```

[Federal Register Volume 77, Number 32 (Thursday, February 16, 2012)]
[Notices]
[Pages 9239-9250]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3690]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9633-1]

California State Motor Vehicle and Nonroad Engine Pollution 
Control Standards; Truck Idling Requirements; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA has granted the California Air Resources Board (CARB) its 
request for a waiver of preemption and authorization to adopt and 
enforce California's Truck Idling Requirements. CARB's Truck Idling 
Requirements apply to new California-certified 2008 and subsequent 
model year heavy-duty diesel engines in heavy-duty diesel vehicles with 
a gross vehicle weight rating over 14,000 pounds, and to in-use diesel-
fueled commercial vehicles with gross vehicle weight ratings over 
10,000 pounds that are equipped with sleeper berths.

DATES: Petitions for review must be filed by April 16, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2010-0317. All documents relied upon in making this 
decision, including those submitted to EPA by CARB, and public 
comments, 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-2010-0317 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: Kristien G. Knapp, Attorney-Advisor, 
Compliance and Innovative Strategies Division, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: 
(202) 343-9949. Fax: (202) 343-2800. Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. California's Truck Idling Requirements

    By letter dated May 9, 2008, CARB informed EPA that it had adopted 
its Truck Idling Requirements, and requested that EPA confirm that 
certain provisions of the requirements are not preempted by sections 
209(a) of the Clean Air Act (Act); certain provisions are conditions 
precedent pursuant to section 209(a) of the Act; \1\ certain provisions 
are within-the-scope of previous waivers and authorizations issued 
pursuant to sections 209(b) and 209(e) of the Act, respectively; and at 
least one provision requires and merits a full authorization pursuant 
to section 209(e) of the Act.\2\ CARB's 2008 Truck Idling Requirements 
became effective California state law on November 15, 2006, amending 
title 13, California Code of Regulations (CCR) sections 1956.8, 2404, 
2424, 2425, and 2485.\3\
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    \1\ EPA can confirm that a California requirement is a condition 
precedent to sale, titling, or registration, if: (1) the 
requirements do not constitute new or different standards or 
accompanying enforcement procedures, and (2) the requirements do not 
affect the basis for the previous waiver decision.
    \2\ California Air Resources Board (CARB) Letter to EPA 
regarding, ``Requirements to Reduce Idling Emissions From New and 
In-Use Trucks, Beginning in 2008; Request for Confirmation That 
Certain Requirements are not Subject to Preemption Under Clean Air 
Act Section 209(a) or Fall Within the Scope of Previously Granted 
Waivers and Authorizations, and Request for New Authorization Under 
Section 209(e)(2),'' EPA-HQ-OAR-2010-0317-0001.
    \3\ See California Air Resources Board (CARB), ``Final 
Regulation Order,'' EPA-HQ-OAR-2010-0317-0011.
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    CARB's Truck Idling Requirements consist of three elements: (1) 
``New engine requirements'' that require new California-certified 2008 
and subsequent model year on-road diesel engines in vehicles with a 
gross vehicle weight rating (GVWR) greater than 14,000 pounds (i.e., 
heavy-duty diesel vehicles or ``HDDV''s) be equipped with a system that 
automatically shuts down the engine after five minutes of continuous 
idling; (2) ``sleeper truck requirements'' that require the operator of 
a sleeper truck to manually shut down the engine after five minutes of 
continuous idling;

[[Page 9240]]

and (3) ``alternative technology requirements'' that establish in-use 
performance standards for HDDV operators who use alternative 
technologies to supply power for truck cab or sleeper berth climate 
control and/or other on-board accessories that otherwise would have 
been generated by the continuous idling of the truck's main engine.\4\ 
CARB requests, first, that EPA confirm that its new engine requirements 
are not preempted by section 209(a) of the Act, or that they are other 
conditions precedent required prior to the initial sale of new heavy-
duty diesel engines. Alternatively, CARB requests that if EPA concludes 
that the new engine requirements are preempted by section 209(a) of the 
Act, then EPA confirm that the requirements are within the scope of 
EPA's previously issued waiver for 2007 and later model year heavy-duty 
diesel engines. Second, CARB requests that EPA confirm that its sleeper 
truck requirements are purely operational controls, which are not 
preempted by section 209(a) of the Act. Third, CARB requests the 
following determinations from EPA with respect to its alternative 
technology requirements: (1) A within-the-scope confirmation for its 
requirement that an alternative power supply (APS) may only be operated 
if that engine has been certified to meet either applicable California 
off-road or federal nonroad emission standards and test procedures for 
its fuel type and power category; \5\ (2) a full authorization for its 
requirement that a driver may not operate a diesel-fueled APS engine on 
a vehicle with a primary engine certified to the 2007 and subsequent 
model year standards unless the APS is certified to meet the applicable 
California or federal standard and meets one of three additional 
requirements; \6\ and (3) a determination that its requirements 
pertaining to fuel-fired heaters, batteries, fuel cells, and power 
inverter/chargers for on-shore power are not preempted by section 209.
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    \4\ See California Air Resources Board (CARB), ``Waiver and 
Authorization Action Support Document,'' pp. 1-13, EPA-HQ-OAR-2010-
0317-0002 (hereinafter ``CARB Support Document'').
    \5\ CARB believes this requirement is within-the-scope of the 
previous authorization for new nonroad engine standards because that 
authorization already allows enforcement of California's requirement 
that any new APS engine acquired since the 2000 model year is 
required to meet the California or federal nonroad engine emission 
standards. See 75 FR 8056 (February 23, 2010).
    \6\ The additional requirements are one of the following: (a) 
Exhaust routed into the truck's exhaust system and PM trap; (b) a 
level 3 verified PM control strategy; or (c) use of other procedures 
to demonstrate an equivalent level of emissions compliance.
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B. Clean Air Act New Motor Vehicle Waivers of Preemption

    Section 209(a) of the Clean Air Act preempts states and local 
governments from setting emission standards for new motor vehicles and 
engines; it provides:

    No State or any political subdivision thereof shall adopt or 
attempt to enforce any standard relating to the control of emissions 
from new motor vehicles or new motor vehicle engines subject to this 
part. No state shall require certification, inspection or any other 
approval relating to the control of emissions from any new motor 
vehicle or new motor vehicle engine as condition precedent to the 
initial retail sale, titling (if any), or registration of such motor 
vehicle, motor vehicle engine, or equipment.
Through operation of section 209(b) of the Act, California is able to 
seek and receive a waiver of section 209(a)'s preemption. If certain 
criteria are met, section 209(b)(1) of the Act requires the 
Administrator, after notice and opportunity for public hearing, to 
waive application of the prohibitions of section 209(a). Section 
209(b)(1) only allows a waiver to be granted for any State that had 
adopted standards (other than crankcase emission standards) for the 
control of emissions from new motor vehicles or new motor vehicle 
engines prior to March 30, 1966, if the State determines that its 
standards will be, in the aggregate, at least as protective of public 
health and welfare as applicable federal standards (i.e., if such State 
makes a ``protectiveness determination''). Because California was the 
only state to have adopted standards prior to 1966, it is the only 
state that is qualified to seek and receive a waiver.\7\ The 
Administrator must grant a waiver unless she finds that: (A) 
California's above-noted ``protectiveness determination'' is arbitrary 
and capricious; \8\ (B) California does not need such State standards 
to meet compelling and extraordinary conditions; \9\ or (C) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.\10\ EPA has previously 
stated that consistency with section 202(a) requires that California's 
standards must be technologically feasible within the lead time 
provided, giving due consideration of costs, and that California and 
applicable federal test procedures be consistent.\11\
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    \7\ See S.Rep. No. 90-403 at 632 (1967).
    \8\ CAA section 209(b)(1)(A).
    \9\ CAA section 209(b)(1)(B).
    \10\ CAA section 209(b)(1)(C).
    \11\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and 
Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095, 
1126 (D.C. Cir. 1979).
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    The second sentence of section 209(a) of the Act prevents states 
from requiring, ``certification, inspection or any other approval 
relating to the control of emissions from any new motor vehicle or new 
motor vehicle engine as condition precedent to the initial retail sale, 
titling (if any), or registration of such motor vehicle, motor vehicle 
engine, or equipment.'' However, once EPA has granted California a 
waiver of section 209(a)'s preemption for emission standards and/or 
accompanying enforcement procedures, California may then require other 
such conditions precedent.\12\ EPA can confirm that a California 
requirement is a condition precedent to sale, titling, or registration, 
if: (1) The requirements do not constitute new or different standards 
or accompanying enforcement procedures, and (2) the requirements do not 
affect the basis for the previous waiver decision.
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    \12\ ``Once California receives a waiver for standards for a 
certain class of motor vehicles, it need only meet the waiver 
criteria of section 209(b) for regulations pertaining to those 
vehicles when it adopts new or different standards or accompanying 
enforcement procedures. Otherwise, California may adopt any other 
condition precedent to the initial retail sale, titling, or 
registration of those vehicles without the necessity of receiving a 
further waiver of Federal preemption.'' 43 FR 36680 (August 18, 
1978).
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    In contrast to section 209(a)'s preemption of state adoption of 
standards controlling emissions from new motor vehicles and motor 
vehicle engines, section 209(d) of the Act explicitly preserves states' 
ability to regulate vehicles and engines in use. Section 209(d) 
provides that despite section 209(a)'s preemption, ``Nothing in this 
part shall preclude or deny to any State or political subdivision 
thereof the right otherwise to control, regulate, or restrict the use, 
operation, or movement of registered or licensed motor vehicles.'' \13\
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    \13\ See also Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1094 
(D.C. Cir. 1996).
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C. 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. Section 209(e)(2) of the 
Act requires the Administrator to grant California authorization to 
enforce its own

[[Page 9241]]

standards for new nonroad engines or vehicles, which are not listed 
under section 209(e)(1), subject to certain restrictions. On July 20, 
1994, EPA promulgated a rule that sets forth, among other things, the 
criteria, as found in section 209(e)(2), which EPA must consider before 
granting any California authorization request for new nonroad engine or 
vehicle emission standards. On October 8, 2008, the regulations 
promulgated in that rule were moved to 40 CFR Part 1074, and modified 
slightly.\14\ As stated in the preamble to the section 209(e) rule, EPA 
has historically interpreted the section 209(e)(2)(iii) ``consistency'' 
inquiry to require, at minimum, that California standards and 
enforcement procedures be consistent 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).\15\
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    \14\ The applicable regulations, now in 40 CFR part 1074, 
subpart B, Sec.  1074.105, provide:
    (a) The Administrator will grant the authorization if California 
determines that its standards will be, in the aggregate, at least as 
protective of public health and welfare as otherwise applicable 
federal standards.
    (b) The authorization will not be granted if the Administrator 
finds that any of the following are true:
    (1) California's determination is arbitrary and capricious.
    (2) California does not need such standards to meet compelling 
and extraordinary conditions.
    (3) The California standards and accompanying enforcement 
procedures are not consistent with section 209 of the Act.
    (c) In considering any request from California to authorize the 
state to adopt or enforce standards or other requirements relating 
to the control of emissions from new nonroad spark-ignition engines 
smaller than 50 horsepower, the Administrator will give appropriate 
consideration to safety factors (including the potential increased 
risk of burn or fire) associated with compliance with the California 
standard.
    \15\ See 59 FR 36969 (July 20, 1994).
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    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. Pursuant to section 209(b)(1)(C), 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 are 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.

D. Within-the-Scope Determinations

    If California amends regulations that were previously granted a 
waiver of preemption, EPA can confirm that the amended regulations are 
within the scope of the previously granted waiver. Such within-the-
scope amendments are permissible without a full waiver review if three 
conditions are met. First, the amended regulations must not undermine 
California's determination that its standards, in the aggregate, are as 
protective of public health and welfare as applicable federal 
standards. Second, the amended regulations must not affect consistency 
with section 202(a) of the Act. Third, the amended regulations must not 
raise any ``new issues'' affecting EPA's prior waivers.

E. Burden of Proof

    In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (DC Cir. 
1979) (``MEMA I''), the U.S. Court of Appeals stated that the 
Administrator's role in a section 209 proceeding is to:

consider all evidence that passes the threshold test of materiality 
and * * * thereafter assess such material evidence against a 
standard of proof to determine whether the parties favoring a denial 
of the waiver have shown that the factual circumstances exist in 
which Congress intended a denial of the waiver.\16\
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    \16\ MEMA I, 627 F.2d at 1122.

The court in MEMA I considered the standards of proof under section 209 
for the two findings related to granting a waiver for an ``accompanying 
enforcement procedure'' (as opposed to the standards themselves): (1) 
Protectiveness in the aggregate and (2) consistency with section 202(a) 
findings. The court instructed that ``the standard of proof must take 
account of the nature of the risk of error involved in any given 
decision, and it therefore varies with the finding involved. We need 
not decide how this standard operates in every waiver decision.'' \17\
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    \17\ Id.
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    The court upheld the Administrator's position that, to deny a 
waiver, there must be `clear and compelling evidence' to show that 
proposed procedures undermine the protectiveness of California's 
standards.\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\
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    \18\ Id.
    \19\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
Although MEMA I did not explicitly consider the standards of proof 
under section 209 concerning a waiver request for ``standards,'' as 
compared to accompanying enforcement procedures, there is nothing in 
the opinion to suggest that the court's analysis would not apply with 
equal force to such determinations. EPA's past waiver decisions have 
consistently made clear that: ``[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\
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    \20\ See, e.g., 40 FR 21102-103 (May 28, 1975).
---------------------------------------------------------------------------

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

[t]he language of the statute and 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.\21\
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    \21\ MEMA I, 627 F.2d at 1121.

The Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver

[[Page 9242]]

decision set aside as `arbitrary and capricious.''' \22\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \23\
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    \22\ Id. at 1126.
    \23\ Id. at 1126.
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F. EPA's Administrative Process in Consideration of California's Truck 
Idling Requirements

    Upon review of CARB's request, EPA invited public comment on the 
entire request, including but not limited to the following issues.
    First, we asked whether we should consider CARB's new engine 
requirements as non-preempted operational controls, or as conditions 
precedent. In the alternative, should we determine that CARB's new 
engine requirements must be treated as standards relating to the 
control of emissions or accompanying enforcement procedures, we asked 
whether they be subject to and meet the criteria for EPA to confirm 
that they are within-the-scope of EPA's waiver for new heavy-duty 
diesel engines for 2007 and subsequent model years. To the extent the 
new engine requirements should be treated as standards relating to the 
control of emissions or accompanying enforcement procedures and require 
a full waiver from EPA, we asked whether the requirements meet the full 
waiver criteria.
    Second, we asked whether CARB's sleeper truck requirements properly 
should be considered an operational control and thus not preempted by 
section 209 of the Act. To the extent that CARB's sleeper truck 
requirements should be treated as standards relating to the control of 
emissions from new motor vehicles or engines or accompanying 
enforcement procedures and require a full waiver from EPA, we sought 
comment on whether the requirements meet the criteria for a full 
waiver.
    Third, with respect to CARB's alternative technology requirements, 
EPA sought comment on the following specific questions: (1) Does CARB's 
requirement that an APS using an internal combustion engine be 
certified to meet either California off-road or federal nonroad 
emission standards and test procedures meet the requirements for 
finding that it is within-the-scope of the authorization EPA issued for 
new nonroad engine standards, thus not requiring a full authorization?; 
\24\ (2) If not, does CARB's requirement that an APS using an internal 
combustion engine be certified to meet either California off-road or 
federal nonroad emission standards and test procedures meet the 
requirements for a full authorization?; (3) Does CARB's requirement 
that a diesel-fueled APS engine be certified to the California or 
federal 2007 and subsequent model year standards and meet one of three 
other listed requirements \25\ meet the criteria for a full 
authorization?; and (4) Are CARB's requirements pertaining to fuel-
fired heaters, batteries, fuel cells, power inverter/chargers for on-
shore power, and truck electrification preempted under section 209 of 
the Clean Air Act, and if so, do they meet the requirements for waiver 
under section 209(b) or authorization under section 209(e)?
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    \24\ 75 FR 8056 (February 23, 2010).
    \25\ The additional requirements are one of the following: (a) 
Exhaust routed into the truck's exhaust system and PM trap; (b) a 
level 3 verified PM control strategy; or (c) use of other procedures 
to demonstrate an equivalent level of emissions compliance.
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    As called out by those specific questions, EPA sought threshold 
input on whether to treat various elements of CARB's Truck Idling 
Requirements as conditions precedent, within the scope of previous 
waivers and authorizations, not preempted by section 209, or in need of 
a full waiver or authorization. We also sought substantive comment on 
whether the various elements of CARB's Truck Idling Requirements meet 
the applicable criteria for confirmation as conditions precedent, 
within the scope, non-preemption, and full waiver or authorization.
    In response to EPA's July 27, 2010 Federal Register notice, EPA 
received three written comments and no request for a public hearing. 
The written comments are from the American Trucking Associations 
(``ATA''),\26\ the Owner-Operator Independent Drivers Association, Inc. 
(``OOIDA''),\27\ and CARB.\28\
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    \26\ American Truck Associations (``ATA''), ``Docket ID No. EPA-
HQ-OAR-2010-0317,'' September 30, 2010, EPA-HQ-OAR-2010-0317-0017, 
September 30, 2010 (hereinafter ``ATA Comments'').
    \27\ Owner-Operator Independent Drivers Association Inc. 
(``OOIDA''), ``Initial Comments of Owner-Operator Independent 
Drivers Association & Request for Additional Time to Provide 
Additional Comments,'' October 1, 2010 (hereinafter ``OOIDA 
Comments'').
    \28\ CARB, Additional Information to Support California's 
Request for Waiver and Authorization Actions for California's 2008 
Truck Idling Requirements, and Response to Comments Submitted by 
Parties Opposing California's Waiver and Authorization Request; 
Docket ID No. EPA-HQ-2010-0317,'' EPA-HQ-OAR-2010-0317-1109, 
February 23, 2010 (hereinafter ``CARB Supplemental Comments'').
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    ATA's comments specifically oppose California's ``alternative 
technology requirements,'' which establish in-use performance standards 
for HDDV operators who use alternative technologies (e.g., auxiliary 
power units) to supply power for truck cab or sleeper berth climate 
control and/or other on-board accessories that otherwise would have 
been generated by the continuous idling of the truck's main engine. ATA 
comments that those requirements are not consistent with sections 
202(a) and 209(e) of the Clean Air Act.
    OOIDA's comments address issues it believes have been overlooked by 
EPA, including ``CARB's delay in requesting EPA review of Truck Idling 
Requirements without waiting for an EPA determination; CARB's premature 
implementation and enforcement of those Requirements without waiting 
for an EPA determination; and CARB's failure to consider the potential 
adverse impact of these requirements on the health and welfare of the 
affected truck drivers.'' OOIDA also suggested that the Truck Idling 
Requirements may be preempted by federal law other than the Clean Air 
Act. OOIDA also requested an additional forty-five days--until November 
15, 2010--to fully evaluate a recent decision by the United States 
Court of Appeals for the Ninth Circuit, Association of American 
Railroads et. al. v. South Coast Air Quality Management District, et. 
al., case number 07-55804.\29\ EPA did not formally extend the written 
comment period pursuant to this request, but did communicate to OOIDA 
that it would consider any written comments received before the Agency 
reached its final decision. OOIDA did not submit any further comments 
prior to EPA's final decision, published here today.
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    \29\ Association of American Railroads et. al. v. South Coast 
Air Quality Management District, et. al., case number 07-55804 (9th 
Cir. 2010), available at http://www.ca9.uscourts.gov/datastore/opinions/2010/09/15/07-55804.pdf.
---------------------------------------------------------------------------

    CARB submitted additional information in the form of supplemental 
comments to update its request in light of EPA's authorization of 
California's new nonroad compression-ignition regulations, and 
information regarding technological feasibility. CARB also responded to 
EPA's request for comments, and the comments EPA received from ATA and 
OOIDA. CARB's supplemental comments assert that ATA and OOIDA have 
failed to meet their burden of proof for a denial. CARB further 
requests that EPA grant California its requested waiver and 
authorizations to adopt and enforce its Truck Idling Requirements.

II. Discussion

    California's Truck Idling Requirements feature four general sets of 
requirements: Those applicable to

[[Page 9243]]

new engines, those applicable to sleeper trucks, alternative technology 
requirements, and labeling requirements.

A. California's New Engine Requirements

    The new engine requirements imposed by California's Truck Idling 
Requirements establish two compliance options for new California 
certified 2008 and subsequent model year heavy-duty diesel engines 
installed in trucks with a gross vehicle weight rating greater than 
14,000 pounds. The first compliance option requires engine 
manufacturers to install a system that automatically shuts down the 
engine after five minutes of continuous idle operation. The second 
compliance option is an optional NOX idling emission 
standard of 30 grams per hour.
    CARB presents, first, that the new engine requirements are akin to 
operational controls on in-use vehicles and, accordingly, they are not 
preempted by Clean Air Act section 209(b). Alternatively, CARB argues 
that the new engine requirements are ``other conditions precedent'' to 
initial sale, titling, or registration that fall within the scope of 
the waiver of preemption EPA issued for California's 2007 and 
subsequent model year heavy-duty diesel engine standards. Last, CARB 
argues that should EPA determine that the new engine requirements 
constitute standards relating to the control of emissions from new 
motor vehicle engines, such requirements fall within the scope of 
previous waivers of preemption. Thus, EPA must first determine what 
type of control the California new engine requirements impose before 
proceeding with an analysis of whether California meets the necessary 
Clean Air Act requirements under section 209.
    To address these issues, EPA asked the first set of questions in 
the July 27, 2010 Federal Register notice. We asked whether we should 
consider CARB's new engine requirements as non-preempted operational 
controls, or as conditions precedent. In the alternative, we asked if 
we determine that CARB's new engine requirements must be treated as 
standards relating to the control of emissions or accompanying 
enforcement procedures, whether they be subject to and meet the 
criteria for EPA to confirm that they are within-the-scope of EPA's 
waiver for new heavy-duty diesel engines for 2007 and subsequent model 
years. To the extent the new engine requirements should be treated as 
standards relating to the control of emissions or accompanying 
enforcement procedures and require a full waiver from EPA, we asked 
whether the requirements meet the full waiver criteria.
1. Application of Section 209(b) Waiver Criteria
    EPA received no comments in response to the issues EPA raised for 
comment with respect to California's new engine requirements.
    Despite CARB's contentions, EPA has determined that California's 
new engine requirements are standards relating to the control of 
emissions that require a full waiver of preemption from EPA. CARB 
believes that the United States Supreme Court's interpretation of 
``standard relating to the control of emissions from new motor vehicles 
or new motor vehicle engines'' in Engine Manufacturers Association v. 
South Coast Air Quality Management District, 541 U.S. 246 (2004) 
supports its position that the California new engine requirements are 
not standards relating to the control of emissions. To the contrary, 
EPA believes that the Supreme Court's interpretation supports the 
conclusion that California's new engine requirements should be 
considered as standards relating to the control of emissions. The 
primary compliance option of the new engine requirements requires new 
2008 and later model year heavy-duty diesel engines to be equipped with 
idling shutdown systems. CARB presents that the primary compliance 
option does not establish a numerical emission standard, and does not 
require additional emission control devices or design features related 
to the control of emissions. While it is clear that requiring a 
shutdown system does not establish a numerical emission standard, it is 
also clear that requiring manufacturers to design their engines with a 
shutdown system to control truck idling emissions does impose a 
requirement upon manufacturers, for the purpose of limiting emissions. 
Even though this requirement imposes itself as a design requirement and 
not as an emissions performance standard, it is nevertheless a 
requirement related to emission reduction. Furthermore, the Supreme 
Court in EMA v. South Coast explicitly contemplated that a ``design 
feature related to the control of emissions'' would be considered a 
standard relating to the control of emissions. Additionally, 
California's optional NOX idling standard, as an alternative 
compliance option, makes clear what the force and effect of the new 
engine requirements is--to limit emissions from idling trucks by 
imposing a requirement on new engines. Thus, EPA has determined that 
California's new engine requirements are standards relating to the 
control of emissions; and therefore, EPA has evaluated the new engine 
requirements by application of the full waiver criteria.
    CARB alternatively requested that EPA evaluate California's new 
engine requirements by application of EPA's within-the-scope criteria. 
However, the new engine requirements impose an additional design 
requirement upon engine manufacturers, which is a ``new issue'' and 
cautions against application of the within-the-scope criteria. CARB 
believes its requirement that manufacturers include an engine shutdown 
system does not present a ``new issue'' because it ``will only require 
manufacturers to perform minor reprogramming of the software 
incorporated in existing engine or vehicle computers, and will not 
require any modifications to hardware.'' \30\ In contrast, EPA believes 
that manufacturers existing designs do not factor into our analysis 
here.\31\ EPA views the additional design requirement imposed upon 
manufacturers as a new regulatory issue, which was not considered in 
our previous waiver for California's 2007 and subsequent model year 
heavy-duty diesel standards. Therefore, as stated above, we have 
applied the full waiver criteria to California's request.
---------------------------------------------------------------------------

    \30\ CARB Support Document at 31.
    \31\ Manufacturers current designs and system capabilities are 
more appropriately evaluated under the CAA section 209(b)(1)(C) 
technological feasibility criterion.
---------------------------------------------------------------------------

2. California's Protectiveness Determination
    Section 209(b)(1)(A) of the Clean Air Act requires EPA to deny a 
waiver if the Administrator finds that California was arbitrary and 
capricious in its determination that its State standards will be, in 
the aggregate, at least as protective of public health and welfare as 
applicable federal standards. When evaluating California's 
protectiveness determination, EPA compares the stringency of the 
California and federal standards at issue in a given waiver request. 
That comparison is undertaken within the broader context of the 
previously waived California program, which relies upon protectiveness 
determinations that EPA previously found were not arbitrary and 
capricious.
    When California adopted its Truck Idling Requirements, the CARB 
Board made its protectiveness finding in its Resolution 05-55.\32\ That 
protectiveness

[[Page 9244]]

determination was made against the background of California's previous 
protectiveness determination for its 2007 and subsequent model year 
heavy duty diesel standards, which EPA previously found was not 
arbitrary and capricious.\33\ Compared to the federal standards, 
California's 2007 and subsequent model year heavy-duty diesel standards 
are numerically equivalent. Furthermore, CARB asserts that it's Truck 
Idling Requirements ``in no way reduce the stringency of either the 
underlying exhaust emission standards or the associated test 
procedures.'' \34\ Notably, the new engine requirements California is 
imposing within its Truck Idling Requirements are an additional 
requirement beyond that which is required by EPA's federal standards. 
Thus, CARB presents that EPA has ``no basis for finding that CARB'' 
made its protectiveness determination arbitrarily or capriciously.\35\
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    \32\ CARB Resolution 05-55, EPA-HQ-OAR-2010-0008, ``Be It 
Further Resolved that the Board hereby determines that the 
regulations adopted herein will not cause California motor vehicle 
emission standards, in the aggregate, to be less protective of the 
public health and welfare than applicable federal standards.''
    \33\ 70 FR 50322 (August 26, 2005).
    \34\ CARB Support Document at 27.
    \35\ CARB Supplemental Comments at 6.
---------------------------------------------------------------------------

    No commenter expressed an opinion or presented any evidence 
suggesting that CARB was arbitrary and capricious in making its above-
noted protectiveness findings. Therefore, based on the record, EPA 
cannot find that California was arbitrary and capricious in its 
findings that California's new engine requirements are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards.
3. California's Need for State Standards To Meet Compelling and 
Extraordinary Conditions
    Under section 209(b)(1)(B) of the Act, EPA cannot grant a waiver if 
California ``does not need such State standards to meet compelling and 
extraordinary conditions.'' To evaluate this criterion, EPA considers 
whether California needs a separate motor vehicle emissions program to 
meet compelling and extraordinary conditions.
    Over the past forty years, CARB has repeatedly demonstrated the 
need for its motor vehicle emissions program to address compelling and 
extraordinary conditions in California.\36\ In its Resolution 05-55, 
CARB affirmed its longstanding position that California continues to 
need its own motor vehicle and engine program to meet its serious air 
pollution problems. Likewise, EPA has consistently recognized that 
California continues to have the same ``geographical and climatic 
conditions that, when combined with the large numbers and high 
concentrations of automobiles, create serious pollution problems.'' 
\37\ Furthermore, no commenter has presented any argument or evidence 
to suggest that California no longer needs a separate motor vehicle 
emissions program to address compelling and extraordinary conditions in 
California. Therefore, EPA has determined that we cannot deny 
California a waiver for its new engine requirements under section 
209(b)(1)(B).
---------------------------------------------------------------------------

    \36\ See, e.g., Approval and Promulgation of State 
Implementation Plans; California--South Coast, 64 FR 1770, 1771 
(January 12, 1999). See also 69 FR 23858, 23881-90 (April 30, 2004) 
(designating 15 areas in California as nonattainment for the federal 
8-hour ozone national ambient air quality standard).
    \37\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 
(September 8, 2008).
---------------------------------------------------------------------------

4. Consistency With Section 202(a) of the Clean Air Act
    Under section 209(b)(1)(C) of the Act, EPA must deny a California 
waiver request if the Agency finds that California standards and 
accompanying enforcement procedures are not consistent with section 
202(a) of the Act. The scope of EPA's review under this criterion is 
narrow. EPA has stated on many occasions that the determination is 
limited to whether those opposed to the waiver have met their burden of 
establishing that California's standards are technologically 
infeasible, or that California's test procedures impose requirements 
inconsistent with federal test procedures. Previous waivers of federal 
preemption have stated that California's standards are not consistent 
with section 202(a) if there is inadequate lead time to permit the 
development of technology necessary to meet those requirements, giving 
appropriate consideration to the cost of compliance within that time. 
California's accompanying enforcement procedures would be inconsistent 
with section 202(a) if the federal and California test procedures 
conflict, i.e., if manufacturers would be unable to meet both the 
California and federal test requirements with the same test vehicle.
    California presents that its new engine requirements are currently 
technologically feasible, with appropriate consideration given to cost, 
and do not impose inconsistent certification requirements.\38\ First, 
CARB presents information regarding the current technological 
feasibility of the engine shutdown compliance option: ``The technology 
needed to comply with the new engine shutdown system option presently 
exists, and in fact has been widely available as a standard feature in 
most commercially available on-road heavy-duty engines.'' \39\ CARB 
notes that a number of manufacturers already include such technology in 
their engines, but most fleet owners and operators do not activate it. 
For manufacturers who did not include such technology in their engines, 
CARB staff notes that only minor modifications would be needed. The 
costs associated with modifications, as estimated by CARB staff, are 
minimal--``$100 per engine to cover additional administrative costs and 
minimal reprogramming costs.'' \40\ Next, CARB presents information 
regarding the technological feasibility of the optional NOX 
idling standard.\41\ Significantly, CARB notes that many manufacturers 
have either already certified to the optional NOX standard 
or intend to in future model years. These manufacturers have 
implemented strategies to meet the optional NOX idling 
standard without adding any additional hardware or modifications to 
their emission control systems or components. Manufacturers have 
certified to the standard merely by making modifications to their 
existing software (e.g., by modifying exhaust gas recirculation rates 
and/or the pulse of the fuel injectors during idle operating modes). 
Last, CARB presents information regarding the effect of California's 
new engine requirements on manufacturers' existing certification 
requirements. CARB asserts that: ``Neither the new engine shutdown 
system nor the optional NOX idling emission standard option 
present any issues of test procedure inconsistency because there are no 
analogous federal requirements.'' \42\ CARB also confirms that 
manufacturers may conduct one set of tests to determine compliance with 
both California and federal requirements.\43\
---------------------------------------------------------------------------

    \38\ CARB Support Document at 27.
    \39\ CARB Support Document at 28-29.
    \40\ Id. at 28; see also CARB, ``Staff Report: Initial Statement 
of Reasons,'' EPA-HQ-OAR-2010-0317-0005, (hereinafter ``ISOR''), at 
37.
    \41\ CARB Support Document at 30.
    \42\ CARB Support Document at 31.
    \43\ Id.
---------------------------------------------------------------------------

    No commenter expressed any disagreement with these statements from 
CARB, and no commenter presented any evidence opposing CARB's 
assertions regarding technological feasibility, lead-time, and cost of 
compliance. Therefore, EPA is unable to find that California's new 
engine requirements are not technologically feasible within the

[[Page 9245]]

available lead-time, giving appropriate consideration to the cost of 
compliance.
5. Full Waiver of Preemption Determination for California's New Engine 
Requirements
    After a review of the information submitted by CARB and other 
parties to this proceeding, EPA finds that those opposing California's 
request have not met the burden of demonstrating that a waiver for 
California's new engine requirements should be denied based on any of 
the three statutory criteria of section 209(b)(1). For this reason, EPA 
finds that California's new engine requirements should receive a full 
waiver of preemption.

B. California's Sleeper Truck Requirements

    California's Truck Idling Requirements impose a new requirement on 
the operators of sleeper berth equipped heavy-duty diesel vehicles. 
Sleeper truck operators will now be required to manually shut off 
engines after five minutes of continuous idling. To address CARB's 
sleeper truck requirements, EPA asked the second set of questions in 
the July 27, 2010 Federal Register notice. We asked whether CARB's 
sleeper truck requirements properly should be considered an operational 
control and thus not preempted by section 209 of the Act. To the extent 
that CARB's sleeper truck requirements should be treated as standards 
relating to the control of emissions from new motor vehicles or engines 
or accompanying enforcement procedures and require a full waiver from 
EPA, we sought comment on whether the requirements meet the criteria 
for a full waiver.
1. California's Sleeper Truck Requirements Do Not Require a Waiver From 
EPA
    California asserts that the sleeper truck requirements are an in-
use operational control of motor vehicles and do not require a waiver 
of preemption. Since the sleeper truck requirements only apply to in-
use motor vehicles, and Clean Air Act section 209(a) preemption only 
applies to new motor vehicles and engines, CARB asserts that section 
209(a) preemption does not apply to these requirements. Additionally, 
CARB points towards section 209(d) of the Act, which states: ``Nothing 
in this part shall preclude or deny to any State or political 
subdivision thereof the right otherwise to control, regulate, or 
restrict the use, operation, or movement of registered vehicles.'' Read 
together, sections 209(a) and 209(d) make clear that operational 
controls, such as idling limits directed towards the operator of the 
vehicle, are not preempted and do not need a waiver of preemption 
pursuant to section 209(b). EPA agrees with this analysis and does not 
believe that in-use controls, such as idling limits, are preempted by 
section 209(a). Therefore, California's sleeper truck requirements do 
not require a waiver of preemption under section 209(b) of the Act.
2. Other Issues
    OOIDA comments that the sleeper truck idling requirements will have 
an adverse effect on the health and welfare of drivers. This comment is 
inapplicable to EPA's analysis here, because as stated above, EPA has 
found that the sleeper truck requirements are not preempted under 
section 209(a). Therefore, EPA has no authority to evaluate 
California's sleeper truck requirements. To the extent this comment 
suggests that California's protectiveness determination for its 
alternative technology requirements was arbitrary and capricious, we 
have addressed that issue below.

C. California's Alternative Technology Requirements

    CARB anticipated that truck operators would likely utilize 
alternative technologies to power truck cabins, sleeper berths, and/or 
other on-board accessories that previously would have been powered by 
the truck's main engine. Such alternative technologies include internal 
combustion engine powered alternative power sources (``APSs'') and 
fuel-fired heaters. To account for the increased particulate matter 
(PM) emissions that would be generated by inclusion of these 
alternative technologies on heavy-duty diesel vehicles, CARB developed 
alternative technology requirements. CARB's general alternative 
technology requirement is that internal combustion engines used in APSs 
must be certified to the California or federal nonroad emission 
standards and test procedures applicable to the fuel type and 
horsepower category of the engines. CARB also imposes specific 
requirements for diesel-fueled APSs, dependent upon model year. For 
2007 and later model year heavy-duty diesel trucks, a diesel-fueled APS 
must comply with California or federal nonroad emission standards and 
one of three additional requirements: (1) Route their exhaust into the 
truck's exhaust system so that the APS's PM emissions are controlled by 
the truck's PM trap; or (2) be equipped with a level 3 verified PM 
control strategy (i.e., achieve an 85 percent PM reduction efficiency); 
or (3) obtain advance CARB approval to use other procedures to 
demonstrate an equivalent level of emission compliance. For 2006 and 
older model year trucks, diesel-fueled APS need only comply with the 
California or federal nonroad emission standards and test procedures 
applicable to the horsepower category of the engines.
    With respect to CARB's alternative technology requirements, in the 
July 27, 2010 Federal Register notice, EPA sought comment on the 
following specific questions: (1) Does CARB's requirement that an APS 
using an internal combustion engine be certified to meet either 
California off-road or federal nonroad emission standards and test 
procedures meet the requirements for finding that it is within-the-
scope of the authorization EPA issued for new nonroad engine standards, 
thus not requiring a full authorization?; \44\ (2) If not, does CARB's 
requirement that an APS using an internal combustion engine be 
certified to meet either California off-road or federal nonroad 
emission standards and test procedures meet the requirements for a full 
authorization?; and (3) Does CARB's requirement that a diesel-fueled 
APS engine be certified to the California or federal 2007 and 
subsequent model year standards and meet one of three other listed 
requirements \45\ meet the criteria for a full authorization?
---------------------------------------------------------------------------

    \44\ 75 FR 8056 (February 23, 2010).
    \45\ The additional requirements are one of the following: (a) 
Exhaust routed into the truck's exhaust system and PM trap; (b) a 
level 3 verified PM control strategy; or (c) use of other procedures 
to demonstrate an equivalent level of emissions compliance.
---------------------------------------------------------------------------

1. Application of Full Authorization Analysis
    With respect to the threshold question EPA asked as to which waiver 
analysis to apply to CARB's APS requirements, EPA received no comments. 
CARB asserts that because its APS requirements are linked to 
preexisting federal or California standards and certification 
requirements, the new APS requirements are within the scope of the 
prior authorizations for these engines. However, EPA does not believe 
that a within-the-scope analysis is appropriate in this circumstance. 
In the past, EPA has reviewed amendments to previously waived or 
authorized California standards for a determination of whether those 
amendments were within the scope of the previously waived or authorized 
standards. Here though, the APS requirements as imposed by California's 
Truck Idling Requirements are not amendments, but new regulations. Even 
though the APS

[[Page 9246]]

requirements link to and rely upon previously authorized standards, 
they are newly applicable to all APS engines used in on-highway heavy-
duty diesel vehicles, regardless of the model year of the engine. 
Because this is an additional requirement beyond that contemplated in 
previous nonroad and on-highway authorizations, EPA cannot apply its 
within-the-scope construct. Thus, we have reviewed all of California's 
APS requirements by application of our full authorization analysis.
2. California's Protectiveness Determination
    Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that CARB was arbitrary and 
capricious in its determination that its standards are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards. CARB's Board made a protectiveness 
determination in Resolution 05-55, finding that California's Truck 
Idling Requirements will not cause the California emission standards, 
in the aggregate, to be less protective of public health and welfare 
than applicable federal standards.\46\ Furthermore, CARB asserts that 
``there is no question'' its APS requirements are at least as 
protective of public health and welfare as applicable federal 
standards. To make this assertion, CARB highlights that EPA is 
authorized to regulate new nonroad engines, and only California may 
adopt emission standards and other emission-related requirements for 
in-use nonroad engines.\47\ Accordingly, CARB points out that EPA has 
not adopted any emission standards or other requirements applicable to 
in-use APS engines.
---------------------------------------------------------------------------

    \46\ CARB Resolution 05-55, EPA-HQ-OAR-2010-0008, ``Be It 
Further Resolved that the Board hereby determines, pursuant to 
section 209(e)(2) of the federal Clean Air Act, that the emission 
standards and other requirements related to the control of emissions 
adopted as part of this Airborne Toxic Control Measure are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards * * * ''
    \47\ CARB Support Document at 34; see EMA v. EPA, 88 F.3d 1075 
at 1089-1090.
---------------------------------------------------------------------------

    EPA received one comment challenging California's protectiveness 
determination with respect to the APS requirements. OOIDA comments that 
``in determining whether CARB's sleeper truck and alternative power 
source requirements should be approved, under any analysis, EPA should 
take care to fully consider and balance against the benefits to be 
gained by reducing emissions from idling sleeper trucks, the very real 
adverse impact such a requirement would have on the health and welfare 
of the operators of those trucks and negative effects on highway safety 
from truck operators not being properly rested.'' \48\ CARB counters 
that ``OOIDA's argument fails to present `clear and compelling' 
evidence that California's protectiveness determinations are arbitrary 
and capricious; instead, it is only based on OOIDA's assumptions 
regarding the financial status and individual business decisions of 
numerous affected entities.'' \49\ EPA's review of California's 
protectiveness determination is limited under section 209(e)(2)(i). The 
Agency's review is highly deferential to California; the Clean Air Act 
does not leave room for EPA to second-guess the wisdom of California's 
policy. Contrary to OOIDA's request, it is not EPA's role in this 
context to consider and balance the emissions benefits against the 
potential negative impacts on operator health and welfare and highway 
safety. Instead, EPA is charged with determining whether California 
made its protectiveness determination arbitrarily or capriciously. 
Furthermore, for a number of reasons, OOIDA has not met its burden to 
show that California should be denied authorization because it has been 
arbitrary and capricious in making its protectiveness determination. 
First, OOIDA's comments are primarily directed at California's sleeper 
truck requirements, which as discussed above are not even subject to 
the section 209(a) waiver and section 209(e) authorization provisions. 
Second, the issues OOIDA raises with respect to California's 
protectiveness determination are not the type of issues that EPA 
traditionally considers as part of its evaluation of California's 
protectiveness determination. When evaluating California's 
protectiveness determination, EPA traditionally compares the stringency 
of the California and federal standards at issue in a given waiver or 
authorization request. That comparison is undertaken within the broader 
context of the previously waived California program, which relies upon 
protectiveness determinations that EPA previously found were not 
arbitrary and capricious. EPA refrains from conducting a more detailed 
examination of the secondary or tertiary effects California standards 
may have on health and the environment. Such an undertaking would 
seemingly go beyond the review that Congress intended.\50\ Considering 
OOIDA's comments within the context of EPA's traditional protectiveness 
evaluation provides no additional opportunity to question California's 
protectiveness determination because OOIDA provides no indication that 
California's standards are less stringent than comparable federal 
standards. Third, even if we were to take into account OOIDA's 
concerns, OOIDA's secondary ``protectiveness'' concerns to do not 
present sufficient evidence to meet its burden of proof. OOIDA does not 
present any factual evidence or analysis of the specific health and 
welfare effects they expect to be caused by California's idling 
restrictions. Such evidence and analysis would be necessary to show 
that California's standards are less protective of health and welfare. 
Additionally, OOIDA does not dispute that California has presumed and 
allowed several avenues for drivers to use climate control and 
accessories during idling, particularly through the use of alternative 
power units. California also notes, in response to OOIDA, that it has 
provisions to allow extended idling during periods of extreme weather. 
Also, while OOIDA suggests that California's APS requirements are too 
expensive (which is more an issue of technological feasibility, 
discussed below, not protectiveness), there is no question that 
California allows the use of power to deal with climate control in 
sleeper car cabins. In sum, based on full consideration and evaluation 
of the totality of information CARB has supplied and the assertions 
OOIDA has presented, EPA cannot find that California's protectiveness 
determination was arbitrary and capricious.
---------------------------------------------------------------------------

    \48\ OOIDA Comments at 4.
    \49\ CARB Supplemental Comments at 10.
    \50\ MEMA I, 627 F.2d at 1121.
---------------------------------------------------------------------------

    Therefore, 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.

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

    Section 209(e)(2)(ii) of the Act 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 * 
* *.'' This criterion restricts EPA's inquiry to whether California 
needs its own mobile source pollution program to meet compelling and 
extraordinary conditions, and not whether any given standards are 
necessary to meet such

[[Page 9247]]

conditions.\51\ As discussed above, for over forty years CARB has 
repeatedly demonstrated the need for its motor vehicle emissions 
program to address compelling and extraordinary conditions in 
California. In its Resolution 05-55, CARB affirmed its longstanding 
position that California continues to need its own motor vehicle and 
engine program to meet its serious air pollution problems. Likewise, 
EPA has consistently recognized that California continues to have the 
same ``geographical and climatic conditions that, when combined with 
the large numbers and high concentrations of automobiles, create 
serious pollution problems.'' Furthermore, no commenter has presented 
any argument or evidence to suggest that California no longer needs a 
separate motor vehicle emissions program to address compelling and 
extraordinary conditions in California. Therefore, EPA has determined 
that we cannot deny California a waiver for its new engine requirements 
under section 209(e)(2)(ii).
---------------------------------------------------------------------------

    \51\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
---------------------------------------------------------------------------

C. Consistency With Section 209 of the Clean Air Act

    Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant 
an authorization if California's standards and enforcement procedures 
are not consistent with section 209. As described above, EPA has 
historically evaluated this criterion for consistency with sections 
209(a), 209(e)(1), and 209(b)(1)(C).
1. Consistency With Section 209(a)
    To be consistent with section 209(a) of the Clean Air Act, 
California's APS requirements must not apply to new motor vehicles or 
engines. California's APS requirements apply to nonroad engines, not 
new on-highway motor vehicles or engines. CARB presents that although 
the APS are used on on-highway heavy-duty diesel vehicles and engines, 
they are auxiliary engines and are not used to propel motor vehicles or 
engines. CARB further states that because APS are regulated as nonroad 
engines, they fall within the regulatory definition of nonroad engine, 
and are, thus, consistent with section 209(a). No commenter presented 
otherwise; therefore, EPA cannot deny California's request on the basis 
that California's APS 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 APS requirements must not affect new farming or 
construction vehicles or engines that are below 175 horsepower, or new 
locomotives or their engines. CARB presents that APS engines are not 
used in locomotives and are not primarily used in farm and construction 
equipment vehicles. No commenter presented otherwise; therefore, EPA 
cannot deny California's request on the basis that California's APS 
requirements are not consistent with section 209(e)(1).
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. California 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 time. California's accompanying enforcement 
procedures would also be inconsistent with section 202(a) if the 
federal and California test procedures were not consistent. 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 procedure.\52\
---------------------------------------------------------------------------

    \52\ MEMA I, 627 F.2d at 1126.
---------------------------------------------------------------------------

a. Technological Feasibility
    Congress has stated that the consistency requirement of section 
202(a) relates to technological feasibility.\53\ Section 202(a)(2) 
states, in 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.\54\ For example, 
a previous EPA 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.\55\ Subsequently, Congress has stated that, generally, 
EPA's construction of the waiver provision has been consistent with 
congressional intent.\56\
---------------------------------------------------------------------------

    \53\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \54\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
    \55\ 41 FR 44209 (October 7, 1976).
    \56\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
---------------------------------------------------------------------------

    With respect to the general APS requirements, CARB presents that 
the technological feasibility is readily apparent. CARB believes this 
because the general APS requirement is that the APS complies with the 
California or federal nonroad emission standards and test procedures 
applicable for its fuel type and power category. Therefore, EPA has 
already determined the technological feasibility for these standards, 
either in its own federal rulemaking or by authorizing the underlying 
California standards in a previous authorization.\57\ No commenter 
challenges the technological feasibility of California's general APS 
requirements. Thus, EPA cannot deny California's request on the basis 
of technological feasibility.
---------------------------------------------------------------------------

    \57\ 60 FR 37440 (July 20, 1995), 65 FR 69763 (November 20, 
2000), 68 FR 65702 (November 21, 2003), 71 FR 75536, and 75 FR 8056 
(February 23, 2010).
---------------------------------------------------------------------------

    With respect to the specific APS requirements for diesel APSs, CARB 
presents that each option is technologically feasible in the specified 
lead-time. Broadly, CARB asserts that ``numerous technologies currently 
exist that can be used to comply with these requirements, including 
routing the exhaust from an APS into the exhaust system of the main 
engine, battery electric APSs, thermal energy storage systems, and on-
shore electrical power infrastructures at truck stops.'' \58\ CARB also 
presents information regarding the technological feasibility of each of 
its compliance options. For the first option (routing a diesel APS' 
exhaust upstream of the main engine's diesel particulate trap), CARB 
provided information establishing technological feasibility in its 
Initial Statement of Reasoning, which went unchallenged in its Final 
Statement of Reasoning.\59\ CARB also

[[Page 9248]]

represents that at least one manufacturer applied for certification of 
a fully integrated APS and truck exhaust system for the 2008 model 
year.\60\ For the second option (inclusion of a CARB-verified, level 3 
PM control), CARB presented in its initial May 9, 2008 support document 
that it had several verification applications, and that the technology 
was feasible.\61\ Since that time, CARB has conditionally verified 
three level 3 PM control strategies that can be applied to APSs.\62\ 
For the third option (an equivalent compliance strategy), CARB provides 
several currently available technologies that are acceptable 
alternatives to the first two compliance options, including battery 
powered APSs, thermal energy storage systems, truck stop 
electrification, and off-board power infrastructure.\63\ For each of 
the options for compliance with the specific requirements for diesel 
APSs, CARB asserts that it gave appropriate consideration to cost of 
compliance within the lead-time provided.
---------------------------------------------------------------------------

    \58\ CARB Supplemental Comments at 4.
    \59\ CARB, ``Staff Report: Initial Statement of Reasons,'' EPA-
HQ-OAR-2010-0317-0005; CARB, ``Final Statement of Reasons,'' EPA-HQ-
OAR-2010-0317-0010 (hereinafter ``FSOR'').
    \60\ CARB Support Document at 40.
    \61\ CARB Support Document at 42.
    \62\ CARB Supplemental Comments at 4.
    \63\ CARB Support Document at 44.
---------------------------------------------------------------------------

    In its comments, OOIDA expresses concerns related to the cost of 
APSs on truck drivers. OOIDA believes that faced with the added expense 
of an APS, truck drivers will decide not to invest in APSs and 
``instead subject themselves to unhealthy and unsafe cab temperatures 
and conditions when hauling cargo in [California].'' \64\ Section 
202(a) consistency calls for a limited review of technological 
feasibility, including a cost 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. In 
this case, APS technologies are in existence and are being used in 
actual operation. In addition, CARB responds to OOIDA's cost concerns 
in its supplemental comments.\65\ First, CARB points out that its Truck 
Idling Regulations allow truck drivers to override idling shutoff 
systems during extreme weather conditions. More specifically, CARB 
points towards its administrative record for support of its cost 
analysis. During the California rulemaking, CARB staff determined that 
``the capital costs of [APS] technology could be recouped by truck 
owners or operators in as few as two and a half years, due to cost 
savings resulting from reduced fuel and truck maintenance costs.'' \66\ 
CARB also relies on its APS cost estimates and response to comments 
regarding compliance costs.\67\ CARB's rulemaking record with regard to 
cost effectively rebuts OOIDA's assertion that CARB ``simply assumes 
that all drivers have the ability to invest thousands of dollars in 
anti-idling equipment * * *.'' (emphasis added). In any case, while 
OOIDA's comments may be relevant to whether an operator would choose to 
add the APS, they are not relevant to whether APS technologies are 
infeasible. As discussed above, these technologies are being used in 
practice and are clearly feasible.
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    \64\ OOIDA Comments at 3.
    \65\ CARB Supplemental Comments at 10-11.
    \66\ CARB Supplemental Comments at 11.
    \67\ Id.; see ISOR Section VII and FSOR at 49-54.
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    EPA did not receive any other comments suggesting that CARB's 
standards and test procedures are technologically infeasible. 
Consequently, based on the record, EPA cannot deny California's 
authorization based on technological infeasibility.
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 means that 
manufacturers would be unable to meet both the California and federal 
testing requirements using the same test vehicle or engine.\68\
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    \68\ See, e.g., 43 FR 32182 (July 25, 1978).
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    CARB presents that none of the APS requirements pose any 
inconsistency as between California and federal test procedures. First, 
CARB asserts that its general APS requirements do not modify the test 
procedures specified for certifying a California or federal nonroad 
engine.\69\ Second, CARB asserts that none of its three options to meet 
its APS requirements specific to diesel APS raise any issue with regard 
to test procedure consistency. For option 1, CARB again asserts that it 
does not alter test procedures specified for certifying a California or 
federal nonroad engine.\70\ For options 2 and 3, CARB additionally 
points out no incompatibility issue can arise as between federal and 
California test procedures because EPA has no comparable federal 
standards or test procedures for CARB to conflict with.\71\
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    \69\ CARB Support Document at 38.
    \70\ CARB Support Document at 40.
    \71\ CARB Support Document at 45.
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    EPA received no comments suggesting that CARB's APS requirements 
pose a test procedure consistency problem. Therefore, based on the 
record, EPA cannot find that CARB's testing procedures are inconsistent 
with section 202(a). Consequently, EPA cannot deny CARB's request based 
on this criterion.
4. Other Issues
    In its comments, ATA asserts that because California's APS 
requirements (those specific to diesel APSs on 2007 and subsequent 
model year heavy-duty diesel vehicles) apply to new diesel engines, 
they circumvent the consistency criteria of the Clean Air Act. ATA does 
not reference any of the sections of the Act which EPA has historically 
evaluated (i.e., sections 209(a), 209(e)(1), and 209(b)(1)(C)); 
instead, ATA generally challenges California's ability to regulate APSs 
as inconsistent with federal standards. However, California's ability 
to regulate APSs as either new or in-use engines, and depart from 
federal standards--is clearly grounded in section 209 of the Clean Air 
Act. California may regulate new nonroad engines pursuant to section 
209(e)(2)'s authorization provision; and section 209(e) impliedly 
allows California to regulate in-use nonroad engines. Additionally, as 
CARB points out, ATA's reliance on Allway Taxi, Inc. v. City of New 
York, is misplaced.\72\ Allway Taxi concerned whether New York City 
could require emission controls for taxis in use. Those emission 
controls had not received a waiver of preemption, as New York City 
cannot receive one directly and at the time could not promulgate 
standards identical to California's. The court ultimately found that 
New York City could promulgate those emission controls, although noting 
that controls that took effect ``the moment after a new car is bought 
and registered * * * would be an obvious circumvention of the Clean Air 
Act.'' However, California has the authority to request a waiver of 
preemption (or authorization, for nonroad engines) for its standards 
under the Clean Air Act, and EPA has the authority to grant such 
request under section 209. Allway Taxi is not relevant

[[Page 9249]]

to this separate authority. It is this separate authority that is the 
subject of this proceeding. Furthermore, EPA's decision with respect to 
California's Truck Idling Requirements is circumscribed by the waiver 
criteria set forth in sections 209(b) and 209(e) of the Act. ATA's 
argument appears more directed at its policy goal of uniform idling 
regulations, but does not comport with the section 209 criteria, nor 
does it call into question any of EPA's section 209 analysis. Congress 
has provided a mechanism for California to have standards that are more 
stringent than those in other states, and ATA's argument seems to 
neglect this clear authority.
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    \72\ CARB Supplemental Comments at 12. (``Allway Taxi primarily 
addressed the issue of whether states and localities that are 
preempted by the Clean Air Act from regulating new motor vehicles 
could nevertheless regulate emissions from in-use motor vehicles. 
That issue is clearly distinguishable from California's authority to 
adopt and to enforce standards for the nonroad engines in diesel-
powered APSs. Unlike New York, California is expressly authorized by 
Congress to regulate both new and in-use nonroad engines (that are 
not conclusively preempted by section 209(e)(1) of the CAA) in 
diesel-powered APSs.'')
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    ATA also contends that EPA cannot grant a new authorization for 
California's APS requirements (again, those specific to diesel APSs on 
2007 and subsequent model year heavy-duty diesel vehicles) because 
``CARB has not complied with the lead time and stability requirements 
of section 202(a)(3)(C)'' of the Clean Air Act. This comment also does 
not comport with the section 209 criteria. California must take lead-
time into account, and EPA must consider lead-time when evaluating 
California's regulations pursuant to section 209(e)'s consistency 
requirements. However, the lead-time inquiry EPA undertakes relates to 
technological feasibility. Specifically, consistency with section 
202(a) 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.\73\ Congress has stated that, generally, this construction 
accords with congressional intent.\74\ With respect to California's 
specific APS requirements for diesel APSs used on 2007 and later model 
year heavy-duty diesel vehicles, California demonstrated that all three 
compliance options are currently technologically feasible. No party--
including ATA--presented otherwise. EPA then has no further inquiry 
into lead-time, because no additional requirement is imposed by the 
section 209 criteria.
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    \73\ EPA notes that even if the language in section 202(a)(1)(C) 
were relevant to its consistency analysis, that section by its own 
terms applies only to standards applicable to emissions from new 
heavy-duty on-highway motor vehicle engines, not the nonroad engines 
being regulated by California.
    \74\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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5. Authorization Determination for California's APS Requirements
    After a review of the information submitted by CARB and other 
parties to this proceeding, EPA finds that those opposing California's 
request have not met the burden of demonstrating that a waiver for 
California's APS requirements should be denied based on any of the 
three statutory criteria of section 209(e)(2). For this reason, EPA 
finds that California's APS requirements should be authorized.

D. Fuel-Fired Heater Requirements

    California's Truck Idling Requirements also impose emission 
requirements on fuel-fired heaters. Fuel-fired heaters provide heat to 
truck cabs or sleeper berths and/or preheat engine blocks during cold 
weather. Fuel-fired heaters on 2007 and later model year trucks 
operating in California may now only operate fuel-fired heaters that 
comply with California's second generation of low emission vehicle (LEV 
II) regulations.
    With respect to CARB's fuel-fired heater requirements, in the July 
27, 2010 Federal Register notice, EPA sought comment on the following 
question: Are CARB's requirements pertaining to fuel-fired heaters, 
batteries, fuel cells, power inverter/chargers for on-shore power, and 
truck electrification preempted under section 209 of the Clean Air Act, 
and if so, do they meet the requirements for waiver under section 
209(b) or authorization under section 209(e)?
    CARB presents that its fuel-fired heater requirements are not 
preempted and, accordingly, do not require an authorization.\75\ CARB 
asserts that because fuel-fired heaters are neither nonroad engines nor 
vehicles, they are not subject to section 209(e) preemption. EPA 
received no comments suggesting that CARB's fuel-fired heater 
requirements are subject to section 209(e) preemption. EPA confirms 
that fuel-fired heaters are not nonroad engines or vehicles, and are 
therefore not preempted under section 209(e) of the Clean Air Act.
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    \75\ CARB Support Document at 45.
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E. California's Truck Idling Labeling Requirements

    Engine manufacturers, original equipment manufacturers (OEMs), and 
internal combustion APSs manufacturers, as applicable, are required to 
produce and affix permanent labels to the hood of the truck. These 
labels are intended to assist CARB enforcement staff in clearly and 
easily identifying diesel trucks that comply with the California Truck 
Idling Requirements. As stated above, EPA is today issuing a waiver of 
preemption for the new engine requirements and an authorization for the 
APS requirements. California's engine and optional NOX 
idling labeling requirements, which accompany the new engine 
requirements, are therefore included in the waiver of preemption for 
the new engine requirements. Similarly, California's auxiliary power 
system labeling requirements, which accompany the APS requirements, are 
therefore included in the authorization for the APS requirements.

F. Other Issues

    OOIDA's comments present two other issues that generally challenge 
California's Truck Idling Requirements. First, OOIDA asserts that CARB 
should be prohibited from enforcing its Truck Idling Requirements until 
EPA approves them. Second, OOIDA asserts that federal laws other than 
the Clean Air Act may preempt California's Truck Idling Requirements. 
As EPA has stated on numerous occasions, sections 209(b) and 209(e) of 
the Clean Air Act limit our 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.\76\ 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.\77\ Neither of the issues OOIDA raises is among--or fits 
within the confines of--either explicitly or implicitly, the criteria 
listed under sections 209(b) and 209(e).\78\ Therefore, in considering 
California's Truck Idling Requirements, EPA has not considered these 
issues.
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    \76\ See, e.g., 74 FR 32744, 32783 (July 8, 2009).
    \77\ See Motor and Equipment Manufacturers Ass'n v. Nichols, 142 
F.3d 449, 462-63, 466-67 (DC Cir.1998), Motor and Equipment 
Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 (DC Cir. 
1979).
    \78\ OOIDA 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.
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III. Decision

    The Administrator has delegated the authority to grant California 
section 209(b) waivers of preemption and section 209(e) authorizations 
to the Assistant Administrator for Air and Radiation. After evaluating 
CARB's Truck Idling Requirements, CARB's submissions, and the public 
comments from ATA and OOIDA, EPA is taking the following actions. 
First, EPA is granting a waiver of preemption to California for its new 
engine requirements. Second, EPA is granting

[[Page 9250]]

an authorization to California for its auxiliary power system 
requirements.
    My decision will affect not only persons in California, but also 
manufacturers outside the State who must comply with California's 
requirements in order to produce vehicles for sale in California. For 
this reason, I determine and find that this is a final action of 
national applicability for purposes of section 307(b)(1) of the Act. 
Pursuant to section 307(b)(1) of the Act, judicial review of this final 
action may be sought only in the United States Court of Appeals for the 
District of Columbia Circuit. Petitions for review must be filed by 
April 16, 2012. Judicial review of this final action may not be 
obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

    As with past authorization and waiver decisions, this action is not 
a rule as defined by Executive Order 12866. Therefore, it is exempt 
from review by the Office of Management and Budget as required for 
rules and regulations by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a 
supporting regulatory flexibility analysis addressing the impact of 
this action on small business entities.
    Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, does not apply because this action is not a rule for purposes of 
5 U.S.C. 804(3).

    Dated: February 8, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-3690 Filed 2-15-12; 8:45 am]
BILLING CODE 6560-50-P
```