths.94 This commenter 

suggests that the toxic effects of diesel 

particulate matter are so small that the 

scientific basis for concerns about PM2.5

impacts on health needs to be reassessed before EPA authorizes 

California’s regulation. This commenter 

maintains that science does not know 

yet if fine particulate matter is causing 

cancer and the premature death of a 

measurable number of Californians, and 

that other factors like smoking and 

lifestyle may confound any effects.95

EPA also received comment suggesting 

that the scientific evidence on the 

health effects of particulate air pollution 

(specifically PM2.5) in California does 

not support its further control or 

regulation at this time. This commenter 

maintains that ‘‘[o]ur PM2.5 is different 

in composition and is less toxic than 

that in many Eastern regions of the 

U.S.’’ 96 In addition, two commenters 

stated that strong epidemiologic 

evidence shows ambient PM2.5 and 

diesel PM is not related to total 

mortality in California.97 The 

commenters also note studies published 

in 2005 and 2011 for support.98 One 

commenter notes the 2011 study for 

California-specific evidence regarding 

PM2.5 and diesel PM and mortality and 

claims it demonstrates no current 

relationship between PM2.5 and 

mortality in California and may show no 

scientific or public health justification 

for this regulation.99

Separately, the commenter also takes 

issue with EPA’s Regulatory Impact 

Analysis for its proposed PM NAAQS 

rule (which has since been finalized), 

claiming the Regulatory Impact Analysis 

is misleading and contains 

omissions.100

Lastly, we received comment from 

CCTA that references a paper titled 

‘‘Mortality Among Members of a Truck 

Driver Trade Association’’ (Truck Driver 

study) suggesting that any research on 

exposure to diesel exhaust should 

necessarily include truck drivers. CCTA 

maintains that the study results indicate 

that those in closest proximity and 

duration of high levels of exposure to 

diesel exhaust don’t seem to share the 

same deleterious effects to exposure 

claimed in other studies. 

In response to claims that the Fleet 

Requirements are not needed because 

there is no causal connection existing 

between PM2.5 exposure and premature 

mortality and other health effects, CARB 

states: 

Staff carefully reviewed all peer-reviewed 

studies that have been performed in the 

United States on the relationship between 

long-term PM2.5 exposure and mortality, as 

has the U.S. EPA in its recent review of the 

National Ambient Air Quality Standard for 

particulate matter. U.S. EPA’s 2009 science 

assessment states ‘‘Collectively, the evidence 

is sufficient to conclude that the relationship 

between long-term PM2.5 exposures and 

mortality is causal.’’ U.S. EPA and ARB have 

critically evaluated the methods used in each 

study so that we can place the most weight 

on the studies that have used the strongest 

methodologies . . .. ARB’s conclusions about 

the relationship between long-term exposure 

to PM2.5 and mortality are aligned with the 

findings of the U.S. EPA, the World Health 

Organization, Health Canada, and the British 

government. Those findings have been 

publicly peer reviewed by multiple 

independent bodies worldwide.101

With respect to the questions about 

the health effects associated with 

exposure to diesel exhaust PM, CARB 

notes: 

Staff agrees that ambient PM2.5 arises from 

many different sources, including diesel 

exhaust, and there are no established 

methods for routinely measuring the 

concentration of PM2.5 in ambient air from 

any specific source. Diesel PM is primarily 

less than 2.5 microns in diameter, and 

consequently falls into the PM2.5 size 

category. As discussed above, exposure to 

PM in this size fraction is strongly associated 

with premature death. Also, the results of 

animal exposure studies suggest that diesel 

PM is at least as toxic as other species within 

this size range.102

Further, with respect to questions 

about the specific health effects of diesel 

exhaust PM in California, CARB cites, in 

its responsive comments during the 

waiver proceeding, the large body of 

peer-reviewed scientific studies 

evaluated by CARB and EPA that have 

identified a broad range of health effects 

associated with PM2.5 exposures.103

CARB states that ‘‘[t]he national studies 

reviewed by the U.S. EPA for the 

NAAQS assessment apply to California. 

In fact, as part of the federal standards 

review process, U.S. EPA estimated the 

premature deaths associated with PM2.5

in two California cities—Los Angeles 

and Fresno.’’104 CARB also cites EPA’s 

Quantitative Health Risk Assessment, 

which estimates that, based on 2005 

ambient mean levels of PM2.5, 

approximately 63,000 to 80,000 

premature deaths each year are related 

to PM2.5 exposures in the United States. 

CARB also conducted its own 

California-focused study, which 

estimated that in California, exposure to 

PM2.5 results in approximately 9,200 

deaths each year.105 In further 

comments, CARB states that the pre2010 studies cited by Drs. Enstrom and 

Malkan in their comments were 

reviewed by CARB, as well as by the 

EPA in the development of the PM 

Integrated Science Assessment (ISA). 

Separately, CARB also reviewed the 

2011 Jerrett et al. study, referenced by 

commenters.106 107 CARB notes that the 

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consider this study in the next round of NAAQS 

reviews that include PM. We note, however, that 

the inclusion or exclusion of one report such as 

Jerrett would not materially change the large body 

of scientific evidence indicating an effect of PM2.5

exposure on human health. 

108CARB Supplemental Comments at 13, citing 

‘‘Spatiotemporal Analysis of Air Pollution and 

Mortality in California Based on the American 

Cancer Society Cohort: Final Report,’’ Michael 

Jerrett, Ph.D., 2011, at 6–7. 

109 Id. 

110U.S. EPA. (2009). Integrated Science 

Assessment for Particulate Matter (Final Report). 

U.S. Environmental Protection Agency, 

Washington, DC, EPA/600/R–08/139F. Docket entry 

EPA–HQ–OAR–2008–0691–0318–attachments 2.1 

through 2.5 

111 Id. at 1–22. See http://www.epa.gov/ttn/naaqs/ 

standards/pm/data/20121214rtc.pdf at II–9 to II–12 

for discussion of EPA’s application of its framework 

for causal determinations and recognition of the 

distinction between evaluating the relative 

scientific quality of individual study results and the 

evaluation of the pattern of results within the 

broader body of scientific evidence. This discussion 

also addresses allegations of cherry-picking studies 

and ignoring studies that reported no association 

with PM2.5. 

112See EPA–HQ–OAR–2008–0691–0318– 

attachment 3 and http://yosemite.epa.gov/sab/

sabproduct.nsf/368203f97a15308a852574

ba005bbd01/8bee96ad3228eabe8525760400702786!

OpenDocument. 

113EPA incorporates by reference our 2012 PM 

NAAQS review and associated rulemaking 

documents. EPA also notes that the reasoning and 

conclusions reached in the PM NAAQS review are 

not being revisited in the context of this 

authorization decision but are cited for the 

purposes of demonstrating the vast body of peer 

reviewed evidence and findings that is not 

contravened by the few studies submitted by 

commenters to the authorization docket. EPA also 

states that to the extent the comments take issue 

with the determinations made in the context of the 

PM NAAQS rulemaking, the proper place to bring 

challenges to those decisions would be in the 

context of that rule. 

114 Id. EPA also noted in this Response to 

Significant Comments document that ‘‘The EPA’s 

evaluation of the scientific evidence and its 

application of the causal framework used in the 

current PM NAAQS review was the subject of 

exhaustive and detailed review by CASAC and the 

public. Prior to finalizing the ISA, two drafts were 

released for CASAC and public review to evaluate 

the scientific integrity of the documents. Evidence 

related to the substantive issues raised by CASAC 

and public commenters with regard to the content 

of the first and second draft ISAs were discussed 

at length during these public CASAC meetings and 

considered in developing the final ISA. CASAC 

supported the development of the EPA’s causality 

framework and its use in the current PM NAAQS 

review and concluded: The five-level classification 

of strength of evidence for causal inference has been 

systematically applied; this approach has provided 

transparency and a clear statement of the level of 

confidence with regard to causation, and we 

recommend its continued use in future Integrated 

Science Assessments (Samet 2009f, p. 1).’’ (At II– 

9). 

115U.S. EPA. (2009). Integrated Science 

Assessment for Particulate Matter (Final Report) 

(ISA). U.S. Environmental Protection Agency, 

Washington, DC, EPA/600/R–08/139F. Section 2.3.5 

and Table 2–6. EPA also notes that the ISA assessed 

study found that ‘‘[c]ardiovascular 

disease (CVD) deaths, particularly those 

from ischemic heart disease (IHD), are 

consistently and robustly associated 

with fine particulate and traffic-related 

air pollution. The effects on CVD and 

IHD in California are virtually identical 

to those of the national . . . study.’’ The 

study also found that ‘‘[a]ll-cause 

mortality is significantly associated with 

PM2.5 exposure, but the results are 

sensitive to statistical model 

specification and to the exposure model 

used to generate the estimates.’’ 108

CARB also included a copy of the 

2011 Jerrett et al. study in its comments 

and indicated the study reached the 

following conclusion: 

Taken together, the results from this 

investigation indicate consistent and robust 

effects of PM2.5—and other pollutants 

commonly found in the combustion-source 

mixture with PM2.5—on deaths from CVD 

and IHD. We also found significant 

associations between PM2.5 and all causes of 

death, although these findings were sensitive 

to model specification. In Los Angeles, where 

the monitoring network is capable of 

detecting intra urban variations in PM2.5, we 

observed large effects on death from all 

causes, CVD, IHD, and respiratory disease. 

These results were consistent with past ACS 

[American Cancer Society cohort] analyses 

and with findings from other national or 

international studies reviewed in this report. 

Our strongest results were from a land use 

regression estimate of NO2, which is 

generally thought to represent traffic sources, 

where significant elevated effects were found 

on deaths from all causes, CVD, IHD, and 

lung cancer. We therefore concluded that 

combustion-source air pollution as 

significantly associated with premature death 

in this large cohort of Californians.109

EPA will address in turn: (1) 

Suggestions that PM2.5 does not present 

a public health risk in general; (2) 

suggestions that PM2.5 from diesel 

combustion does not present a public 

health risk; and (3) suggestions that 

PM2.5 from diesel combustion located in 

California does not present a public 

health risk. 

EPA disagrees with the commenters 

regarding the evidence associated with 

PM exposure in the context of all three 

suggestions noted above. 

Regarding the claim that there is no 

link between health effects, including 

mortality, and exposure to PM2.5, EPA 

disagrees with this comment and notes 

the large body of scientific literature 

that was thoroughly evaluated during 

the NAAQS review process is discussed 

in detail in EPA’s Integrated Science 

Assessment (ISA) for Particulate 

Matter.110 The ISA characterizes the 

weight of evidence for different health 

effects and makes causal determinations 

for both short-term (i.e., hours to days) 

and long-term (i.e., months to years) 

exposures to PM2.5, PM10–2.5, and 

ultrafine particles. Specifically in the 

ISA, the EPA carefully evaluated and 

integrated the scientific evidence from 

across epidemiological, toxicological 

and controlled human exposure studies 

to make inferences about causality. The 

PM ISA considered and assessed an 

extensive body of scientific information, 

all of which had undergone peer-review 

prior to being published.111

Overall, the PM ISA provides a 

concise evaluation and integration of 

the policy-relevant science. This 

includes key science judgments upon 

which EPA based its Quantitative 

Health Risk Assessment for Particulate 

Matter (PM RA, U.S. EPA, 2010), and 

the Policy Assessment for the Review of 

Particulate Matter National Ambient Air 

Quality Standards (PM PA, U.S. EPA, 

2011).112 These documents informed 

EPA’s 2012 rule completing review of 

the PM NAAQS.113

After a thorough evaluation and 

integration of the evidence across 

scientific disciplines, the PM ISA made 

causal determinations for the health 

effects associated with both short- and 

long-term exposures to PM2.5.114 For 

short-term exposures, the PM ISA 

concludes that cardiovascular effects 

(e.g., emergency department (ED) visits 

and hospital admissions for ischemic 

heart disease (IHD) and congestive heart 

failure (CHF), changes in cardiovascular 

function, and myocardial ischemia), and 

premature mortality are causally 

associated with short-term exposure to 

PM2.5. It also concludes that respiratory 

effects (e.g., ED visits and hospital 

admissions for chronic obstructive 

pulmonary disease (COPD), respiratory 

infections, and asthma; and 

exacerbation of respiratory symptoms in 

asthmatic children) are likely to be 

causally associated with short-term 

exposure to PM2.5. For long-term 

exposures, the PM ISA concludes that 

there are causal associations between 

long-term exposure to PM2.5 and 

cardiovascular effects, such as the 

development/progression of 

cardiovascular disease (CVD), and 

premature mortality, particularly from 

cardiovascular causes. It also concludes 

that long-term exposure to PM2.5 is 

likely to be causally associated with 

respiratory effects, such as reduced lung 

function growth, increased respiratory 

symptoms, and asthma development. 

The ISA characterizes the evidence as 

suggestive of a causal relationship for 

associations between long-term PM2.5

exposure and reproductive and 

developmental outcomes, such as low 

birth weight and infant mortality. It also 

characterizes the evidence as suggestive 

of a causal relationship between PM2.5

and cancer incidence, mutagenicity, and 

genotoxicity.115 EPA’s evaluation of the 

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the body of scientific evidence regarding particles 

available through mid-2009, which included over 

two thousand new studies. The ISA received two 

rigorous rounds of peer review by the independent 

Clean Air Scientific Advisory Committee (CASAC) 

and two draft PM ISAs were made available for 

public review and comment. 116 Id. EPA is only reviewing the comments 

submitted to the EPA–HQ–OAR–008–0691 public 

docket for CARB’s authorization request and EPA 

the responses to such comments are not intended 

to imply that EPA is engaged in a reexamination of 

the issues thoroughly examined in the recent PM 

NAAQS review. 

117EPA is only reviewing the comments 

submitted to the EPA–HQ–OAR–2008–0691 public 

docket for CARB’s authorization request and EPA’s 

responses to such comments are not intended to 

imply that EPA is engaged in a reexamination of the 

issues thoroughly examined in the recent PM 

NAAQS review. 

118See ISA at 2–26. 

119EPA noted that an association was reported for 

long-term PM2.5 exposure with all-cause deaths 

from 1973–1982. However, no significant 

associations were reported with deaths in later time 

periods when PM2.5 levels had decreased in the 

most polluted counties (1983–2002). The PM2.5 data 

were obtained from the EPA’s Inhalation Particle 

Network (collected 1979–1983), and the locations 

represented a subset of data used in the 50-city ACS 

study (Pope et al., 1995, 045159). However, the use 

of average values for California counties as 

exposure surrogates likely leads to significant 

exposure error, as many California counties are 

large and quite topographically variable. ISA, at 7– 

85. 

120See Dr.Malkan. 

121See ‘‘Responses to Significant Comments on 

the 2012 Proposed Rule on the National Ambient 

Air Quality Standards for Particulate Matter (June 

29, 2012; 77 FR 38890). http://www.epa.gov/ttn/

naaqs/standards/pm/data/20121214rtc.pdf at II–9 

to II–12 for discussion of EPA’s application of its 

framework for causal determinations and 

recognition of the distinction between evaluating 

the relative scientific quality of individual study 

results and the evaluation of the pattern of results 

within the broader body of scientific evidence. 

studies presented in the ISA, as well as 

the causal framework and 

determinations upon which the 

Assessment is based, have undergone 

extensive critical review by the EPA, 

CASAC, and the public during its 

development. The rigor of the review 

makes the ISA the most reliable source 

of scientific information on the subject 

of PM and health and welfare effects. 

Additionally, new health studies 

published since the completion of the 

ISA were discussed in EPA’s 

Provisional Science Assessment (U.S. 

EPA, 2012), which was used to ensurethe Administrator was fully aware of the 

‘‘new’’ science that developed since 

2009 before making final decisions on 

whether to retain or revise the ambient 

PM standards. Overall, the new health 

studies were found not to materially 

change the conclusions of the 2009 ISA. 

As in prior NAAQS reviews, the EPA 

based its final decisions on the studies 

and related information included in the 

ISA, RA, and PA which had undergone 

CASAC and public review. To the 

extent that the commenters attempt to 

introduce new arguments or new 

studies that have not been peerreviewed, including the 2011 Jerrett 

study, EPA believes the new science 

published after the ISA does not 

materially change the conclusions found 

within the ISA.116 As noted above, EPA 

has recently concluded its PM NAAQS 

review. No comments submitted in the 

context of this authorization proceeding 

lead the Agency to reassess (for 

purposes of this authorization) the 

findings related to PM exposure and 

health effects. EPA notes that the study 

referenced by Mr. Milloy in his 

comments was never provided to EPA 

nor has EPA found it in the peerreviewed literature. Therefore EPA has 

no basis to review the technical 

methods used or the summary 

results.117

With regard to suggestions that PM2.5

from diesel combustion does not present 

a public health risk or assertions that 

PM2.5 composition is determinative to 

risk, EPA believes that the available 

scientific evidence linking mortality and 

morbidity effects with long-and shortterm exposures to fine particles 

continue to be largely indexed by PM2.5

mass. In the PM NAAQS review 

completed in 2012, EPA concluded that 

it was appropriate to retain PM2.5 as the 

indicator for fine particles due to the 

inability to differentiate those 

components or sources that are more 

closely related to specific health 

outcomes nor to exclude any component 

or group of components from the mix of 

fine particles included in the PM2.5

indicator. As EPA previously stated in 

the ISA ‘‘overall, the results indicate 

that many constituents of PM can be 

linked with differing health effects and 

the evidence is not yet sufficient to 

allow differentiation of those 

constituents or sources that are more 

closely related to specific health 

outcomes.’’ 118

With regard to suggestions that EPA 

did not properly consider prior reports 

(including the 2005 Dr. Enstrom study), 

EPA notes the Enstrom study was 

included in summary figures depicting 

the totality of the evidence for long-term 

PM2.5 exposure and mortality.119 It is 

important to note that Dr. Enstrom 

based his comments solely on statistical 

significance. Another commenter also 

asserts that studies looking at 

associations between PM and premature 

mortality do not have statistically 

significant results.120 EPA responded in 

the NAAQS rulemaking to the issue of 

relying on statistical significance and 

why it is not appropriate to only focus 

on it when evaluating a body of 

evidence.121 Specifically, EPA stated: 

Statistical significance is an indicator of 

the precision of a study’s results, which is 

influenced by a variety of factors including, 

but not limited to, the size of the study, 

exposure and measurement error, and 

statistical model specifications. Statistical 

significance is just one of the means of 

evaluating the validity of the relationships 

determined with epidemiological studies. 

The EPA can reasonably look to other indicia 

of reliability such as the consistency and 

coherence of a body of studies as well as 

other confirming data to justify reliance on 

the results of a body of epidemiological 

studies, even if individual studies may lack 

statistical significance. American Trucking 

Association v. EPA, 283 F. 3d 355, 371 (D.C. 

Cir. 2002). As a result, in developing an 

integrated assessment of the health effects 

evidence for PM, the EPA has emphasized 

the importance of examining the pattern of 

results across various studies and their 

coherence and consistency, and has not 

focused solely on statistical significance as a 

criterion of study reliability. 

It has been clearly articulated throughout 

the epidemiological and causal inference 

literature that it is important not to focus on 

results of statistical tests to the exclusion of 

other information. For example, Rothman 

(1998) stated: ‘‘Many data analysts appear to 

remain oblivious to the qualitative nature of 

significance testing [and that] . . . statistical 

significance is itself only a dichotomous 

indicator. As it has only two values, 

significant or not significant.’’ As a result, 

Rothman recommended that P-values be 

omitted as long as point and interval 

estimates are available. 

The concepts underlying the EPA’s 

approach to evaluating statistical associations 

reported for the health effects on PM2.5 have 

been discussed in numerous publications, 

including a report by the U.S. Surgeon 

General on the health consequences of 

smoking (Centers for Disease Control and 

Prevention, 2004). This report cautions 

against overreliance on statistical 

significance in evaluating the overall 

evidence for an exposure-response 

relationship: Hill made a point of 

commenting on the value, or lack thereof, of 

statistical testing in the determination of 

cause: ‘‘No formal tests of significance can 

answer those [causal] questions. Such tests 

can, and should, remind us of the effects the 

play of chance can create, and they will 

instruct us in the likely magnitude of those 

effects. Beyond that, they contribute nothing 

to the ‘proof’ of our hypothesis’’ (Hill 1965, 

p. 299). Hill’s warning was in some ways 

prescient, as the reliance on statistically 

significant testing as a substitute for 

judgment in a causal inference remains today 

(Savitz et al., 1994; Holman et al., 2001; 

Poole 2001). To understand the basis for this 

warning, it is critical to recognize the 

difference between inductive inferences 

about the truth of underlying hypotheses, 

and deductive statistical calculations that are 

relevant to those inferences, but that are not 

inductive statements themselves. The latter 

include p values, confidence intervals, and 

hypothesis tests (Greenland 1998; Goodman 

1999). The dominant approach to statistical 

inference today, which employs those 

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122 Id. 123 Id. 

statistical measures, obscures this important 

distinction between deductive and inductive 

inferences (Royall 1997), and has produced 

the mistaken view that inferences flow 

directly and inevitably from data. There is no 

mathematical formula that can transform data 

into a probabilistic statement about the truth 

of an association without introducing some 

formal quantification of external knowledge, 

such as in Bayesian approaches to inference 

(Goodman 1993; Howson and Urbach, 1993). 

Significance testing and the complementary 

estimation of confidence intervals remain 

useful for characterizing the role of chance in 

producing the association in hand (CDC, 

2003, pp. 23 to 24). 

Accordingly, the statistical significance of 

findings from an individual study has played 

an important role in the EPA’s evaluation of 

the study’s results and overall the EPA has 

placed greater emphasis on studies reporting 

statistically significant results in making 

determinations as to the elements of the 

standard. In particular, as noted in section 

III.E.4.b.i of the preamble to the final rule, the 

EPA identified long- and short-term exposure 

studies considered ‘‘key’’ multi-city studies 

for consideration for informing the decisions 

on the appropriate standard levels and 

included those studies observing effects for 

which the evidence supported a causal or 

likely causal association. Figure 4 in the 

preamble to the final rule (also Figure 4 in 

the proposal, 77 FR 38933) represents the 

subset of multi-city studies included in 

Figures 1 through 3 of the preamble to the 

final rule (also Figures 1 through 3 in the 

proposal, 77 FR 38929 to 38931) that 

provided evidence of positive and generally 

statistically significant effects associated in 

whole, or in part, with more recent air 

quality data, generally representing health 

effects associated with lower PM2.5

concentrations than had previously been 

considered in the last review. 

The EPA notes that many of these studies 

evaluated multiple health endpoints, and not 

all of the effects evaluated provided evidence 

of positive and statistically significant effects. 

For purposes of informing the 

Administrator’s decision on the appropriate 

standard levels, the Agency considers the full 

body of scientific evidence and focuses on 

those aspects of the key studies that provided 

evidence of positive and generally 

statistically significant effects. However, in 

the broader evaluation of the evidence from 

many epidemiological studies, and 

subsequently during the process of forming 

causality determinations, the EPA has 

emphasized the pattern of results across 

epidemiological studies for drawing 

conclusions on the relationship between 

PM2.5 and health outcomes, and whether the 

effects observed are coherent across the 

scientific disciplines. Thus, in making 

causality determinations, the EPA did not 

limit its focus or consideration to just studies 

that reported positive associations or where 

the results were statistically significant.122

In addition, EPA has previously 

addressed the issue of what one 

commenter calls ‘‘confounding health 

factors.’’ In the case of short-term 

exposure studies, a confounder would 

need to vary on a day-to-day basis with 

both air pollution and with the specific 

health outcome being evaluated (e.g., 

mortality or hospital admissions or 

emergency department visits). The 

confounders that fit these criteria for 

short-term exposure studies are related 

to weather (e.g., temperature, dew point, 

relative humidity). The short-term 

exposure studies, specifically timeseries studies, evaluated in the ISA all 

included weather covariates in their 

models to account for their potential 

confounding effects (U.S. EPA, 2009a, 

Chapter 6). 

With regard to long-term exposure studies, 

a number of multilevel cohort studies (Naess 

et al. 2007; Jerrett et al. 2003; Jerrett et al. 

2005) have evaluated individual-level and 

contextual, or ecologic-level variables as 

potential confounders. As reported in Jerrett 

et al. (2005), ‘‘Contextual effects occur when 

individual differences in health outcomes are 

associated with the grouped variables that 

represent the social, economic, and 

environmental settings where the individuals 

live, work, or spend time (e.g., poverty or 

crime rate in a neighborhood). These 

contextual effects often operate 

independently from (or interactively with) 

the individual-level variables such as 

smoking.’’ These studies found that the 

inclusion of contextual variables tended to 

attenuate the risk estimates for the 

association between long-term exposure to 

PM2.5 and mortality, but that an independent 

effect of PM2.5 on mortality remains. For 

example, Jerrett et al. (2005) found that for 

PM2.5 (controlling for age, sex, and race), the 

relative risk was 1.24 (95% CI 1.11, 1.37) for 

a 10 mg/m3 exposure contrast. In a 

parsimonious model that controlled for 44 

different individual covariates and ecological 

confounder variables that both reduced the 

pollution coefficient and had associations 

with mortality, the relative risk was 1.11 

(95% CI 0.99, 1.25) for the same exposure 

contrast. The EPA believes that the results of 

these studies provide confidence that more 

recent reports with updated datasets are 

showing independent effects of PM2.5.123

One commenter’s assertion that the 

risk from PM is hundreds of times 

smaller than the increased risk of lung 

cancer caused by cigarette smoking, and 

difficult to estimate, has been 

previously addressed during the PM 

NAAQS review. The ‘‘Responses to 

Significant Comments on the 2012 

Proposed Rule on the National Ambient 

Air Quality Standards for Particulate 

Matter’’ stated: 

The comparison of smoking and ambient 

PM-related effect estimates was not 

considered relevant for the PM NAAQS 

review, and thus, was not considered in the 

ISA. This issue was not raised during the 

CASAC and public review of the drafts of the 

ISA. In order to address the comments 

submitted, the EPA conducted a provisional 

review of the ‘‘new’’ literature published 

since the close of the ISA including studies 

cited by commenters, and identified several 

relevant studies that compared and evaluated 

effect estimates determined for relationships 

between specific health outcomes and 

ambient particulate matter and active 

smoking (Pope et al. 2009; Pope et al. 2011). 

These authors analyzed data from the 

American Cancer Society cohort in order to 

evaluate the shape of the exposure-response 

relationship for PM2.5 and both lung cancer 

mortality (Pope et al. 2011) and 

cardiovascular disease (CVD) mortality (Pope 

et al. 2009; Pope et al. 2011). In these studies, 

the authors evaluated three sources of 

exposure to PM2.5: active smoking, passive 

smoking, and ambient air pollution. 

For lung cancer mortality, the authors 

observed ‘‘a monotonic, nearly linear 

exposure response relationship with fairly 

constant marginal increases in RR [relative 

risk] with increasing exposure’’ across the 

full range of observed exposures (Pope et al. 

2011). When the authors evaluated CVD 

mortality, they observed ‘‘an exposureresponse relationship that is substantially 

non-linear, that is, much steeper at the very 

low levels of exposure compared with higher 

levels of exposure’’ (Pope et al. 2011). In fact, 

the study authors noted that ‘‘For lung cancer 

mortality, the RRs steadily increase to nearly 

40 at the highest increment of cigarette 

smoking (>42 cigarettes per day), whereas for 

CVD mortality, the RRs level off at 

approximately 2.0–2.5.’’ 

Because of the much steeper exposureresponse relationship for long-term exposure 

to PM2.5 and CVD mortality at low PM2.5

concentrations, which flattens out at higher 

PM2.5 concentrations (i.e., those associated 

with passive and active cigarette smoking), it 

is biologically plausible that the risk 

estimates for CVD mortality due to exposure 

to ambient concentrations of PM2.5 would be 

similar to risk estimates for CVD mortality 

due to active cigarette smoking. These results 

are consistent with the results observed in 

epidemiological studies of long-term 

exposure to PM2.5 and mortality, and with the 

conclusions drawn in the ISA. For example, 

Dockery et al. (1993) found essentially the 

same risk estimates for CVD mortality 

associated with both ambient PM2.5

concentrations and active cigarette smoking 

in an area with relatively high levels of 

ambient PM2.5concentration. 

Additionally, there could be nontraditional confounders have not been 

accounted for in epidemiological studies of 

short- and long-term exposure to air 

pollution. These confounders include 

physical and psychological population stress 

factors. The EPA disagrees with these 

commenters because: (1) There is very 

limited evidence of stress affecting the air 

pollution-health effect relationship upon 

which to base the commenters assertion; (2) 

in order for stress to be a true confounder it 

would need to vary temporally (for shortterm exposure studies) and spatially (for 

long-term exposure studies) with both air 

pollution concentrations and the health effect 

of interest, which has not been demonstrated; 

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124EPA’s Response to Comments: http://

www.epa.gov/ttn/naaqs/standards/pm/data/

20121214rtc.pdf at II 23–25. 

125See Dr. Phalen comment. 

126See Dr. Malkan comment. 

127See ‘‘Responses to Significant Comments on 

the 2012 Proposed Rule on the National Ambient 

Air Quality Standards for Particulate Matter (June 

29, 2012; 77 FR 38890). http://www.epa.gov/ttn/

naaqs/standards/pm/data/20121214rtc.pdf at II– 

37–II–38. 

and (3) rather than stress acting as a true 

confounder, more than likely stress is on the 

causal pathway to the health effects that have 

been observed to be associated with air 

pollution. The EPA acknowledges that stress 

may contribute bias to epidemiological 

studies; however, stress more than likely 

would influence the magnitude of individual 

effect estimates in a single-city or multi-city 

study and not the trends of positive 

associations observed across studies 

conducted in multiple locations.’’ 124

With regard to the third set of PM2.5

health effect comments noted above 

(suggestions that PM2.5 from diesel 

combustion located in California does 

not present a public health risk), we 

note that the isolated studies noted by 

the commenters are either consistent 

with past peer-reviewed studies 

supportive of PM2.5-related health 

effects, or have been considered 

previously by EPA and were considered 

as part of the weight of evidence used 

to make conclusions in the ISA. 

Some of the commenters asserted that 

the composition of PM in California is 

less toxic than the PM in other areas of 

the country. One commenter asserted 

that ‘‘[t]he scientific evidence on the 

health effect of particulate matter air 

pollution in CA does not support its 

further control or regulation at this time. 

Our PM2.5 is different in composition 

and is less toxic than that in many 

Eastern regions of the U.S.’’ 125 Another 

commenter states that ‘‘[t]he 

composition of what CARB defines as 

PM2.5 has changed over time, and is not 

the same as what has been studied in 

the Eastern half of the United 

States.’’ 126 EPA responded to questions 

about heterogeneity in risk estimates in 

the PM NAAQS Review and that 

response is included here. EPA finds 

that no new evidence has been 

submitted in the context of the 

authorization proceeding to change this 

conclusion. 

EPA responded in the PM NAAQS 

review that with respect to 

understanding the nature and 

magnitude of PM2.5-related risks: 

[T]he EPA agrees that epidemiological 

studies evaluating health effects associated 

with long- and short-term PM2.5 exposures 

have reported heterogeneity in responses 

between cities and effect estimates across 

geographic regions of the U.S. (U.S. EPA, 

2009a, sections 6.2.12.1, 6.3.8.1, 6.5.2, and 

7.6.1; U.S. EPA, 2011a, p. 2–25). For 

example, when focusing on short-term PM2.5

exposure, the ISA found that multi-city 

studies that examined associations with 

mortality and cardiovascular and respiratory 

hospital admissions and emergency 

department visits demonstrated greater 

cardiovascular effects in the eastern versus 

the western U.S. (Dominici, et al., 2006a; Bell 

et al., 2008; Franklin et al. (2007, 2008)). 

However, the rationale that heterogeneity in 

risk estimates presents a potential bias as 

posed by the commenters is simplistic and 

does not account for a number of factors that 

have been shown to influence city-specific 

risk estimates in epidemiologic studies. As 

discussed in the ISA, the EPA recognizes that 

there are compositional differences in PM2.5

across the country and that the county-level 

air quality data used in epidemiological 

studies may result in exposure error, which 

could in part account for variability in cityspecific risk estimates (U.S. EPA, 2009a, 

section 2.3.2). 

There are a limited number of studies that 

evaluated regional heterogeneity in the 

association between long-term exposure to 

PM2.5 and mortality. Krewski et al. (2009a) 

conducted subset analyses of the ACS cohort 

in Los Angeles, CA and New York City, NY, 

and observed a relative risk in Los Angeles 

that was greater in magnitude than what was 

observed in the full ACS cohort, while the 

relative risk in New York City was less than 

what was observed in the full ACS cohort. 

These observations are likely due to the 

greater spatial heterogeneity in PM2.5

concentrations observed in Los Angeles, and 

the overall spatial homogeneity of PM2.5

concentrations in New York City. 

In another retrospective cohort, Zeger et al. 

(2008) observed associations between long 

term exposure to PM2.5 and mortality for the 

eastern and central ZIP codes that were 

similar to those reported in the ACS and 

Harvard Six Cities studies, though no 

association was observed in the western 

region. The lack of the association in the 

western region is ‘‘largely because the Los 

Angeles basin counties (California) have 

higher PM levels than other West Coast urban 

centers, but not higher adjusted mortality 

rates’’ (Zeger et al. 2008). The ISA also 

evaluated studies that provided some 

evidence for seasonal differences in PM2.5

risk estimates, specifically in the northeast. 

The ISA found evidence indicating that 

individuals may be at greater risk of dying 

from higher exposures to PM2.5 in the warmer 

months, and at greater risk of PM2.5

associated hospitalization for cardiovascular 

and respiratory diseases during colder 

months of the year. The limited influence of 

seasonality on PM risk estimates in other 

regions of the U.S. may be due to a number 

of factors including varying PM composition 

by season, exposure misclassification due to 

regional tendencies to spend more or less 

time outdoors and air conditioning usage, 

and the prevalence of infectious diseases 

during the winter months (U.S. EPA, 2009a, 

p. 3–182). 

Overall, the EPA recognizes that 

uncertainties still remain regarding various 

factors that contribute to heterogeneity 

observed in epidemiological studies (77 FR 

38909/3). Nonetheless, the EPA recognizes 

that this heterogeneity could be attributed, at 

least in part, to differences in PM2.5

composition across the U.S., as well as to 

exposure differences that vary regionally 

such as personal activity patterns, 

microenvironmental characteristics, and the 

spatial variability of PM2.5 concentrations in 

urban areas (U.S. EPA, 2009a, section 2.3.2; 

77 FR 38910). 

As recognized in the PA, the current 

epidemiological evidence and the limited 

amount of city-specific speciated PM2.5 data 

does not allow conclusions to be drawn that 

specifically differentiate effects of PM in 

different locations (U.S. EPA, 2011a, p. 2– 

25). Furthermore, as discussed in section 

III.E.1 of the preamble to the final rule, the 

ISA concluded, ‘‘that many constituents of 

PM2.5 can be linked with multiple health 

effects, and the evidence is not yet sufficient 

to allow differentiation of those constituents 

or sources that are more closely related to 

specific health outcomes’’ (U.S. EPA, 2009a, 

p. 2–17). CASAC thoroughly reviewed the 

EPA’s presentation of the scientific evidence 

indicating heterogeneity in PM2.5 effect 

estimates in epidemiological studies and 

concurred with the overall conclusions 

presented in the ISA (Pages 6–179–180, 

Figure 6–25, Figure 6–26).127

In the PM ISA EPA has also stated: 

Additionally it is important to point out 

that there are a few CA-specific time-series 

studies conducted by Ostro et al. that did 

find associations with PM2.5. These are 

discussed in the ISA PM2.5-Mortality 

Associations on a Regional Scale: California. 

Ostro et al. (2006, 087991) examined 

associations between PM2.5 and daily 

mortality in nine heavily populated 

California counties (Contra Costa, Fresno, 

Kern, Los Angeles, Orange, Riverside, 

Sacramento, San Diego, and Santa Clara) 

using data from 1999 through 2002. The 

authors used a two-stage model to examine 

all-cause, respiratory, cardiovascular, 

ischemic heart disease, and diabetes 

mortality individually and by potential effect 

modifier (i.e., age, gender, race, ethnicity, 

and education level). The a priori exposure 

periods examined included the average of 

0- and 1-day lags (lag 0–1) and the 2-day lag 

(lag 2). The authors selected these nonoverlapping lags (i.e., rather than selecting 

lag 1 as the single-day lag) because previous 

studies have reported stronger associations at 

lags of 1 or 2 days or with cumulative 

exposure over three days. It is unclear why 

the investigators chose these non-overlapping 

lags (i.e., single-day lag of 2 instead of 1) 

even though they state they based the 

selection of their lag days on results 

presented in previous studies, which found 

the strongest association for PM lagged 1 or 

2 days. Using the average of 0- and 1-day lags 

Ostro et al. (2006, 087991) reported 

combined estimates of: 0.6% (95% CI: 0.2– 

1.0), 0.6% (95% CI: 0.0–1.1), 0.3% (95% CI: 

–0.5 to 1.0), 2.2% (95% CI: 0.6–3.9), and 

2.4% (95% CI: 0.6–4.2) for all-cause, 

cardiovascular, ischemic heart disease, 

respiratory, and diabetes deaths, respectively, 

per 10 mg/m3. 

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128See EPA–HQ–OAR–2008–0691–0318- 

attachment 3 and http://yosemite.epa.gov/sab/

sabproduct.nsf/368203f97a15308a852574ba

005bbd01/8bee96ad3228eabe85257604

00702786!OpenDocument at 6–179. 

129CCTA; ‘‘Mortality Among Members of a Truck 

Driver Trade Associations’’ AAOHN Journal Vol. 

58. No. 11, 2010 at 473. 

130See CARB Authorization Request at 4 (‘‘Even 

as amended to provide immediate short-term relief 

to fleets adversely impacted by the recession, the 

In-Use Off-Road Regulation is expected to achieve 

a 17 percent reduction in NOX emissions and a 21 

percent reduction in PM2.5 emissions in 2023 from 

forecasted emissions that would exist without a 

regulation in place.’’). 

. . . Five of the nine counties examined in 

the Ostro et al. (2006, 087991) analysis 

contain cities that are among the 2 cities 

examined in the Franklin et al. (2007, 

091257) analysis for the same period, 1999– 

2002. While the lags used were different 

between these two studies, both presented 

PM2.5 risk estimates in individual cities or 

counties (graphically in the Franklin et al. 

study (2007, 091257); in a table in the Ostro 

et al. study (2006, 087991)), which allowed 

for a cursory evaluation of consistency 

between the two analyses. In Franklin et al. 

(2007, 091257), PM2.5 risk estimates at lag 1 

day for the cities Los Angeles and Riverside 

were slightly negative, whereas Fresno, 

Sacramento, and San Diego showed positive 

values above 1% per 10 mg/m3 increase in 

PM2.5. The 2-day lag result presented in Ostro 

et al. (2006, 087991) is qualitatively 

consistent, with Los Angeles and Riverside, 

both of which show slightly negative 

estimates, while the other 3 locations all 

show positive, but somewhat smaller 

estimates, than those reported by Franklin et 

al. (2007, 091257). The estimates for the 

average of 0- and 1-day lags for these five 

counties in Ostro et al. (2006, 087991), which 

contain cities examined in Franklin et al. 

(2007, 091257), were all positive. Thus, these 

two PM2.5 studies showed some consistencies 

in risk estimates even though they used 

different lag periods and a different 

definition for the study areas of interest (i.e., 

counties vs. cities).128

Thus, as noted in EPA’s PM NAAQS 

review and the Response to Comments 

document referenced above, EPA has 

stated it agrees that epidemiological 

studies evaluating health effects 

associated with long- and short-term 

PM2.5 exposures have reported 

heterogeneity in responses between 

cities and effect estimates across 

geographic regions of the United States. 

However, EPA believes it critical to 

understand the issue in context and 

EPA’s overall approach in concluding as 

it did in the ISA, ‘‘that many 

constituents of PM2.5 can be linked with 

multiple health effects, and the 

evidence is not yet sufficient to allow 

differentiation of those constituents or 

sources that are more closely related to 

specific health outcomes.’’ EPA finds 

that no new evidence has been 

submitted in the context of the 

authorization proceeding to change this 

conclusion. 

With regard to the claims made by Dr. 

Phalen in comments on this 

authorization proceeding, Dr. Phalen 

does not provide any evidence or 

studies to support the proposition that 

PM2.5 is not only different in 

composition in California but as a result 

is less toxic, or present evidence as to 

the level of reduced toxicity. With 

regard to Dr. Enstrom’s comments 

regarding differences in PM health risk 

in California compared to other 

locations, as discussed above, EPA has 

previously reviewed Dr. Enstrom’s 

studies and has responded to his 

comments, as well as others, on this 

issue. As explained above, EPA has 

examined the issue of whether PM2.5

composition is determinative and found 

that the scientific evidence is not yet 

sufficient to allow differentiation of 

those components or sources that are 

more closely related to specific health 

outcomes nor to exclude any component 

or group of components from the mix of 

fine particles included in the PM2.5

indicator. EPA similarly concluded that 

current evidence does not allow 

conclusions to be drawn that 

differentiate effects of PM in different 

locations. 

With regard to the claims of omissions 

in EPA’s Regulatory Impact Analysis 

(RIA) for its proposed PM air quality 

standards, it is necessary to understand 

that only the peer-reviewed studies 

cited in the PM ISA (2009) or PM 

Provisional Science Assessment (2012) 

were listed in the RIA table. 

Furthermore, the inclusion or exclusion 

of a study published after the 

Provisional Science Assessment would 

not materially change the large body of 

scientific evidence indicating an effect 

of PM2.5 exposure on human health. 

With regard to the claims based on the 

Trucker Study noted above, the study 

does not attempt to examine air 

pollution-related health effects or 

provide any measure of air pollution 

exposure in the cohort examined. The 

study looked only at mortality rates for 

certain deaths within the population 

studied. EPA notes that the Truck Driver 

study contains a research abstract that 

plainly states ‘‘[t]he absence of disease 

mortality deserves careful 

interpretation, and may be due to both 

a strong healthy worker effect and a 

short monitoring period.’’ 129 We note 

that this study did not include an actual 

close study of air quality and PM 

exposure levels and otherwise is not of 

scientific significance. This type of 

study as well as the other few studies 

submitted in isolation does not 

overcome the significant evidence and 

scientific evidence that has been peer 

reviewed and found PM to be associated 

with health effects. 

The comments provided do not 

provide sufficient evidence to meet the 

authorization opponents’ burden of 

showing that PM emissions in California 

do not create any risk to public health, 

particularly given the substantial body 

of evidence suggesting such a risk. 

Therefore, even if EPA were to apply the 

alternative interpretation of section 

209(e)(2)((A)(ii) and examine whether 

CARB has a specific need for its Fleet 

Requirements, the opponents of the 

authorization have not met their burden 

of proof to demonstrate that California 

no longer continues to have serious air 

quality issues related to PM and NOX, 

that are created by California’s 

underlying compelling and 

extraordinary conditions. The evidence 

submitted to the record, in addition to 

EPA’s own PM NAAQS review and the 

multitude of studies reviewed therein 

and conclusions of EPA that were peer 

reviewed by CASAC, continue to 

demonstrate requisite health effects due 

to PM exposure and therefore the 

authorization cannot be denied on this 

basis. 

Finally, EPA notes that CARB’s Fleet 

Requirements are designed not only to 

reduce PM emissions and public health 

consequences, as discussed above, but 

also to address the harmful effects of 

ozone by reducing emissions of NOX, as 

an ozone precursor, from the in-use 

fleet.130 There is no evidence in the 

record to suggest that ozone pollution is 

not harmful to public health or that 

CARB’s Fleet Requirements are not 

needed in that context. 

In conclusion, even if EPA were to 

use the alternative approach outlined 

above—that of reviewing the need for 

the Fleet Requirements per se to meet 

compelling and extraordinary 

conditions in California—EPA finds that 

the opponents of the authorization have 

not met their burden of proof. Therefore, 

even if EPA were to use this alternative 

approach, we could not deny the 

authorization on this basis. 

c. Additional PM Comments 

EPA also received comment from the 

PLF focused on the recent decision 

issued by the United States Court of 

Appeals for the District of Columbia 

Circuit in Natural Resources Defense 

Counsel v. EPA, No 08–1250, January 4, 

2013, (NRDC v. EPA) concerning 

implementation regulations applicable 

to the 1997 PM2.5 NAAQS. PLF 

characterizes the court’s decision as 

requiring EPA itself to adopt stringent 

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131See 59 FR 36969 (July 20, 1994). 

federal implementation standards for 

PM2.5 throughout the nation, including 

California. Because California asserted 

that it ‘‘needs’’ nonroad diesel PM 

standards that are more stringent than 

federal nonroad PM standards, and 

because (in PLF’s view) EPA is now 

required to use the ‘‘stringent, actionforcing provisions’’ of section 188– 

188(b) of the Clean Air Act as a result 

of the Decision, PLF maintains that it is 

appropriate to complete EPA’s 

administrative proceedings on remand 

(from the decision) for implementation 

regulations before EPA is able to 

determine the extent to which there is 

a ‘‘need’’ for California to have its own 

PM2.5 nonroad diesel standard for 

engines and vehicles based on 

‘‘compelling and extraordinary 

conditions’’ in California. In addition, 

PLF highlights EPA’s most recent 

revision of the primary annual NAAQS 

for PM2.5, which lowered the prior 

standard from 15.0 micrograms per 

cubic meter to 12.0 micrograms per 

cubic meter, and the concomitant 

revision to the Air Quality Index for 

PM2.5. PLF asserts that these events 

provide additional reasons to question 

California’s ‘‘need’’ for its own PM2.5

nonroad diesel standard. 

PLF’s reliance on NRDC v. EPA is 

misplaced. That decision pertains only 

to EPA’s regulations governing how 

states should address the statutory 

requirements for attainment plans. It 

does not require EPA ‘‘to move ahead in 

implementing strict federal PM2.5

controls,’’ through its own regulations 

as opposed to state regulation of PM2.5

and PM2.5 precursors. The Clean Air Act 

generally requires states to have state 

implementation plans (SIPs) that 

provide for attainment and maintenance 

of the NAAQS, and nothing in the 

Court’s opinion obviates or supplants 

that statutory requirement. Further, the 

NRDC v. EPA decision will not result in 

EPA itself issuing new regulatory 

controls that impose any specific 

emission reductions requirements on 

mobile sources. To the extent that PLF 

is suggesting that EPA itself is now 

required to regulate any particular 

sources more stringently, through 

national standards, such suggestion is 

incorrect. 

To the extent EPA imposes the ‘‘more 

stringent’’ NAAQS implementation 

requirements of sections 188 through 

190 of the Act on the state (rather than 

the ‘‘less stringent’’ implementation 

requirements of sections 171 through 

179B of the Act), then the state will still 

be required to adopt its own regulations 

(e.g. Fleet Requirements) to get 

necessary emission reductions to attain 

and maintain the applicable NAAQS. 

While this may create somewhat lesser 

flexibility for states in developing 

attainment plan measures in the future, 

it by no means negates their SIP 

obligations today. The emission 

reductions from the Fleet Requirements 

take effect at the beginning of 2014, and 

California has shown that it needs these 

reductions as part of the suite of control 

measures that are necessary for 

purposes of attaining and maintaining 

the PM2.5 and ozone NAAQS 

expeditiously. Moreover, states still 

have a great deal of flexibility in 

designing their emission control 

program to achieve needed emission 

reductions, and nothing in the court’s 

opinion in NRDC v. EPA indicates any 

attempt by the court to preclude 

California from using the specific 

flexibility provided by section 

209(e)(2)(A) to reduce emissions 

through regulation of nonroad engines. 

Such emission reductions have been 

instrumental in California’s strategy to 

meet its NAAQS requirements. 

With respect to the revisions to the 

primary annual PM2.5 NAAQS issued in 

December of 2012, the revisions have 

increased the stringency of the standard. 

Thus, if anything, the new PM2.5

standard will increase California’s need 

to find reductions in emissions of PM2.5

and PM2.5 precursors from regulated 

sources, which should only increase the 

need for such regulations such as the 

Fleet Requirements. 

For the reasons set forth above, EPA 

believes that under the alternative 

interpretation of the compelling need 

criterion discussed above, opponents of 

authorization have not meet their 

burden of demonstrating that 

California’s Fleet Requirements do not 

have a rational relationship to 

contributing to amelioration of serious 

air quality problems in California, 

including its PM2.5 and ozone. 

Accordingly, commenters’ assertions to 

the contrary provide no basis for 

denying authorization. 

4. Section 209(e)(2)(A)(ii) Conclusion 

With respect to the need for 

California’s standards to meet 

compelling and extraordinary 

conditions, after an examination of the 

text of section 209 and the legislative 

history, EPA again concludes that the 

best way to interpret this provision is to 

apply the traditional interpretation. 

Under this interpretation, EPA can deny 

authorization under section 

209(e)(2)(A)(ii) only if it finds that 

opponents of authorization have 

demonstrated that California does not 

need a separate nonroad program to 

address compelling and extraordinary 

conditions. Under this traditional 

interpretation, EPA cannot find that 

opponents of the authorization have 

demonstrated that California does not 

need its state standards to meet 

compelling and extraordinary 

conditions. The opponents of the waiver 

have not adequately demonstrated that 

California no longer has a need for its 

nonroad emissions program. 

Even if EPA were to apply the 

alternative interpretation advocated by 

commenters—that EPA is required to 

review, on a case by case basis, whether 

the specific standard submitted by 

CARB is needed to meet compelling and 

extraordinary conditions—EPA cannot 

find that the opponents of the waiver 

have demonstrated that California does 

not need its Fleet Requirements to meet 

compelling and extraordinary 

conditions. 

Accordingly, EPA has determined that 

it cannot deny the authorization request 

under section 209(e)(2)(A)(ii). 

C. Consistency with Section 209 of the 

Clean Air Act 

Section 209(e)(2)(A)(iii) of the Act 

instructs that EPA cannot grant an 

authorization if California’s standards 

and enforcement procedures are not 

consistent with ‘‘this section.’’ As 

described above, EPA’s section 209(e) 

rule states that the Administrator shall 

not grant authorization to California if 

she finds (among other tests) that the 

‘‘California standards and 

accompanying enforcement procedures 

are not consistent with section 209.’’ 

EPA has interpreted the requirement to 

mean that California standards and 

accompanying enforcement procedures 

must be consistent with at least section 

209(a), section 209(e)(1), and section 

209(b)(1)(C), as EPA has interpreted this 

last subsection in the context of motor 

vehicle waivers.131 Thus, this can be 

viewed as a three-pronged test. 

1. Consistency with Section 209(a) 

Section 209(a) of the Clean Air Act 

prohibits states or any political 

subdivisions of states from setting 

emission standards for new motor 

vehicles or new motor vehicle engines. 

Section 209(a) is modified in turn by 

section 209(b) which allows California 

to set such standards if other statutory 

requirements are met. To find a 

standard to be inconsistent with section 

209(a) for purposes of section 

209(e)(2)(A)(iii), EPA must find that the 

standard in question actually regulates 

new motor vehicles or new motor 

vehicle engines. 

In its authorization request, CARB 

stated that by definition, the section 

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132CARB Authorization Request. CARB noted 

that these limited exceptions are provided to afford 

fleet operators of such vehicles additional flexibility 

to address both the in-use on-highway requirements 

associated with the engines designed to propel the 

equipment and the nonroad engines on the vehicles 

designed to perform other functions. Since the 

regulation of such non-new (in use) on-highway 

vehicles (and the engines designed to propel such 

vehicles) is not preempted under section 209(a) 

CARB did not seek a waiver under section 209(b) 

and instead only sought an authorization under 

section 209(e) for the in use nonroad engines 

associated with such on-highway vehicles. 

133 Id at 20. 

134See 40 CFR § 1074.5. 

135CARB’s regulations establishing new emission 

standards for engines less than 175 hp specifically 

do not cover engines that are primarily used in farm 

and construction vehicles and equipment. 

136See Hearing Transcript at 51–52, and ARTBA 

at 2. 

137 59 FR 31306, 31328–31 (June 17, 1994). 

138EMA 88 F3d 1075, 1082–1086 (D.C. Cir. 1996). 

139A more recent opinion in the Court of Appeals 

for the Ninth Circuit agreed with the D.C. Circuit’s 

decision on this issue. National Association of 

Home Builders v. San Joaquin UAPCD, 627 F. 3d 

730 (9th Cir. 2010). 

140 73 FR 59034, 59130 (October 8, 2008). 

141ARTBA v. EPA, 558 F.3d 1109 (D.C. Cir. 2009), 

certiorari denied 131 S.Ct. 338, 178 L.Ed.2d 38. A 

more recent opinion from the Court of Appeals for 

the D.C. Circuit came to the same conclusion. 

ARTBA v. EPA, 705 F.3d 453 (D.C. Cir. 2013) 

142EMA, 88 F3d 1075, (D.C. Cir. 1996). 

209(a) preemption does not apply to 

vehicles covered by the Fleet 

Requirements because the regulation 

only applies to non-new, in-use vehicles 

and engines and not to new motor 

vehicles and engines. CARB also stated 

that with a few limited exceptions— 

workover rigs, two-engine cranes, and 

certain other two-engine vehicles— 

vehicles covered under the Fleets 

Requirements are not motor vehicles 

under the Clean Air Act definition of 

motor vehicles.132 No commenter 

argued the contrary or otherwise 

asserted that the Fleet Requirements are 

not consistent with section 209(a). 

Therefore, EPA cannot deny 

California’s request on the basis that 

California’s Fleet Requirements are not 

consistent with section 209(a). 

2. Consistency with Section 209(e)(1) 

To be consistent with section 

209(e)(1) of the Clean Air Act, 

California’s standards or other 

requirements relating to the control of 

emissions must not relate to new 

engines which are used in farm or 

construction equipment or vehicles and 

which are smaller than 175 horsepower 

(hp), and new locomotives or new 

engines used in locomotives. 

In its Authorization Request, CARB 

stated that the Fleet Requirements 

specifically ‘‘do not apply to 

locomotives and do not apply to new 

farm and construction vehicles and 

equipment less than 175 hp.’’ 133 CARB 

notes that ‘‘implements of husbandry, 

regardless of engine size, are expressly 

excluded from coverage.’’ While CARB 

acknowledged that nonroad 

construction vehicles and engines used 

in such vehicles are covered by the 

Fleets Requirements, CARB stated that 

the regulation does not apply to new 

construction vehicles or engines. 

CARB stated that the Fleet 

Requirements do not attempt to regulate 

new construction sources covered by 

the section 209(e)(1) preemption. New, 

as it applies to nonroad engines and 

equipment other than locomotives and 

engine used in locomotives, means 

engines and equipment whose legal title 

has not been transferred to an ultimate 

purchaser, or in certain cases, to engines 

or vehicles that have been placed into 

service.134 The Fleet Requirements do 

not regulate engines and vehicles 

immediately after their titles are 

transferred or they enter service; 

instead, the regulation exempts any 

vehicle that is less than ten years old 

from the BACT requirements. CARB 

states that while a fleet owner may elect 

to comply with the fleet average or 

BACT requirements by purchasing or 

repowering a vehicle primarily used in 

construction with a new nonroad engine 

under 175 hp, that outcome also does 

not run afoul of the 209(e)(1) 

preemption. CARB notes that this new 

engine is only required to be certified to 

the existing federal nonroad emission 

standards.135 Therefore, the Fleet 

Requirements do not establish standards 

for such new engines. 

EPA received comment from ARTBA 

suggesting that CARB’s regulations run 

afoul of section 209(e)(1)’s preemption 

for ‘‘new engines which are used in 

construction equipment or vehicles or 

farm equipment or vehicles and which 

are smaller than 175 horsepower.’’ 

ARTBA argues that section 209(e)(1)’s 

limitation on state standards or 

emission-related requirements for these 

engine/equipment categories lasts 

throughout the useful life of the 

equipment.136 ARTBA stated in 

comment that under this interpretation, 

California’s authorization request 

should be denied because the Fleet 

Requirements apply to all in-use offroad diesel construction equipment 

greater than 25 HP, including 

equipment in the permanently 

preempted power range. ARTBA did not 

provide any further explanation in its 

written comments or at the public 

hearing as to why this permanent 

preemption of certain types of ‘‘new’’ 

vehicles should be interpreted as 

extending throughout the useful life of 

the vehicles. 

CARB, in response to comments made 

by ARTBA at EPA’s public hearing, 

noted that the contention that the 

preemption under section 209(e)(1) 

extends throughout the useful life of the 

new engine is simply wrong. CARB 

noted that EPA considered and rejected 

this extended definition of ‘‘new’’ in 

section 209(e)(1) during the 209(e) 

rulemaking process.137 CARB also noted 

in its Authorization Request that the 

Court of Appeals in Engine 

Manufacturers Association v. EPA 

(EMA), affirmed EPA’s definition of 

‘‘new’’ as it is applied to off-road 

sources other than locomotives.138 In 

EMA, the court discussed the issue of 

whether EPA’s definition of new 

nonroad engines would effectively 

undermine the section 209(e)(1) 

preemption that states are prohibited 

from adopting emission standards for 

new farm and construction vehicles 

with less than 175 hp. CARB noted that 

the court concluded that EPA’s 

definition of new did not undermine the 

preemption in 209(e)(1).139

CARB also notes the more recent 

history on this issue. In a 2002 petition 

to EPA, ARTBA requested that EPA 

revise its regulations such that nonroad 

engines in the categories covered under 

section 209(e)(1) are preempted for their 

useful lives. EPA denied ARTBA’s 

request,140 and subsequently the United 

States Court of Appeals for the District 

of Columbia dismissed ARTBA’s 

petition for review of that denial.141

At the outset, we note that no 

commenter disputes CARB’s assertion 

that its regulations do not violate 

section 209(e)(1) as EPA’s current 

regulations implement that provision. 

Rather, ARTBA’s comments appear to 

go to the validity of EPA’s longstanding 

regulations, as opposed to the validity of 

California standards currently being 

reviewed under those regulations. As 

such, EPA believes ARTBA’s comments 

are peripheral to this proceeding. EPA is 

not reviewing its authorization 

regulations in this proceeding, but is 

instead reviewing the validity of 

California’s Fleet Requirements under 

those regulations. 

In any event, EPA fully considered 

the scope of preemption issue (the 

definition of ‘‘new’’) during its 1994 

rulemaking which implemented the 

provisions of section 209(e). The 

rationale contained in that rulemaking 

was affirmed by the Court of Appeals in 

EMA.142 As CARB notes, EPA fully 

reviewed its rationale regarding the 

definition of ‘‘new’’ in the context of 

ARTBA’s earlier petition to reconsider 

its regulations and EPA denied the 

petition. No information or argument 

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143ARTBA had previously, though not in this 

proceeding, provided a fuller explanation of its 

view regarding the interpretation of 209(e)(1) and 

we have previously responded that ARTBA’s 

arguments were not persuasive. See 73 FR 59034, 

59130 (October 8, 2008). The U.S. Court of Appeals 

for the District of Columbia subsequently dismissed 

ARTBA’s petition for review of EPA’s response. 

ARTBA v. EPA (2009 D.C. Cir. (588 F.3d 1109, 

rehearing en banc denied (March 5, 2010), certiorari 

denied 131 S.Ct. 388, 178 L.Ed2d 38. ARTBA has 

not made similar or other arguments in this 

proceeding beyond an unsupported statement 

regarding how it interprets the length of the 

preemption, and we do not address that issue in 

depth here, except to say that ARTBA makes no 

attempt to support its assertion. 

144 MEMA I, 627 F.2d at 1126. 

145H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 

301 (1977). 

146See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

FR 32182, 32183 (July 25, 1978); 41 FR 44209, 

44213 (October 7, 1976). 

147 41 FR 44209 (October 7, 1976). 

148H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 

301 (1977). 

149 40 FR 23102, 23103 (waiver decision citing 

views of Congressman Moss and Senator Murphy) 

(May 28, 1975). 

150 Id. at 23103. 

151 MEMA I at 1118 (emphasis added). See also 

id. at 1114 n. 40 ([T])he ‘cost of compliance’ 

criterion relates to the timing of standards and 

procedures. 

has been submitted to the record of this 

proceeding to rebut EPA’s 

interpretation. ARTBA provides no new 

information or argument in the record of 

this proceeding to suggest that EPA 

should change its longstanding 

interpretation of ‘‘new’’ in section 

209(e), 143 and as stated above, EPA is 

not in any case reviewing its regulations 

in the context of this proceeding. 

Moreover, ARTBA does not make any 

factual argument regarding the 

consistency with section 209(e)(1) of the 

particular regulations for which CARB 

is requesting authorization, even under 

ARTBA’s own definition. 

In light of the lack of information in 

the record, and giving due consideration 

to the burden of proof being on the 

opponents of the waiver, EPA cannot 

make a finding that CARB’s Fleet 

Requirements are inconsistent with 

section 209(e)(1)(i). Therefore, EPA 

cannot deny CARB’s authorization 

request on this basis. 

3. Consistency With Section 209(b)(1)(C) 

The requirement that California’s 

standards be consistent with section 

209(b)(1)(C) of the Clean Air Act 

effectively requires consistency with 

section 202(a) of the Act. To determine 

this consistency, EPA has applied to 

California nonroad standards the same 

test it has used previously for California 

motor vehicle standards; namely, state 

standards are inconsistent with section 

202(a) of the Act 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 timeframe. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if federal and California test 

procedures conflicted. The scope of 

EPA’s review of whether California’s 

action is consistent with section 202(a) 

is narrow. The determination is limited 

to whether those opposed to the 

authorization or waiver have met their 

burden of establishing that California’s 

standards are technologically infeasible, 

or that California’s test procedures 

impose requirements inconsistent with 

the federal test procedures.144

EPA does not believe that there is any 

reason to review these criteria any 

differently for EPA’s evaluation of 

California’s Fleet Requirements. There 

is nothing inherently different about 

how the Fleet Requirement control 

technologies should be reviewed when 

making a determination about 

technological feasibility or consistency 

of text procedures. 

a. Technological Feasibility 

The legislative history of section 209 

(including the ‘‘consistency with section 

202(a) requirement in 209(b)((1)(C)) 

indicates that this provision is intended 

to relate to technological feasibility.145

Section 202(a)(2) states, in relevant part, 

that any regulation promulgated under 

its authority ‘‘shall take effect after such 

period as the Administrator finds 

necessary to permit the development 

and application of the requisite 

technology, giving appropriate 

consideration to the cost of compliance 

within such period.’’ Section 202(a) 

thus requires the Administrator to first 

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. The latter 

scenario also requires the Administrator 

to decide whether the cost of developing 

and applying the technology within that 

time is feasible. Previous EPA waivers 

are in accord with this position.146 For 

example, EPA in a 1976 waiver decision 

considered California’s standards and 

enforcement procedures to be consistent 

with section 202(a) because adequate 

technology existed as well as adequate 

lead-time to implement that 

technology.147 The legislative history of 

the 1977 amendments to the Clean Air 

Act indicates Congress’ view that, 

generally, EPA’s construction of the 

waiver provision had been consistent 

with congressional intent.148

EPA also evaluates CARB’s request in 

light of congressional intent regarding 

the waiver program generally. This is 

consistent with the motivation behind 

section 209(b)—to foster California’s 

role as a laboratory for motor vehicle 

emission control, in order ‘‘to continue 

the national benefits that might flow 

from allowing California to continue to 

act as a pioneer in this field.’’ 149 For 

these reasons, EPA believes that 

California must be given substantial 

deference to adopt not only new motor 

vehicle emission standards, but to adopt 

new and in-use nonroad emission 

standards which may require new and/ 

or improved technology. This deference 

was discussed in an early waiver 

decision when EPA approved the 

waiver request for California’s 1977 

model year standards: 

Even on this issue of technological 

feasibility I would feel constrained to 

approve a California approach to the problem 

which I might feel unable to adopt at the 

Federal level in my own capacity as a 

regulator. The whole approach to 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 to 

automotive emission control might be 

attended with costs, in the shape of reduced 

product offering, or price and 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 judgment on that score.150

In MEMA I, the court addressed the 

cost of compliance relative to 

technological feasibility issue at some 

length in reviewing a waiver decision. 

According to the court: 

Section 202’s cost of compliance concern, 

juxtaposed as it is with the requirement that 

the Administrator provide the requisite lead 

time to allow technological developments, 

refers to the economic costs of motor vehicle 

emission standards and accompanying 

enforcement procedures. See S. Rep. No. 192, 

89th Cong., 1st Sass. 5–8 (1965); H.R. Rep. 

No. 728 90th Cong., 1st Sass. 23 (1967), 

reprinted in U.S. Code Cong. & Admin. News 

1967, p. 1938. It relates to the timing of a 

particular emission control regulation rather 

than to its social implications. Congress 

wanted to avoid undue economic disruption 

in the automotive manufacturing industry 

and also sought to avoid doubling or tripling 

the cost of motor vehicles to purchasers. It, 

therefore, requires that the emission control 

regulations be technologically feasible within 

economic parameters. Therein lies the intent 

of the cost of compliance requirement 

(emphasis added).151

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152See, e.g. 47FR 7306, 7309 (Feb. 18, 1982), 43 

FR 25735 (June 14, 1978), and 78 FR 2112, 2134 

(Jan. 9, 2013). 153 36 FR 17158 (August 31, 1971). See also 40 

FR 23102, 23104; 58 FR 4166 (January 7, 1993), LEV 

Waiver Decision Document at 20. 

154CARB Authorization Request at 21. CARB 

notes that meeting the 2020 target would reduce 

diesel PM from all diesel sources by 85 percent 

from the 2000 baseline and would prevent 

thousands of premature deaths and medical 

infirmities. 

Previous waiver decisions are fully 

consistent with MEMA I, which 

indicates that the cost of compliance 

must reach a very high level before the 

EPA can deny a waiver. Therefore, past 

decisions indicate that the costs must be 

excessive to find that California’s 

standards are inconsistent with section 

202(a).152 It should be noted that, as 

with other issues related to the 

determination of consistency with 

section 202(a), the burden of proof 

regarding the cost issue falls upon the 

opponents of the grant of the waiver. 

Consistent with MEMA I, the Agency 

has evaluated costs in the waiver and 

authorization context by looking at the 

actual cost of compliance in the time 

provided by the regulation, not the 

regulation’s cost-effectiveness. The 

appropriate level of cost-effectiveness 

for any given California regulation is a 

policy decision that state regulators 

must consider in adopting the 

regulation. EPA, historically, has 

deferred to these policy decisions. EPA 

has stated in this regard, ‘‘the law makes 

it clear that the waiver request cannot be 

denied unless the specific findings 

designated in the statute can 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 * * *.’’ 153 Thus, although 

EPA may evaluate whether compliance 

costs to manufacturers (or in this case, 

fleet operators) are so excessive as to 

implicate the regulation’s technological 

feasibility, EPA does not look at costeffectiveness when making a waiver 

decision. 

In evaluating the Fleet Requirements’ 

consistency with section 202(a), EPA 

finds that CARB provided a series of 

flexibilities in order to address concerns 

expressed by some about cost and costeffectiveness. CARB, in its 

Authorization Request, notes that 

section 2449.1 of its 2010 amendments, 

requires all fleets to comply with annual 

fleet average emission targets or, 

alternatively, meet the annual BACT 

requirements for specified percentages 

of the fleet. The fleet average targets, 

CARB states, have been set to 

progressively become more stringent 

over the years to ensure that fleets 

modernize to achieve the necessary 

emission reductions for California to 

meet the federal NAAQS for NOX and 

PM2.5 and to meet its 2020 goal set forth 

in CARB’s 2000 Diesel Risk Reduction 

Plan.154

CARB notes that to meet the fleet 

average targets or the alternative BACT 

requirements, a large or medium fleet 

may comply by using a variety of 

different strategies, including: replacing 

the engines in existing vehicles with 

cleaner engines, purchasing newer 

vehicles with cleaner engines to replace 

older, higher emitting vehicles, retiring 

vehicles from service, designating 

vehicles as permanent low use, or 

retrofitting engines with verified diesel 

emission control strategies (VDECS). 

Compliance with the amended 

regulation will require most large and 

medium fleets to phase-out use of Tier 

0 and Tier 1 engines through 

replacement or repowering of vehicles, 

but CARB also notes that fleets will be 

able to meet the fleet average targets by 

replacing such vehicles and engines 

with a combination of higher-tiered 

engines. Therefore, it is not until 2018 

that the regulation actually requires 

large and medium fleets to replace 

vehicles and engines with only Tier 3 

and 4 engines. 

CARB states that by 2018, Tier 3 

engines will have been available for at 

least ten years, Interim Tier 4 engines 

for at least seven years, and Tier 4 

engines for at least three years. In 

addition, CARB notes that the Fleet 

Requirements provide relief to fleets if 

there is a delay in the availability of 

vehicles that would be required to use 

Tier 3, Tier 4 interim, or final Tier 4 

emission standards. Therefore, CARB 

notes, it is anticipated that large and 

medium fleet owners with high natural 

turnover of vehicles will be able to meet 

the fleet average targets through normal 

replacement and repowering of vehicles. 

Fleets may also choose to meet the 

BACT fleet average requirements by 

either installing retrofits, or by 

modernizing the fleet by turning over 

older, dirtier engines and vehicles to 

newer (not necessarily new) and cleaner 

models; by retiring older vehicles or 

designating them as low use; or by using 

the other exemptions, compliance 

extensions, and credit provisions. 

Additionally, CARB explains that the 

2010 amendments provide even further 

flexibility and relief for the smaller 

fleets, including, but not limited to, an 

additional five year delay in the 

implementation date (2019) of the fleet 

average targets beyond that applicable to 

large fleets, a variety of exemptions from 

the BACT requirements including an 

exemption if the vehicle is less than ten 

years old, or if the vehicle has already 

been retrofitted with a level 2 or 3 

VDECS that was the highest level PM 

VDECS at the time of installation, etc. 

The 2010 amendments also included a 

new compliance path for small fleets 

whereby such fleets could comply by 

phasing out their Tier 0 and Tier 1 

vehicles between 2019 and 2029—and if 

they meet such compliance targets for a 

specific year then no other compliance 

requirements would apply. 

EPA received multiple comments 

regarding the cost of the CARB Fleet 

Requirements. The comments address 

both the cost to fleet operators and costeffectiveness of the regulations. Almost 

all of the comments argue that 

authorization should be denied because 

of the high compliance costs for fleet 

operators. The comments claim that 

these costs are excessive for an industry 

characterized by small, independent 

companies, and they claim that many 

will be forced out of business by the 

cost of compliance with the Fleet 

Requirements. EPA also received 

comments on other aspects of 

technological feasibility including 

technology availability and safety 

issues. A detailed discussion of these 

comments is presented below. 

EPA received comment from a variety 

of contractors and associations claiming 

that while the nation and California 

continue to experience a sluggish 

economic recovery, employment in the 

construction sector has continued to 

decline. As a result, these commenters 

argue, the market is less prepared to 

handle the Fleet Requirements than 

even before the 2010 amendments. 

EPA also received a variety of 

comments stating that the Fleet 

Requirements require the use of new 

equipment that might not be available 

for purchase until 2014 or later. In this 

context, one commenter noted that, 

where technology is available, a sudden 

increase in demand could cause 

supplies to be exhausted and that 

contractors may be barred from their 

work if they are not able to make 

necessary purchases. As such, the 

commenter argues that CARB must 

allow technology to catch up to the 

point that compliant equipment is 

broadly available. The comment states 

that without a period for technology to 

catch up, contractors will be unable to 

meet the Fleet Requirements, triggering 

negative impacts on California’s 

infrastructure rebuilding efforts, the 

health of the state’s construction 

industry, and its overall economy. 

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155California Construction Trucking Association 

(CCTA). 

156To the extent that the ‘‘need’’ for the Fleet 

Requirements to meet California’s air quality goals 

is relevant to EPA’s consideration of CARB’s 

authorization request we examine this under the 

second authorization criterion of section 

209(e)(2)(ii) above. 

157ARTBA and Allfishch Contractors. 

158United Contractors. 

159See CIACQ. 160See United Contractors. 

Similarly, EPA received comment that 

the eventual elimination of Tier 0 and 

Tier 1 equipment has significantly 

diminished the resale value of such 

equipment and, combined with the 

recession in California, has forced the 

sale of this older equipment to out-ofstate contractors. The commenter claims 

that this has caused a reduction in the 

size of the fleet and has probably 

eliminated up to 15,000 jobs in 

California and has also diminished the 

bonding capacity of contractors 

(equipment is used as collateral) and 

severely limited the size and number of 

construction projects which a contractor 

could undertake. 

EPA also received a number of 

comments suggesting that the larger 

fleet companies may fare better than the 

smaller companies in terms of 

compliance with the Fleet 

Requirements. One commenter noted 

that larger companies have already 

begun the process of repowering or 

retrofitting their equipment: however 

the smaller companies (less than 10 

employees) will be severely hampered 

by the costs of repowering or retrofitting 

equipment that, in some cases, is the 

sole asset of their family-owned 

businesses. Commenters asserted that 

many of these smaller companies do not 

have the resources or access to capital 

to repower or retrofit their engines and 

may be forced to park the equipment. 

Due to the annual emission reduction 

targets required by the Fleet 

Requirements, these commenters argue, 

many contractors will be required to 

first repower or retrofit an engine, only 

to have to turn around a few years later 

and replace the entire piece of 

equipment when the technology to do 

the job right finally hits the 

marketplace. 

Another commenter maintains that 

the ongoing economic recession in 

conjunction with CARB’s ‘‘draconian set 

of diesel regulations that denies normal 

industry replacement cycles’’ has placed 

many businesses in a ‘‘catch-22’’ 

situation.155 Many businesses face 

having to replace and/or modify both 

on-road and off-road diesel powered 

equipment, yet the net effect of CARB’s 

regulations has been to devalue their 

current equipment to the point they 

have lost equity necessary to secure 

financing. To the extent they may secure 

financing, the comment states, many 

could not secure enough work to satisfy 

a mortgage obligation. 

EPA also received comment stating 

that regardless of whether EPA 

reconsiders its ‘‘case-by-case’’ 

implementation of section 209 waivers 

by revisiting what it means for 

California to need this regulation to 

meet its air quality goals,156 the Fleet 

Requirements still suffer from gross 

inefficiencies, amortized over a smallerthan-expected market, for smaller-thanexpected gains which should defeat the 

authorization as inconsistent with 

section 202(a), including technological 

feasibility, the cost of compliance, 

safety, and lead time. 

EPA received a variety of comments 

concerning the reliability and safety of 

diesel retrofits. One commenter noted 

that the California Occupational Health 

and Safety Board has established safety 

standards for installation and operation 

of the retrofits.157 Another commenter 

noted that attempts to meet emission 

levels by using filtering equipment have 

failed—to the extent that the 2010 

amendments eliminated the retrofit 

requirement altogether and made diesel 

particulate filters (DPFs) voluntary only, 

due to limitations in safety, reliability, 

and functionality.158

In addition to the concerns about 

retrofits noted above, EPA also received 

comment questioning whether EPA’s 

regulation for replacement engines has 

eliminated fleets’ ability to choose 

engine replacement or repower 

compliance strategies, which the 

commenter claimed to be the only cost 

effective means to achieve the fleet 

average emission standards. This 

commenter noted that one compliance 

option is to replace equipment with the 

newest equipment available but that this 

is impractical for most contractors due 

to the cost of new equipment. For 

example, a new scraper or bulldozer can 

cost over $1,000,000. The second option 

is to repower an older machine with a 

new engine (replacing a Tier 0 engine 

with a Tier 3 engine with a cost of 

$150,000 or more). The commenter 

suggested this second option is far more 

practical as the equipment is designed 

to last for 30 years or more. The 

commenter contends that EPA’s 

replacement engine regulation at 40 CFR 

1068.240 prohibits the repowering of a 

machine unless the engine has 

‘‘prematurely failed.’’ This roadblock 

makes compliance impossible according 

to the commenter.159

EPA also received comment stating 

that attempts to repower or replace 

existing older engines with newer, 

cleaner technology have encountered 

the practical issue of compatibility. 

‘‘The new engines either don’t fit the 

old chassis, or require additional 

alterations or replacement of other 

systems (such as cooling units) in the 

old unit. Thus, cost-effectiveness of 

modifying such older units becomes 

problematical.’’ 160 This commenter 

does not note the availability of retrofit, 

but instead noted that the alternative to 

repower is retirement and replacement. 

Finally, EPA received a number of 

comments suggesting that the Fleet 

Requirements are generally not costeffective, given the makeup of the 

current fleet. 

EPA received comment in favor of 

CARB’s Authorization Request from the 

Manufacturers of Emission Control 

Association (MECA), which supported 

CARB’s original 2007 rule, and 

continues to support the current rule 

while requesting that EPA grant this 

authorization. MECA contends that a 

number of advanced emission control 

technologies already exist with the 

capability to significantly reduce PM 

and NOX emissions from the engines 

subject to CARB’s regulation, and that 

over 250,000 systems (retrofits) have 

been installed on off-road engines 

worldwide. MECA also disputes safety 

concerns surrounding these systems, 

citing statistics that 35,000 diesel 

particulate filters have been installed in 

California, with fewer than 15 safetyrelated issues, all of which ‘‘were shown 

to be attributed to poor engine or device 

maintenance, misapplication of devices, 

or the ignoring of warning alarms by the 

operator.’’ MECA does not support the 

implementation delays built into the 

CARB’s 2010 amendments, but 

nonetheless asks EPA to grant the 

request. 

In response to comments from 

opponents of the authorization, CARB 

states that the opponents have not met 

their burden of showing that the 

regulation is inconsistent with section 

209(b)(1)(C). CARB continues to rely 

upon the information presented in its 

Authorization Request and earlier 

submissions and maintains that 

California has amply demonstrated that 

the performance standards of the 

regulation are technologically feasible in 

the lead time provided, giving 

appropriate consideration to costs. 

CARB states that its position that the 

feasibility of the performance standards 

of the regulation are amply 

demonstrated is consistent with past 

EPA authorizations for in-use vehicles 

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161CARB Written Comments at 15, citing to the 

Hearing Transcript at p. 87. AGC noted that 

California’s construction contractors invested 

enormous sums in the equipment in the reasonable 

expectation that they could lawfully operate and 

use it for the duration of its useful life. AGC also 

noted, anecdotally, that contractor defaults in 2012 

will be higher than in any of the previous three 

years and thus EPA’s review of CARB’s most recent 

amendments is of interest and concern to AGC’s 

members. AGC had requested EPA to delay prior 

proceedings on California’s Fleet Requirements 

given ongoing announced plans by CARB to revisit 

at least portions of CARB’s rule. AGC had been 

deeply concerned about the costs and other 

estimates CARB had made, about the technology 

that contractors would require to comply, and the 

lead time provided. AGC noted at EPA’s 

authorization hearing that ‘‘reasonable people may 

disagree about whether the rule merits federal 

approval, but AGC is not prepared to dispute a 

resolution that goes either way.’’ ‘‘At the time [of 

the 2010 amendments], from our members in 

California [AGC members], . . ., the costs of the 

amended rule were considered reasonable. We 

would not have agreed to that package of 

amendments . . . if they were not considered to be 

reasonable.’’ 

162Title 13, CCR, section 2449.1(b)(3)(C). 

163See 75 FR 8056, 8060 (February 23, 2010). 

164See CARB Mail Out # MSC 13–07 (March 11, 

2013), see also CARB Supplemental Comments. 

and equipment, in which EPA has 

stated: 

[S]ection 202(a) consistency calls for a 

limited review of technological feasibility, 

including analysis of the cost of new 

technology, if technology does not currently 

exist. Section 202(a) does not allow EPA to 

conduct a more searching review of whether 

the costs are outweighed by the overall 

benefits of the California regulations. 

CARB notes that the costs of the 

regulation, which was amended for the 

express purpose of providing fleets with 

significant economic relief during the 

recovery from the nation’s economic 

downturn, cannot be characterized as so 

prohibitive as to render the regulation 

infeasible. In fact, CARB notes the 2010 

amendments have significantly reduced 

the costs of compliance for all fleets by 

reducing the number of specific 

compliance actions that a fleet must 

undertake: 

By delaying initial implementation of the 

regulation, revising target and BACT 

compliance rates downward, and by 

providing fleets with greater compliance 

flexibility (vehicle exemptions, compliance 

extensions, and special credits), between 

2010 and 2015, the costs for large fleets will 

be reduced by approximately 97 percent, 

from over $1 billion to approximately $33 

million (2010 dollars). Total costs over the 

life of the off-road regulation would be 

reduced by approximately 72 percent, which 

represents a cost savings of over $1.5 billion 

(2010 dollars). Peak year costs would be 

postponed from 2013 to 2019 and reduced 

almost 73 percent, from $542 million to $146 

million (2010 dollars). 

With the amendments, CARB 

maintains fleets are in a better position 

today to effectively pass on the reduced 

amortized costs of the regulation to their 

customers. 

CARB references the testimony of 

AGC at EPA’s public hearing which 

characterized the regulation’s cost as 

reasonable.161

CARB also notes, that to the extent 

that some companies may be more 

adversely impacted than others, CARB 

had previously stated in its 

authorization request: 

The costs to fleets for compliance varies 

dramatically, depending upon the size of the 

fleet, the type of vehicles and equipment 

used by the fleet, the age of the vehicles in 

the fleet, the fleet’s normal fleet replacement 

practices, and the compliance pathway 

chosen. Regarding the last variable, fleets 

have wide discretion on how they choose to 

comply; which vehicles should be controlled 

first, should a [verified diesel emission 

control strategy] VDECS be installed, or 

should the vehicle or engine be turned over. 

If turnover is selected, does the fleet choose 

to rebuild a vehicle’s existing engine, report 

the engine with a newer, cleaner engine, 

replace the older vehicle with a newer 

vehicle with a cleaner engine, etc; does the 

fleet elect to designate a vehicle as low use. 

Each of these decisions will determine the 

actual compliance costs for the fleet. 

In the context of responding to fleet 

contractors who may have the financial 

inability to meet the compliance costs, 

CARB states that EPA has previously 

addressed this general issue in a 

separate proceeding: 

Regarding small businesses, the OwnerOperator Independent Drivers Association 

(OOIDA) commented that the transport 

refrigeration units (TRU) air toxic control 

measure (ATCM) places a ‘‘particularly 

onerous financial burden on small business 

truckers’’ with small fleets (20 or fewer 

trucks) making up 95% of the industry . . .. 

EPA believes that the CARB regulations are 

feasible with respect to cost objectively; i.e., 

all fleet operators face the same cost per unit 

to comply. While this cost may have different 

impacts on fleets of varying sizes, EPA 

recognizes that it is up to CARB to choose 

who it will regulate under its standards. 

Because these TRU engines do emit 

significant amount of pollution and the cost 

of compliance are not so large as to render 

the compliance options objectively out-ofreach, the fact that some operators may have 

difficulties with the cost of the program does 

not make the Program infeasible. 

CARB notes that EPA’s previous 

statements regarding feasibility with 

regard to analyzing cost objectively and 

CARB’s discretion to choose who and 

how it may regulate under its standards 

also holds true for its Fleet 

Requirements. CARB notes that in the 

context of the Fleet Requirements the 

technology itself is feasible and has not 

been questioned; and that the objective 

costs of the regulation—as conceded by 

some members of industry—are 

reasonable. 

With regard to ARTBA and other 

commenters’ contention that small 

companies will be severely affected by 

the Fleet Requirements because of the 

costs of repowering and retrofitting 

vehicles and that these companies do 

not have the resources to comply, CARB 

states that this overlooks the fact that 

the amended regulations have 

significantly reduced the costs of 

compliance and have extended the date 

of compliance along with a variety of 

compliance options. CARB notes that 

the total costs of compliance of the 

regulation have been reduced by 

approximately 72 percent. In addition, 

the compliance costs for smaller fleets 

are lower than the costs for larger fleets 

in that small fleets are exempted from 

having to turnover vehicles to meet the 

regulation’s BACT requirements.162

CARB also addressed the issue of 

whether its new engine replacement 

provisions are inconsistent with EPA’s 

regulations and therefore not a feasible 

compliance path for fleet operators in 

California. As CARB notes, and CIAQC’s 

comments maintain, repowering under 

CARB’s existing regulatory authority 

pertaining to new nonroad CI engine 

regulations is, in many instances, 

technologically feasible at a 

significantly lower cost than replacing 

an older vehicle with a new one. CARB 

acknowledges that repowering is not 

possible in all circumstances but 

nevertheless is often a cost-effective 

option for older equipment and 

vehicles. CARB references comment 

from Altfillisch, as one example, that it 

has been able to repower at least 71 

nonroad vehicles and equipment 

between 2001 and 2005, years before the 

Fleet Requirements went into effect. 

With respect to whether EPA’s 

replacement engine regulations are 

inconsistent with CARB’s replacement 

engine regulations, CARB notes that 

EPA has previously authorized the 

CARB nonroad CI emission standards 

applicable to new engines and 

equipment which included CARB’s 

replacement engine regulations.163

Therefore California fleet operators are 

subject to CARB’s replacement engine 

regulations which substitute for EPA’s 

replacement engine provisions in 

California.164

In response to concerns that the Fleet 

Requirements are not technically 

feasible due to the unavailability of Tier 

4 engines, CARB references its March 1, 

2012 Authorization Request wherein it 

states: 

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165CARB Written Comments at 17. 

166 Id. at 17–18. 

167 40 FR 23102, 23103 (May 28, 1975); see also 

78 FR 2112 (January 9, 2013). 

168See http://www.epa.gov/otaq/climate/

documents/420f13001.pdf, and http://

www.gpo.gov/fdsys/pkg/FR-2013-06-17/pdf/2013- 

11980.pdf. The EPA received adverse comment on 

a portion of the Direct Final Rule, but no 

commenter objected to the provision allowing 

repowering using engines that are not certified to 

the most stringent standards. 

It is not until 2018 that the regulation 

requires large and medium fleets to replace 

vehicles and engines with only Tier 3 and 

Tier 4 engines. By 2018, Tier 3 engines will 

have been available for at least ten years, 

Interim Tier 4 engines for at least 7 years, and 

Tier 4 engines for at least 3 years. 

Additionally, the regulation provides relief to 

fleets if there is a delay in availability of 

vehicles that would be required to use Tier 

3 or Tier 4 interim of final Tier 4 emission 

standards. 

CARB noted that there is no basis to 

ARTBA’s conjecture regarding Tier 4 

engine unavailability during the 

applicable time frame.165

Finally, with respect to the 

compliance option of VDECS or 

retrofits, CARB’s supplemental 

comments clarify that the regulation 

never required unsafe retrofits to be 

installed, and retrofit safety is even less 

of a concern since the regulation, as 

amended, removes all mandatory 

installation of VDECS. CARB explains 

that the regulation, as initially adopted, 

only required retrofit of a specified 

percentage of vehicles if the fleet 

operator could not meet the PM fleet 

average targets. The amendments have 

since removed this requirement and, in 

addition, the California Occupational 

Health Standards Safety Board (OSHSB) 

has adopted amendments to its 

construction safety orders (after working 

with CARB) to ensure that any retrofit 

will not affect the capacity, structural 

integrity, or safe performance of the 

vehicle in which it is installed nor 

create a risk of fire or operator contact 

with the exhaust system or impair the 

vision of the operator. CARB’s 2010 

amendments to the Fleet Requirements 

continue to provide that no VDECS are 

required to be installed if in violation of 

the amended OSHSB safety order and, 

as noted above, there is no longer a 

mandate that a specified percentage of 

vehicles be retrofitted if the fleet average 

is not met.166

As explained below, EPA agrees with 

CARB’s presentation of how 

technological feasibility should be 

evaluated, for purposes of authorization 

review by EPA, and that CARB has 

provided ample evidence of the 

feasibility of the Fleet Requirements 

overall, and the feasibility with respect 

to individual compliance options. CARB 

has presented appropriate evidence of 

the feasibility and availability of new 

nonroad CI engines along with 

appropriate replacement engines and 

retrofits. 

CARB has also properly set forth the 

role of EPA in reviewing California inuse performance standards which 

require legacy fleets to achieve 

challenging emission reductions. EPA is 

not setting its own standards under 

section 202(a) of the Clean Air Act, 

rather EPA’s role within its 

authorization review is more limited 

and takes place in the context of 

deference that Congress envisioned for 

California. This deference was 

discussed in an early waiver decision 

when EPA approved the waiver request 

for California’s 1977 model year 

standards: 

Even on this issue of technological 

feasibility 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 to 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 to 

automotive emission control might be 

attended with costs, in the shape of a 

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 judgement on that score.167

CARB has set forth a series of 

compliance options to address 

emissions from its legacy fleet of NR CI 

engines. Fleet operators may choose 

from these compliance options. As 

explained below, EPA does not believe 

those opposing these regulations have 

met their burden of showing that the 

regulations are not technologically 

feasible. 

Further, while EPA acknowledges the 

comments it has received that claim that 

the Fleet Requirements may have 

significant adverse economic affect on 

individual fleet operators, the Agency 

finds no factual basis for determining 

that the Fleet Requirements are 

objectively cost prohibitive. To the 

extent that a balancing of risks attendant 

with adverse effect on some fleet 

operators against the benefits of 

addressing the emission inventory 

associated with the legacy fleet in 

California, EPA gives that the same 

substantial deference (as with past 

waivers) to California’s judgment 

regarding the balancing of the risks and 

costs of regulation against the potential 

benefits from reduced emissions. CARB 

has gone through several significant 

rounds of amendments to address in 

part the economic cost associated with 

the Fleet Requirements and has afforded 

the fleet operators a significant number 

of compliance options and delays in 

initial compliance in order to 

objectively address the risks associated 

with costs. 

At the outset, EPA believes it 

important to note that we agree with 

CARB’s assessment that the Fleet 

Requirements will be feasible given the 

technology available today along with 

the technologies that CARB projects to 

be available in the lead time provided. 

First, several commenters noted their 

concern that one of the more cost 

effective compliance options, the 

replacement of engines or repowering, is 

precluded as it conflicts with EPA’s 

engine replacement policy at 40 CFR 

1068.240. EPA has previously 

authorized CARB’s emission standards 

applicable to new NR CI engines and the 

regulations in that authorization 

included CARB’s replacement engine 

provisions. Therefore, CARB’s 

replacement engine provisions, not 

EPA’s provisions, are the applicable 

provisions for the purposes of these 

Fleet Requirements. In addition, EPA 

has recently published a direct final rule 

and accompanying notice of proposed 

rulemaking that adopts modifications to 

the Agency’s replacement engine 

provisions to allow, on a limited basis, 

the practice of replacing engines with 

engines that are cleaner, but not 

certified to the most stringent standards, 

even where the original engines have 

not failed prematurely.168 Therefore, 

EPA’s replacement engine provisions do 

not prevent use of repowering as a 

method of complying with CARB’s 

regulations. 

Second, with respect to fleet operators 

choosing to replace their equipment 

with new cleaner vehicles and 

commenters questioning the availability 

of such vehicles (e.g., Tier 3, interim 

Tier 4, and Tier 4), EPA notes that these 

standards have already been reviewed 

by EPA in the context of its own 

rulemakings, and EPA has found these 

standards to be feasible in a timeframe 

allowing even less lead time than that 

provided by California. EPA annually 

certifies new NR CI engines and the 

certification data to date strongly 

suggest that engine manufacturers are 

certifying to meet the newest applicable 

standards, and that these standards are 

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169http://www.epa.gov/otaq/certdata.htm#nrci. 

170CARB Supplemental Comments at 17–18. 

171 Id. 

172MECA at 4. ‘‘Regarding the safe installation of 

retrofit devices, retrofit manufacturers have shown 

that off-road retrofits can be installed to comply 

with the Cal/OSHA retrofit visibility/safety 

requirements finalized last year. Retrofit 

manufacturers are using the best engineering 

judgment and installation practices to ensure the 

safe installation of devices. In general, retrofit 

installations in California have had an excellent 

safety record. 

173Authorization Request at 24. See also EPA’s 

list of currently verified technologies at: http://

www.epa.gov/cleandiesel/verification/verif-list.htm, 

and generally: http://www.epa.gov/cleandiesel/

technologies/. 

feasible.169 EPA believes CARB is 

reasonable in its depiction of currently 

available emission control technology 

and with its projection of sufficient lead 

time being available to ensure that a 

sufficient supply of newer emission 

control technologies (meeting newer 

Tier 3, and interim and final Tier 4 

emission standards) is in place to meet 

the demands of fleet operators. As 

CARB notes, the comments contending 

otherwise have not provided any 

evidence that in 2018 large and 

medium-sized fleet operators will not be 

able to replace vehicles and engines 

with Tier 3 and Tier 4 engines. In 

addition, to the extent a fleet operator 

replaces such vehicles and engines, 

CARB’s Fleet Requirements also provide 

relief to fleets if there is a delay in 

availability of vehicles that would be 

required to use Tier 3 or Tier 4 interim 

or final Tier 4 emission standards. 

Finally, there is no evidence in the 

record indicating a shortage of certified 

engines during the time frame for which 

they will be needed for this rule, given 

the flexibilities provided by the 

amendments. The opponents of the 

waiver have not met their burden of 

proof to demonstrate the lack of 

commercial availability of appropriate 

engines to the extent that the regulations 

would be infeasible. 

Third, with respect to the technical 

feasibility of exhaust retrofits (VDECS) 

and the safety-related and compatibility 

concerns expressed by commenters, 

EPA believes that CARB’s 2010 

amendments add both the needed 

flexibility, with respect to not 

mandating retrofits, and sufficiently 

clarify when a NR CI vehicle is 

exempted due to expressed safety 

concerns. The Fleet Requirements never 

required unsafe retrofits be installed, 

and retrofit safety is even less of a 

concern now that the regulation has 

been amended to remove all mandatory 

installation of VDECS, even if fleet 

average targets are not met.170 EPA 

believes that CARB has also 

appropriately addressed expressed 

concerns regarding retrofit safety, 

including referencing the amendments 

adopted by OSHSB. These amendments, 

adopted in March 2012, state that a 

safety order will be provided in order to 

ensure that a retrofitted VDECS shall not 

affect the capacity, structural integrity, 

and safe performance of the vehicle in 

which it is installed nor create a fire or 

safety risk or impair the operators’ 

vision.171 EPA also notes that the CARB 

staff reviewed retrofit field experience 

since 2002. Of the 35,000 diesel 

particulate filters (DPFs) deployed in 

the state, less than 15 safety-related 

issues were identified and all of these 

were shown to be attributed to poor 

engine or device maintenance, 

misapplication of devices, or the 

ignoring of warning alarms by the 

operator.172 With regard to the 

availability of VDECS in general, there 

is no evidence in the record to refute 

CARB’s view that the Fleet 

Requirements are likely to continue to 

increase the demand for retrofits and 

that CARB’s anticipation that an 

increase in supply will occur as 

compliance deadlines approach is 

reasonable. CARB has identified a 

number of verified Level 3 VDECS and 

the commenters have not shown that 

this option does not provide a feasible 

alternative in many cases to meeting the 

Fleet Requirements.173

EPA also believes it important to note 

that CARB’s fleet average targets have 

been set so that they progressively 

become more stringent over the years in 

order that CARB’s emission reductions 

goals are met while affording fleet 

operators with necessary flexibility and 

compliance options. In addition, 

CARB’s four-year delay in compliance 

(from 2010 to 2014) helps ensure the 

feasibility of the regulation along with 

built-in provisions that ensure against 

noncompliance with the Fleet 

Requirements due to the unavailability 

of the highest tiered engines or VDECS. 

In addition, CARB’s BACT credits 

compliance path includes a number of 

accommodations (e.g. accrual of credits 

earned prior to March 1, 2010 may in 

certain circumstances be applied toward 

a large fleets’ January 1, 2014 

compliance deadline; double credits for 

early installation of VDECS; credit for 

reduced horsepower of the fleet, etc). 

There are also a number of exemptions 

under the BACT requirements 

applicable to large and medium fleets, 

and separately for small fleets. For 

example, vehicles in any size fleet are 

exempt from the BACT credit 

requirement calculation if on any given 

annual compliance date the vehicle is 

less than ten years old from the date of 

manufacture, and specialty vehicles are 

exempt if the fleet has applied BACT to 

all other vehicles in the fleet and no 

engine is available to repower the 

specialty vehicle and instead has the 

highest level VDECS available installed. 

In addition, for large and medium fleets, 

a vehicle is exempt if it had a Level 2 

or 3 p.m. VDECS installed within the 

last six years and for small fleets the 

vehicle is exempt if has already been 

retrofitted with a Level 2 or 3 VDECS 

that was the highest level PM VDECS 

available at the time of installation. 

Regarding the claim that the regulations 

require an initial repower or retrofit and 

then a replacement of an entire piece of 

equipment shortly thereafter, CARB’s 

2010 amendments also provide an 

exemption for vehicles that have had a 

level 2 or 3 p.m. VDECS installed within 

the last six years and an exemption for 

original equipment manufacturer diesel 

PM equipped vehicles and, with certain 

limitations, to vehicles that installed 

highest level VDECS prior to 2013. 

These further accommodations help 

assure the feasibility of the Fleet 

Requirements. 

Although certain fleet operators 

contend that their business will either 

be severely or irreparably harmed (as 

reviewed further below), the 

commenters opposing the authorization 

have not provided any factual evidence 

in the record to demonstrate that a mix 

of available compliance options and 

flexibilities is not feasible. 

EPA believes that CARB has afforded 

a variety of compliance options (and 

initial delays of the phase-in periods for 

compliance) that individual fleet 

operators can employ in a variety of 

ways depending on the nature of their 

business and the composition of their 

fleets. Accordingly, with regard to the 

consideration of cost of the Fleet 

Requirements (including comments that 

the regulation will diminish the net 

value of certain fleet operators which 

will further impair their ability to 

finance the upgrades necessary to 

comply with the regulation or to obtain 

construction bonds), we note at the 

outset that many factors affect the 

ability of certain fleet operators to meet 

the Fleet Requirements. While it is 

possible that some diminishment in 

value of certain fleet operator 

equipment will occur as a result of the 

Fleet Requirements (while recognizing 

that CARB has significantly delayed the 

requirement that such engines be 

replaced), there is no evidence or data 

in the record to demonstrate that the 

loss in value to the fleet operator is the 

proximate cause of such operations 

going out of business or that such 

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174Regarding comments that these regulations 

would stop valuable work to be performed by this 

industry in California, there is no evidence that this 

rule has led to the widespread cancelation of 

projects. 

175CARB notes that the increased costs, due to 

the Fleet Requirements, to small fleet operators is 

on the magnitude of $38,000 for the youngest fleets 

to $173,000 for the oldest fleets (cite) and such costs 

have not been countered by opponents of the 

authorization. 

176EPA has previously stated that it is up to 

CARB to choose who it will regulate under its 

standards, even though such costs may have 

differing impacts for different fleets. See 74 FR 3030 

(January 16, 2009), TRU Decision Document at 63. 

177CARB’s Authorization Request at 25. CARB 

notes that small fleets are expected to be able to 

fully comply with the regulation if it routinely turns 

over its vehicles and equipment and meet the 

emission target rates and have little or no 

compliance costs associated with the regulation. To 

the extent normal turnover is insufficient, CARB 

notes small fleets are expected to comply through 

installation of VDECS (If a small fleet cannot be 

retrofitted with a VDECS that vehicle is exempt 

from the BACT requirements, including turnover), 

by exercising the special option for fleets with less 

than 500 total horsepower, designating vehicles as 

low-use, and by exercising the small fleet vehicle 

exemptions along various other exemptions, credits, 

etc. 

178 Id., citing 58 FR 4166 (January 7, 1993), 

Decision Document at 20 [‘‘Since a balancing of 

these . . . costs against the potential benefits from 

reduced emissions is a central policy decision [of 

CARB is adopting the regulation] I believe I am 

required to give very substantial deference to 

California’s judgments on this score.’’]. 

179See, e.g., 43 FR 32182 (July 25, 1978). 

180CARB Authorization Request at 28. 

economic results render the Fleet 

Requirements infeasible for the broader 

regulated community. EPA believes that 

CARB has reasonably responded to 

concerns expressed about the costs of 

the Fleet Requirements, including the 

availability of engine replacements and 

retrofits. EPA notes that even some 

commenters otherwise opposed to the 

authorization have recognized the 

feasibility of early engine replacement. 

In addition, there is no evidence in the 

record to reflect a widespread or 

significant economic disruption to 

regulated fleet operators that is 

proximately caused by the Fleet 

Requirements.174

More importantly, EPA believes that 

the CARB regulations are feasible with 

respect to cost objectively; i.e., although 

fleets are likely to be comprised 

differently, all fleet operators are 

nevertheless facing the same cost per 

unit to comply. While this cost may 

have different impacts on fleets of 

varying sizes, EPA recognizes that it is 

up to CARB to choose who it will 

regulate under its standards.175 The fact 

that some operators may have 

difficulties with the cost of the program 

does not make the program 

infeasible.176

In addition, under the guidelines of 

MEMA I, EPA believes that it should 

evaluate costs in authorization requests 

by looking at the actual costs of 

compliance in terms of the lead time 

provided by the regulations, and not at 

the regulation’s cost-effectiveness. It is 

CARB’s responsibility to determine the 

best way to reduce emissions in its state, 

and EPA does not reevaluate 

California’s policy decisions in deciding 

whether to grant authorization, as long 

as, pursuant to section 209(e), the 

regulations can be met without making 

the costs prohibitive. The comments 

received regarding cost-effectiveness do 

not show that the costs for fleet 

operators generally will be prohibitive. 

California’s estimates of the costs of the 

regulation are reasonable and CARB has 

rebutted the argument that small fleet 

operators in general will not be able to 

meet the requirements.177 EPA also 

agrees with CARB’s statement that EPA 

has long deferred to California’s policy 

judgments associated with costeffectiveness ‘‘EPA will not look into 

the question of cost-effectiveness—that 

is, whether the overall benefits of the 

regulation are outweighed by the 

regulation’s costs of compliance.’’ 178

Consequently, based on the record, EPA 

is unable to make the finding that the 

Fleet Requirements are not 

technologically feasible with the 

available lead time giving consideration 

to the cost of compliance. 

b. Consistency of Certification 

Procedures 

California’s standards and 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if the California test procedures 

were to impose certification 

requirements inconsistent with the 

federal certification requirements. Such 

inconsistency would mean that 

manufacturers would be unable to meet 

both the California and federal testing 

requirements using the same test vehicle 

or engine.179 CARB presents that the 

Fleet Requirements raise no issue 

regarding incompatibility of California 

and federal test procedures. ‘‘There is 

no requirement on engine 

manufacturers or fleet owners to certify 

engines beyond existing federal and 

state certification testing for new 

engines. Additionally, there are no 

conflicts between federal and California 

test procedures for verification testing 

for diesel emission control strategies in 

that there is no comparable mandatory 

federal program.’’ 180 EPA received no 

comments suggesting that CARB’s Fleet 

Requirements pose any test procedure 

consistency problem. Therefore, based 

on the record, EPA cannot find that 

CARB’s testing procedures are 

inconsistent with section 202(a) and 

cannot deny CARB’s request based on 

this criterion. 

D. Additional Issues Raised in Comment 

EPA received a series of comments on 

grounds other than those specified in 

section 209(e)(2)(A) of the Act. These 

comments include several 

administrative concerns including the 

lack of a public hearing in California 

and a request to reopen the public 

comment period (and to stay the 

issuance of a final EPA decision). We 

also received a number of comments 

objecting to the authorization based on 

other federal law or constitutional 

claims. As set forth below, EPA has 

complied with all relevant 

administrative process requirements for 

this proceeding and none of the 

comments described above provide any 

basis for denying CARB’s Authorization 

Request. 

1. Request for a Public Hearing in 

California 

EPA received comment during the 

course of the public comment period 

associated with EPA’s August 12, 2012 

Federal Register notice requesting that 

EPA conduct a public hearing or 

hearings in California in order for those 

affected by CARB’s regulation, the fleet 

operators, to be directly heard and for 

those unable to travel to Washington, 

DC be afforded the opportunity to 

express their concerns to EPA. 

Section 209(e)(2)(A) states in part that 

‘‘. . . the Administrator shall, after 

notice and opportunity for public 

hearing, authorize California to adopt 

and enforce standards and other 

requirements relating to the control of 

emissions from such nonroad vehicles 

or engines . . . .’’ EPA’s process for 

providing an opportunity for public 

comment on the CARB Fleet 

Requirements was consistent with the 

normal process EPA applies in response 

to this language. EPA has consistently 

announced in the Federal Register the 

opportunity for a public hearing for any 

authorization request received from 

CARB. As a general matter EPA has also 

offered an opportunity for written 

comment which has opened on the date 

of the Federal Register notice and 

closed on a date after the public hearing. 

As part of EPA’s public hearings, the 

presiding officer has consistently stated 

that the hearing was being conducted in 

accordance with section 209(e) of the 

Clean Air Act and that any interested 

parties have the opportunity to present 

both oral testimony and written 

comments. While EPA occasionally has 

held hearings in California, the vast 

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181As explained in EPA’s July 2009 GHG waiver 

decision, EPA is guided by the language in the 

Clean Air Act and not the hearing requirements set 

forth in the Administrative Procedure Act. EPA 

incorporates that reasoning into today’s decision. 

See 74 FR 32744, 32780–32782 (July 8, 2009). 

182EPA–HQ–OAR–2008–0691–0321. 

183Although PLF expresses the NAAQS PM2.5

primary standard in ‘‘micrometers,’’ the correct unit 

of measure is micrograms. 

184See, e.g., 74 FR 32744, 32783 (July 8, 2009). 

185See Motor and Equipment Manufacturers 

Ass’n v. Nichols, 142 F.3d 449, 462–63, 466–67 

(D.C. Cir.1998), Motor and Equipment 

Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1111, 

1114–20 (D.C. Cir. 1979). 

186A4A may raise these issues in a direct 

challenge to California’s regulations in other 

forums, but these issues are not relevant to EPA’s 

limited review under section 209. 

majority of hearings on section 209 

proceedings have occurred in 

Washington, DC. EPA has been 

conducting its section 209(b) waiver 

proceedings and section 209(e) 

authorization proceedings in this 

manner for decades, and although 

Congress has amended provisions in 

section 209 on two separate occasions, 

Congress has not chosen to alter EPA’s 

administrative requirements. 

EPA is guided by the principles of fair 

public notice and opportunity for 

comment. In this instance, EPA 

published notice of CARB’s 

authorization request in the Federal 

Register, including the Clean Air Act 

prescribed authorization criteria EPA 

would review in consideration of 

CARB’s request, and provided more 

than 30 days of notice before conducting 

a public hearing. EPA conducted a 

properly noticed public hearing in 

Washington, DC which was attended by 

several trade associations representing 

numerous members and fleet operators 

within California.181 EPA has placed the 

transcript of the public hearing into the 

public docket. After the public hearing 

EPA provided an additional 30 days for 

interested parties to submit written 

comment addressing all relevant issues 

pertaining to California’s authorization 

request. The affected parties have had in 

their possession the necessary 

information to adequately comment on 

whether the Fleet Requirements are 

technologically feasible as well as 

CARB’s protectiveness determination. 

Opponents have had access to the 

necessary information to formulate 

comments in regard to the second 

waiver criterion at section 

209(e)(2)(A)(ii). All written comments 

have been placed in the public docket. 

EPA was responsive to the desire 

expressed by some commenters to speak 

directly with representatives to EPA, 

including the desire to explain the 

economic impacts the Fleet 

Requirements may have on their 

businesses. In response, EPA conducted 

and made available an informal 

teleconference phone call for interested 

parties in California with 

representatives from EPA.182 This 

Federal Register notice provides EPA’s 

reasoned response to all oral testimony, 

written comment, and viewpoints 

expressed to EPA. All commenters, 

including opponents of the waiver, have 

had ample opportunity to comment and 

meet their applicable burdens of proof. 

Opponents of CARB’s Fleet 

Requirements and of its authorization 

request have had ample opportunity to 

present their viewpoints during the 

course of CARB’s rulemaking and EPA’s 

authorization proceeding. Lastly, as 

noted above, CARB has engaged in 

several proceedings and has adopted a 

series of amendments in response to 

concerns raised by the regulated parties, 

including fleet operators. 

2. Request for EPA To Reopen the 

Comment Period 

EPA received comment from PLF 

characterized as a ‘‘Notice of New 

Development and Supplemental 

Comment’’ requesting that EPA reopen 

the comment period associated with the 

Fleet Requirements authorization 

request and to hold in abeyance any 

decision regarding California’s 

authorization request. PLF points to the 

recent decision issued by the United 

States Court of Appeals for the District 

of Columbia Circuit in Natural 

Resources Defense Counsel v. EPA, No. 

08–1250, January 4, 2013, (Decision) for 

the proposition that the court’s decision 

and CARB’s authorization application 

are inextricably linked. PLF 

characterizes the Decision as requiring 

EPA itself to adopt stringent federal 

implementation standards for PM2.5

throughout the nation, including 

California. Because California asserted 

that it ‘‘needs’’ PM2.5 nonroad diesel 

standards that are more stringent than 

federal PM2.5 standards, and because 

EPA is now required to use the 

‘‘stringent, action-forcing provisions’’ of 

section 188–188(b) of the Clean Air Act 

as a result of the Decision, PLF 

maintains that it is appropriate to 

complete EPA’s administrative 

proceedings on remand (from the 

Decision) before EPA is able to 

determine the extent to which there is 

a ‘‘need’’ for California to have its own 

PM2.5 standard based on ‘‘compelling 

and extraordinary conditions’’ in 

California. In addition, PLF asserts that 

EPA’s most recent revision of the 

NAAQS PM2.5 primary standard, which 

lowers the existing level to 12.0 

micrograms per cubic meter, and the 

concomitant revision to the Air Quality 

Index for PM2.5, provides additional 

reason to question California’s ‘‘need’’ 

for its own PM2.5 nonroad diesel 

standard.183 EPA responds to the 

substance of PLF’s comments above in 

our discussion of the second criterion 

for authorization. 

As discussed above, EPA does not 

agree that the recent decision of the 

Court of Appeals has any significant 

effect on the second criterion for 

granting authorization. Moreover, PLF 

has had a full opportunity to make its 

argument with regard to this new 

decision and its potential effect on this 

authorization determination, and EPA 

has responded in full to PLF’s 

comments. We therefore believe there is 

no need for a further reopening of the 

comment period for this proceeding; nor 

is there any cause for any delay in 

issuing our decision with regard to the 

authorization. Therefore, we deny PLF’s 

request to reopen the authorization 

comment period and to delay issuing an 

authorization decision for the Fleet 

Requirements. 

3. Claims Outside the Scope of the 

Clean Air Act 

Airlines for America (‘‘A4A’’) has 

provided comment opposing EPA 

authorization of California’s Fleets 

Regulation. A4A claims that the Fleet 

Requirements, as they affect airport 

ground equipment, are preempted by 

the Federal Aviation Act and the Airline 

Deregulation Act. These comments are 

outside the scope of EPA’s scope of 

review of California authorization 

requests under section 209(e)(2). As 

EPA has stated on numerous occasions, 

EPA’s review of California regulations 

under section 209 is not a broad review 

of the reasonableness of the regulations 

or its compatibility with all other laws. 

Sections 209(b) and 209(e) of the Clean 

Air Act limit EPA’s authority to deny 

California requests for waivers and 

authorizations to the three criteria listed 

therein. As a result, EPA has 

consistently refrained from denying 

California’s requests for waivers and 

authorizations based on any other 

criteria.184 In instances where the U.S. 

Court of Appeals has reviewed EPA 

decisions declining to deny waiver 

requests based on criteria not found in 

section 209(b), the Court has upheld and 

agreed with EPA’s determination.185

A4A’s comment raises issues of federal 

preemption that are not included within 

the criteria listed under sections 

209(e).186 Therefore, in considering 

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Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / Notices 58121 

187 Delta Construction, May 12, 2010 comment at 

3 (Citing 42 U.S.C. 7410(k) and 40 CFR 52.02(a)). 

188See, e.g. 74 FR 32744, 32783 (July 8, 2009). 189 MEMA I. 

whether to grant authorization for 

California’s Fleet Requirements under 

section 209(e), EPA cannot deny 

California’s request for authorization 

based on the issues raised by A4A. 

EPA also received comment 

suggesting that EPA and California must 

certify CARB’s Fleet Requirements as 

‘‘not having a significant economic 

impact on a substantial number of small 

entities’’ under the Regulatory 

Flexibility Act (5 U.S.C. 601).187 EPA 

notes that CARB’s authorization request 

and EPA’s subsequent action do not 

constitute a rule as defined in the 

Regulatory Flexibility Act, 5 U.S.C. 

601(2), and therefore are not covered by 

the certification requirement in that 

statute. EPA’s authorization proceedings 

and actions under section 209(e)(2)(A) 

are informal adjudications. In an 

authorization proceeding, EPA receives 

a request from one entity (CARB) that is 

presenting an existing regulation 

established as a matter of California law. 

The request is for an EPA authorization 

for that party, so it may adopt and 

enforce the specific regulations. In 

deciding this request, EPA interprets 

and applies the three authorization 

criteria established by the Act, and 

under this provision is required to grant 

the authorization unless EPA makes one 

of the three specified findings. EPA 

applies the pre-existing law, section 

209(e)(2)(A), and EPA’s regulation 

promulgated therein, to a specific 

request covering a specific regulation, 

and applies the three statutory criteria 

to the facts of the specific request. 

The decision to grant or deny the 

authorization request directly affects the 

legal rights of the party before EPA, 

California. If EPA grants the 

authorization, then CARB may enforce 

its state regulations. Other parties, for 

example, the fleet operators, may be 

indirectly affected because state 

regulation is no longer preempted. 

While there may be indirect 

consequences for various parties, the 

only decision taken by EPA in the 

authorization proceeding is the decision 

that permits the State of California to 

adopt and enforce its state regulations. 

As noted above, sections 209(b) and 

209(e) of the Clean Air Act limit EPA’s 

authority to deny California requests for 

waivers and authorizations to the three 

criteria listed therein. As a result, EPA 

has consistently refrained from denying 

California’s requests for waivers and 

authorizations based on any other 

criteria.188 Review of California 

regulations under the Regulatory 

Flexibility Act is not included within 

the criteria listed under sections 209(e). 

Indeed, Congress intended EPA to 

provide California with substantial 

deference in making its own decisions 

regarding the effects of its regulations. 

Therefore, in considering whether to 

grant authorization for California’s Fleet 

Requirements under section 209(e), EPA 

is not required to undertake a review 

under the Regulatory Flexibility Act and 

could not deny California’s request for 

authorization based on any such review. 

4. Constitutional Claims 

EPA received a number of comments 

suggesting that EPA should deny 

authorization of the Fleet Requirements 

because of their potential to impose 

negative economic impacts on fleets. 

These comments stated that the 

regulations would cause emissions 

control equipment that fleet operators 

purchased before CARB’s regulations 

took effect to lose its asset value, even 

though the equipment still has a long 

useful life. The comments suggest that 

CARB’s regulation amounts to a 

‘‘taking’’ as defined under the Fifth 

Amendment to the U.S. Constitution 

and ‘‘appropriate sections of California 

Constitution and Law.’’ EPA’s response 

to these comments is guided first by the 

language in section 209(e)(2)(A) that 

clearly sets forth the limited criteria or 

basis by which we may deny an 

authorization request from CARB. EPA’s 

limited ability to deny an authorization 

request to the criteria found in section 

209(e)(2)(A) of the Act is consistent with 

case law.189 Therefore, in considering 

whether to grant authorization for 

California’s Fleet Requirements under 

section 209(e), EPA cannot deny 

California’s request for authorization 

based on constitutional arguments 

outside the scope of the Clean Air Act. 

Moreover, such arguments are best 

directed against California directly in a 

court of law, not to a separate 

government agency with only a limited 

authority to review California’s 

regulations. 

E. Authorization Determination for 

California’s Fleet Requirements 

After a review of the information 

submitted by CARB and other 

commenters, EPA finds that those 

opposing California’s request have not 

met the burden of demonstrating that 

authorization for California’s Fleet 

Requirements should be denied based 

on any of the statutory criteria of section 

209(e)(2)(A). For this reason, EPA finds 

that an authorization for California’s 

Fleet Requirements should be granted. 

IV. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating California’s Fleet 

Requirements, CARB’s submissions, and 

the public comments received, EPA is 

granting an authorization to California 

for its Fleet Requirements. 

My decision will indirectly affect not 

only persons in California, but also 

entities outside the state who must 

comply with California’s requirements. 

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 

November 19, 2013. Judicial review of 

this final action may not be obtained in 

subsequent enforcement proceedings, 

pursuant to section 307(b)(2) of the Act. 

V. Statutory and Executive Order 

Reviews 

As with past 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: September 13, 2013. 

Janet G. McCabe, 

Acting Assistant Administrator, Office of Air 

and Radiation. 

[FR Doc. 2013–22930 Filed 9–19–13; 8:45 am] 

BILLING CODE 6560–50–P 

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