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OAR Box 1142 

Prepped by Ollie Stewart 

Document Number: 

15) IV-F-13 

Docket Number: 

A-87-11 

Printed 4/23/2008 10:21:21 AM Sheet IS of 30 
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A-87-/I 

iv-f-/3? 

Before the 

United States 

Environmental Protection Agency 

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Public Hearing: 

Control of Air Pollution From New 

Motor Vehicles and New Motor Vehicle 

Engines; Refueling Emission Regulations for 

Gasoline-Fueled Light-Duty Vehicles and 

Trucks and Heavy-Duty Vehicles 

Testimony Presented on Behalf of the 

Motor Vehicle Manufacturers Association 

of the United States, Inc. 

September 26, 1991 

Romulus, Michigan 
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TESTIMONY OF THE 

MOTOR VEHICLE MANUFACTURERS ASSOCIATION 

BEFORE THE ENVIRONMENTAL PROTECTION AGENCY 

Docket No. A-87-11 

Good morning. I am Timothy O'Brien of Ford Motor Company. 

With me at the table are Timothy McCann of General Motors and 

Erika Jones of Mayer, Brown & Piatt, legal counsel representing 

Motor Vehicle Manufacturers' Association of the United States, 

Inc. We are pleased to be here to present the views of the Motor 

Vehicle Manufacturers Association with respect to the rulemaking 

course EPA should take, in light of the recent study of the 

National Highway Traffic Safety Administration (NHTSA) regarding 

the safety of onboard refueling vapor recovery (ORVR) systems. 

MVMA appreciates this opportunity to participate in the development 

of EPA's rulemaking position. While many other witnesses today 

will discuss the technical aspects of NHTSA's safety assessment, 

our comments respond specifically to EPA's request for views on 

"the rulemaking course that the Agency should take" in light of the 

NHTSA report. 

Our views can be summarized in four points: 

• First, the rulemaking record requires a conclusion that 

canister-based ORVR systems will unreasonably increase the 

risk to motor vehicle safety. 

• Second, EPA should issue a decision declining to require 

ORVR systems at this time in light of the unreasonable safety 

risk. 

• Third, EPA has ample legal authority to reach such a result, 

under the plain language and legislative history of the Clean 

Air Act. 
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• Finally, Stage II controls are required by the Clean Air Act, 

will control the same emissions as ORVR systems, and will 

achieve control in a safe manner. 

The Rulemaking Record Requires a Conclusion that Canister-Based 

ORVR Svstems will Increase the Risk to Motor Vehicle Safety 

In November 1990, the President signed the Clean Air Act 

Amendments of 1990. These amendments directed EPA to consult 

with the Secretary of Transportation about the safety of ORVR 

control systems before issuing standards requiring them. 

Congress directed that the safety consultation and rulemaking be 

completed within one year of enactment of the amendments. 

The National Highway Traffic Safety Administration (NHTSA), 

the. expert vehicle safety agency within DOT, provided EPA with a 

thorough assessment of the safety issue in July 1991. NHTSA 

found unequivocally that canister-based ORVR systems will 

increase the risk to motor vehicle safety. 

Although the comments of others today will be helpful, 

NHTSA's report must be the centerpiece of the rulemaking record 

on the safety issue. In light of NHTSA's Congressionally 

chartered expertise in vehicle safety matters, the statutory 

requirement that EPA consult with NHTSA in this regard, and the 

thoroughness with which NHTSA prepared its July 1991 report, the 

NHTSA conclusions are entitled to substantial weight in EPA's 

rulemaking. 

Among the findings of the NHTSA assessment is the following, 

conclusion: 

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"Under certain conditions representative of the motor 

vehicle crash and operating environment, ORVR refueling 

vapor recovery systems would result in a substantial 

increase in fire potential. These occurrences result 

in an increased safety risk and hence would have a 

negative impact on safety." 

The NHTSA report also finds: 

"The complexity of [ORVR] systems and data indicating 

that fire risks will increase with ORVR systems lead to 

the conclusion that ORVR systems will result in an 

increase in safety risk and thus have a negative impact 

on safety." 

The safety risks identified by NHTSA, relating principally to 

increased fuel system complexity and vapor volume, are inherent 

in any canister-based onboard design. NHTSA identified failure 

modes "due to design, manufacture, or assembly errors, as well as 

damage, improper servicing, or deliberate disconnection through 

tampering," as well as other "operational safety concerns" 

associated with the refueling process, vehicle operation and 

vehicle crashes. 

The safety risk identified by NHTSA is neither small nor 

speculative. Although NHTSA candidly acknowledged that it could 

not provide precise quantification of increased numbers of 

vehicle fires or associated injuries, NHTSA unequivocally 

concluded that "fire risks will increase" with ORVR systems. 

NHTSA's report also stated, "[a]lthough relatively rare, . . . 

the occurrence of a fire [in a collision] greatly increases the 

risk of injury." (Emphasis added.). 

This rulemaking record, enhanced by the comments received 

today, must lead to an EPA decision that it will not require 

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canister-based ORVR systems in light of the safety risks identified 

with the systems. No other conclusion could be rationally 

supported by the existing rulemaking record. 

An EPA Decision Declining to Require ORVR Systems Gives Full 

Effect to the Plain Language and Legislative History of the Clean 

Air Act 

Given the strength and clarity of the safety record on this 

issue, EPA must proceed in a manner that gives full effect to the 

overall goals of the Clean Air Act as well as to the intent of 

Congress in amending the provision dealing with ORVR controls. 

As EPA correctly noted in its request for comments on the safety 

study, the statutory framework for the agency's decision 

encompasses both the amended Section 202(a)(6), which provides 

for rulemaking to consider mandating ORVR controls, as well as 

the requirements of Section 202(a)(4), a longstanding provision 

of the Clean Air Act that attempts to ensure that emission 

control systems do not have unintended, adverse effects on health 

or safety. EPA also correctly noted the relevance of new 

provisions of the Clean Air Act which require Stage II controls 

in most populated areas. EPA's construction of these provisions 

is supported by the legislative history of the 1990 amendments. 

The plain language of Section 202(a)(6) makes it clear that 

Congress expected EPA to consider the safety of ORVR systems 

before requiring them, with special consideration given to 

NHTSA's advice on safety. Congress intended the consultation to 

be meaningful, and specifically expected the safety consultation 

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to be part of the rulemaking record and an integral part of the 

rulemaking decision. Any other interpretation of the safety 

consultation provision would eviscerate the provision. Therefore, 

the only course of action that is consistent with the intent of 

Congress in providing for the safety consultation, and with the 

rulemaking record, is an EPA decision declining to require 

canister-based ORVR systems because they are unsafe. 

The legislative history of Section 202(a)(6) provides 

additional support for an EPA decision declining to require 

unsafe ORVR systems. The House of Representatives' Subcommittee 

on Health and Environment specifically added the requirement for 

a DOT safety assessment to section 202(a)(6) during its markup of 

the provision in 1989, notwithstanding the advice of subcommittee 

counsel that Section 202(a)(4) was sufficient to preclude the 

Agency from mandating unsafe ORVR systems. 

This action of the subcommittee signals two points. First, 

the subcommittee wanted to ensure that EPA would make its ORVR 

regulatory decision on the basis of a rulemaking record that 

included the views of the expert Federal agency charged with 

vehicle safety responsibilities - - DOT/NHTSA, an agency over which 

the Energy and Commerce Committee has oversight authority. The 

members of the subcommittee were well aware of NHTSA's longstanding 

concerns about the safety of ORVR systems when they assigned the 

safety consultation role to DOT. 

Second, the subcommittee was not content to allow the safety 

issue to be resolved solely on the basis of the 1989 record. If 

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Congress had been content that ORVR systems were "safe enough," 

after evaluating the record on the safety issue as it stood in 

1989, there would have been no reason to add the requirement for 

a new DOT/NHTSA consultation on safety. Instead, Congress wanted 

EPA's decision to be based on a rulemaking record that included 

the newest information and analysis, not on stale data. 

Taking it together, the only reasonable interpretation of 

the subcommittee's action in adding the safety consultation is to 

conclude that Congress intended EPA to require ORVR systems only 

after concluding that the systems are safe. Thus, in its report 

on the Clean Air Act Amendments, the Committee on Energy and 

Commerce confirmed that the safety issue was integral to the EPA 

decision, stating, "[n]o one wants a rule that requires [ORVR] 

controls for the consumer that present safety problems." 

H.R.Rep.No.490, 101st Cong., 2d Sess., pt. 1 at 304 (1990). 

As EPA noted in its request for comments, Section 202(a)(4) 

of the Clean Air Act, a provision that was unchanged by the 1990 

amendments, is also relevant to the agency's decision. This 

section imposes a separate duty on EPA to decline to require 

emission control systems that present "an unreasonable risk to 

public health, welfare or safety." (Emphasis supplied.) 

The record in this proceeding will not suppor£__a_conclusion 

that the risk presented by ORVR systems is '^reasonable./ NHTSA 

has found that canister-based onboard systems will increase the 

chances of vehicle fire, a particularly serious risk to motor 

vehicle safety. Notwithstanding the rarity of vehicle fire, 

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safety experts agree that motor vehicle fires must be prevented. 

not simply managed. In a recent report entitled "Motor Vehicle 

Fires in Traffic Crashes and the Effects of the Fuel System 

Integrity Standard" (November 1990), NHTSA found that, in 

collisions involving a fire, the likelihood of serious injury is 

400 - 500% greater than in collisions without fires. Similarly, 

the risk of fatality is 70 - 80% greater in collisions with 

fires. 

And, in light of NHTSA's conclusions identifying safety risks 

which are inherent to canister-based ORVR systems, there is no 

pre-:production test protocol that can resolve these risks, or 

render them "reasonable" or "acceptable." Such a protocol would 

merely defer consideration of the safety issues to some future 

date, contrary to Congressional intent that the safety issues be 

resolved before ORVR controls are mandated. 

The unreasonableness of the safety risk associated with ORVR 

systems is magnified when one considers the ready availability of 

a safe refueling emission control strategy — Stage II systems. 

Stage II systems are proven technologies for the effective 

control of refueling vapors that present no safety risks to the 

motoring public, that enhance service station safety, and that 

are required by the Clean Air Act to be installed in all moderate 

(and worse) ozone nonattainment areas. 

In light of the strong record on the increased risk of fire 

associated with ORVR systems, and the seriousness of that risk, 

EPA should conclude that canister-based ORVR systems present an 

unreasonable risk to safety. A mandate for such devices is thus 

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prohibited by Section 202(a)(4), as the Subcommittee was advised 

by its counsel during deliberations on Section 202(a)(6). 

The November Deadline Does Not Override EPA's Obligations to Make 

A Reasoned Decision Based on the Rulemaking Record 

Although Section 202(a)(6) specifies a rulemaking deadline 

of November 1991, the deadline cannot reasonably be construed to 

require EPA to contradict other, express wishes of Congress. 

Promulgation of an ORVR mandate in November 1991 would arbitrarily 

ignore the results of the safety consultation required under 

Section 202(a)(6), would be inconsistent with Section 202(a)(4) 

and would violate express Congressional intent. 

As discussed above, EPA clearly has the legal authority to 

decline to require ORVR systems in the face of the strong 

evidence in the rulemaking record about the safety problems 

associated with the systems. Although EPA could rely either on 

the plain language of Section 202(a)(6) or on the requirements of 

Section 202(a)(4) to support such a conclusion, reading the two 

provisions together provides the strongest support for declining 

to require ORVR systems. 

Furthermore, a decision declining to require unsafe ORVR 

systems is fully consistent with the Clean Air Act's overall 

goal of improving air quality, because the 1990 Amendments 

provide elsewhere that refueling vapors will be recaptured by 

Stage II controls in areas classified as moderate (or worse) for 

ozone nonattainment. (Section 182(b)(3)). if congress had 

intended to require ORVR systems, regardless of the outcome of 

the safety consultation, there would have been no need to require 

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this means of controlling the same emissions./ In fact, Stage II 

controls can provide ozone abatement benefits superior to ORVR 

systems. Stage II controls will be in widespread use far more 

quickly than ORVR systems could be produced; Stage II controls 

present absolutely no safety risk to the motoring public, and 

they enhance service station safety. 

Conclusion 

An EPA decision declining to require ORVR systems would 

preserve both the Congressional interest in vehicle safety, and 

the Congressional interest in prompt and effective refueling 

emissions control through Stage II systems. EPA should promptly 

issue a decision explaining that it will not require ORVR systems 

in order to give full effect to the plain meaning and intention 

of Sections 202(a)(4) and 202(a)(6) of the Clean Air Act. We 

respectfully submit that to do otherwise would be arbitrary, 

capricious and contrary to law. 

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