ATTACHMENT A

CALIFORNIA AIR RESOURCES BOARD

FSOR RESPONSES TO COMMENTS ON APPENDIX B TO THE ISOR 

Advanced Clean Cars Environmental Analysis
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FSOR RESPONSES TO COMMENTS ON APPENDIX B TO THE ISOR

Table of Contents

Introduction ......................................................................................................... 1

Requirements for Responses to Comments........................................................ 2

Comments Requiring Substantive Responses .................................................... 3

Responses to Comments .................................................................................... 4

LEV III – L9 Loren Marz Comment and Response.............................................. 5

LEV III – L10 Klaus Land, Mercedes-Benz Comment and Response ................ 6

LEV III – 15-Day - L11 Ray Minjares, International Council on Clean 

Transport Comment and Response...................................................... 7

LEV III – L29 Chris Bliley, Growth Energy Comment and Response .................. 7

LEV III – L34 Azita Khalili, BMW Comment and Response................................. 8

LEV III – L38 Katherine Yehl, Volvo Car Corporation Comment and 

Response ........................................................................................... 11

ZEV – L2 Dan Mars Comment and Response ................................................. 12

ZEV – L74 Loren Marz Comment and Response.............................................. 13

CFO – L8 John Braeutigam, Valero Comment and Response.......................... 13

CFO – L15 Daniel Sinks, Conoco Phillips Comment and Response................. 14

CFO – L26 Cathy Reheis-Boyd, Western States Petroleum Association 

Comment and Response................................................................... 15

CFO – L27 Miles Heller, British Petroleum Comment and Response ............... 43

Transcript – Edward Olson and Jay Bajaria Public Comments – Oral 

Public Comments and Responses...................................................... 45

ZEV/CFO – Bd L1 Cathy Reheis-Boyd, Western States Petroleum 

Association Comments and Responses............................................. 46
1

FSOR RESPONSES TO COMMENTS ON APPENDIX B

Introduction

To meet the requirements of the California Environmental Quality Act (CEQA) under 

ARB’s Certified Regulatory Program, the California Air Resources Board (ARB) staff 

prepared and circulated for public review Appendix B, which is the Environmental 

Analysis (EA) for the Advanced Clean Cars (ACC) Program. The ACC EA analyzed 

amendments to California’s Low-Emission Vehicle Criteria Air Pollutant and 

Greenhouse Gas (LEV III), Zero Emission Vehicle (ZEV), and Clean Fuels Outlet (CFO) 

regulations. The ACC EA was released for public review on December 12, 2011 for a 

45-day public review and comment period that concluded on January 27, 2012 at the 

Board Hearing. ARB received 12 comment letters addressing the EA during the 45 –

day public review period. 

Comment letters received are posted in the comment logs on the ARB website at: 

http://www.arb.ca.gov/lispub/comm/bccommlog.php?listname=leviiighg2012, 

http://www.arb.ca.gov/lispub/comm/bccommlog.php?listname=zev2012, and 

http://www.arb.ca.gov/lispub/comm/bccommlog.php?listname=cfo2012. 

ARB also received a number of oral comments at the Board hearing held on January 26 

and 27, 2012. 

On February 22, staff posted three 15-day change notices of modified regulatory text, 

one for each regulation that provided modified regulatory language based on staff’s 

further suggested modifications, as released at the Board hearing and the Board’s 

overall direction. One comment related to the EA was submitted during that comment 

period, which closed on March 8, 2012. 

On March 12, 2012, ARB released “Responses to Comments on the Advanced Clean 

Cars Environmental Analysis” (RTC), which was considered by the Board at the 

March 22, 2012 public meeting.

One additional comment letter was received on March 21, 2012 comprising a 

commenter’s response to ARB’s RTC that was released on March 12, 2012. Although 

CEQA does not require responses to comments received outside the public comment 

period, ARB is still required to meet the requirements of the Administrative Procedures 

Act (APA), and is providing a response in the Final Statement of Reasons (FSOR).

This document presents verbatim the comments received that raise significant 

environmental issues and ARB’s written responses to those comments. All comments 

have been reviewed and considered by ARB staff in preparing these responses. In 

accordance with ARB’s Certified Regulatory Program and CEQA, the Board will 
2

consider the written responses to comments on the EA for approval prior to taking final 

action on the regulations that comprise the ACC Program. 

This document includes responses to comments on the EA only. Staff will also prepare

written responses to all public comments, not just EA comments, for purposes of the 

Administrative Procedures Act. The complete written responses to all comments will be

included in the Final Statement of Reasons (FSORs) prepared for the each rulemaking. 

Upon their completion, the FSORs will be made available in electronic form on the ARB 

rulemaking webpage at:

http://www.arb.ca.gov/regact/2012/leviiighg2012/leviiighg2012.htm,

http://www.arb.ca.gov/regact/2012/zev2012/zev2012.htm, and

http://www.arb.ca.gov/regact/2012/cfo2012/cfo2012.htm

Requirements for Responses to Comments

Responses to public comments were prepared in compliance with the California 

Environmental Quality Act (CEQA) and with ARB’s certified regulatory program, which 

states: 

Public Resources Code (PRC) section 60007. Response to Environmental 

Assessment 

(a) If comments are received during the evaluation process which raise 

significant environmental issues associated with the proposed action, the staff 

shall summarize and respond to the comments either orally or in a supplemental 

written report. Prior to taking final action on any proposal which significant 

environmental issues have been raised, the decision maker shall approve a 

written response to each such issue. 

In CEQA, PRC section 21091 also provides direction regarding the consideration and 

response to public comments. While the provisions refer to environmental impact 

reports, proposed negative declarations, and mitigated negative declarations, rather 

than a certified regulatory program document, this section of CEQA contains useful 

information for preparation of a thorough and meaningful response to comments. 

PRC section 21091(d) states: 

(1) The lead agency shall consider comments it receives ... if those comments 

are received within the public review period. 

(2) (A) With respect to the consideration of comments received ..., the lead

agency shall evaluate comments on environmental issues that are received from 

persons who have reviewed the draft and shall prepare a written response 

pursuant to subparagraph (B). The lead agency may also respond to comments 

that are received after the close of the public review period. 
3

(B) The written response shall describe the disposition of each significant 

environmental issue that is raised by commenters. The responses shall be 

prepared consistent with section 15088 of Title 14 of the California Code of 

Regulations, as those regulations existed on June 1, 1993. 

Title 14 of the California Code of Regulations (CCR) (State CEQA Guidelines) section 

15088 contains useful information and guidance for preparation of a thorough and 

meaningful response to comments. It states, in relevant part, that specific comments 

and suggestions about the environmental analysis that are at variance from the lead 

agency’s position must be addressed in detail with reasons why specific comments and 

suggestions were not accepted. Responses must reflect a good faith, reasoned 

analysis of the comments. 

Title 14 CCR section 15088 (a – c) states: 

(a) The lead agency shall evaluate comments on environmental issues received 

from persons who reviewed the draft EIR and shall prepare a written response. 

The Lead Agency shall respond to comments received during the noticed 

comment period and any extensions and may respond to late comments. 

(b) The lead agency shall provide a written proposed response to a public 

agency on comments made by that public agency at least 10 days prior to 

certifying an environmental impact report. 

(c) The written response shall describe the disposition of significant 

environmental issues raised (e.g., revisions to the proposed project to mitigate 

anticipated impacts or objections). In particular, the major environmental issues 

raised when the Lead Agency's position is at variance with recommendations and 

objections raised in the comments must be addressed in detail giving reasons 

why specific comments and suggestions were not accepted. There must be 

good faith, reasoned analysis in response. Conclusory statements unsupported 

by factual information will not suffice. 

Comments Requiring Substantive Responses 

Substantive responses are limited to comments that “raise significant environmental 

issues associated with the proposed action,” as required by PRC section 60007(a). 

Therefore, responses specific to comments made on the EA prepared for the ACC 

Program are provided, consistent with the provisions of PRC section 60007. As 

explained above, other substantive comments are responded to in writing in the FSORs. 

Where a comment raises both an issue related to and issues not related to the EA, the 

EA-related comments are responded to in this document and the reader is referred to 

the non-EA- related responses in the FSORs. ARB conservatively included comments 

and responses in this document if the comment raises an environmental issue even if

the comment does not directly pertain to the adequacy of the EA.
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As previously indicated, one additional comment letter was received on March 21, 2012 

comprising a commenter’s response to ARB’s RTC that was released on March 12, 

2012. ARB is providing a response in accordance with APA’s requirements.

Responses to Comments

ARB received 12 comment letters that included comments that raised environmental 

issues and several oral comments during the January Board Hearing. An additional 

comment letter was received after the public comment period closed and was not 

posted. The pdf file is included in lieu of the link. The list in Table 1 identifies the 

commenters that submitted environmental comments and commenter information. The 

specific EA-related written comments are reproduced here verbatim from the comment 

letters. The comment letters are provided below in hyperlinked text. The associated 

attachments to the comment letters are provided at:

http://www.arb.ca.gov/lispub/comm/bccommlog.php?listname=leviiighg2012, 

http://www.arb.ca.gov/lispub/comm/bccommlog.php?listname=zev2012, and 

http://www.arb.ca.gov/lispub/comm/bccommlog.php?listname=cfo2012. 

Table 1. List of Commenters

Comment

Number on 

ARB website

Commenter/

Affiliation Link

Low-Emission Vehicle Criteria Air Pollutant and 

Greenhouse Gas (LEV III) Regulation

LEV III - L9 Loren Marz http://www.arb.ca.gov/lispub/comm/bccomdisp.php?listna

me=leviiighg2012&comment_num=16&virt_num=9

LEV III - L10 Klaus Land, MercedesBenz

www.arb.ca.gov/lists/leviiighg2012/17-

klaus_land_testimony_1-26-2012.doc

LEV III - L11

15-Day

Ray Minjares, 

International Council on 

Clean Transport

http://www.arb.ca.gov/lispub/comm/bccomdisp.php?

listname=leviiighg2012&comment_num=88&virt_nu

m=11

LEV III - L29 Chris Bliley,

Growth Energy

http://www.arb.ca.gov/lists/leviiighg2012/37-

carb_comments_01252012.pdf

LEV III - L34 Azita Khalili, BMW http://www.arb.ca.gov/lists/leviiighg2012/44-

20120125_bmw_comments_ghg_leviii_final.pdf

LEV III - L38 Katherine Yehl, Volvo 

Car Corporation 

www.arb.ca.gov/lists/leviiighg2012/49-

carb_clean_cars_package_vcc_comments_final.pdf

Zero Emission Vehicle Regulation

ZEV - L2 Dan Mars http://www.arb.ca.gov/lispub/comm/bccomdisp.php?listna

me=zev2012&comment_num=4&virt_num=2

ZEV - L74 Loren Marz http://www.arb.ca.gov/lispub/comm/bccomdisp.php?listna

me=zev2012&comment_num=97&virt_num=74

Clean Fuels Outlet Regulation
5

Table 1. List of Commenters

Comment

Number on 

ARB website

Commenter/

Affiliation Link

CFO - L8 John Braeutigam, Valero www.arb.ca.gov/lists/cfo2012/10-

valero_comments_2012_proposed_amendments_to_the

_clean_fuels_outlet_regulation.pdf

CFO - L15 Daniel Sinks, Conoco 

Phillips

www.arb.ca.gov/lists/cfo2012/21-

conocophillips_comments_1_2012_cfo__hearing.pdf

CFO - L26 Cathy Reheis-Boyd,

Western States 

Petroleum Association

http://www.arb.ca.gov/lispub/comm/bccomdisp.php?listna

me=cfo2012&comment_num=34&virt_num=26

CFO - L27 Miles Heller,

British Petroleum

www.arb.ca.gov/lists/cfo2012/35-

bp_comments_to_carb_for_clean_fuel_outlet_regulation

_-_final_1-25-2012.pdf

Transcript Edward Olson, Jay 

Bajaria

http://www.arb.ca.gov/board/mt/2012/mt012712.pdf

ZEV/CFO

Bd - L1

Cathy Reheis-Boyd,

Western States 

Petroleum Association WSPA Comments 

CARB Board Hearing I 

LEV III – L9 Loren Marz Comment and Response

9-1 The commenter expresses that “While fully supporting the spirit of the proposed 

LEV III Regulation, it doesn’t appear that the impacts of a significant shift to 

“ZEV” technology such as electric vehicles (EV) have been fully considered.” 

According to a National Academies report (National Academies, "Hidden Costs of 

Energy: Unpriced Consequences of Energy Production and Use.")...

"...Electric vehicles and grid-dependent (plug-in) hybrid vehicles showed 

somewhat higher nonclimate damages than many other technologies for both 

2005 and 2030. Operating these vehicles produces few or no emissions, but 

producing the electricity to power them currently relies heavily on fossil fuels; 

also, energy used in creating the battery and electric motor adds up to 20 percent 

to the manufacturing part of life-cycle damages...."

ARB prepared an EA for the proposed ACC Program (Appendix B) in accordance 

with CEQA and its certified regulatory program. The EA analyzes the potential 

environmental impacts associated with the reasonably foreseeable compliance 

responses of the regulated community. Discussions related to increased 

electricity charging infrastructure and demand is located on pages 125 and 126 
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of Appendix B. ARB found that the charging of battery electric vehicles (BEVs)

and transitional zero emission vehicles (TZEVs) has the potential for both

positive and negative effects to the electric grid for which timing of charging is a 

key determining factor. For residential charging, the general case is that the 

vehicle will begin charging after it arrives at home and is plugged in, typically 5-6 

p.m.; however, only about 12 percent of vehicles arrive home during this hour, 

leading to a distribution of charging onset times. This results in an effective peak 

charging load of about 700 watts per vehicle. Thus, while residential charging 

power levels vary from about 1.4 to 7.7 kilowatts, the average effect of a single 

vehicle on the electric system is far lower. There are significant efforts underway 

to alter the load shape generated by vehicle charging, whether by use of 

electricity pricing incentives, actively managed or smart charging, or onboard 

programming of charging times. These would have the effect of moving the load 

off the peak. At a system level, due to diversity, the electricity demand of these 

types of vehicles is relatively low, resulting in minimal effects to utility generation 

and transmission assets, particularly in the near term. According to the Electric 

Power Research Institute, the potential stresses on the electric grid can be 

avoided through asset management, system design practices, and managed 

charging to shift a significant amount of the load away from system peak (Electric 

Power Research Institute 2011). Please also refer to response LEV III – L34-1.

LEV III – L10 Klaus Land, Mercedes-Benz Comment and Response

10-1 The commenter expresses that “ARB staff is proposing a new US06 PM 

Standard of approx. 90% reduction. Due to very short notice industry is still trying 

to determine the possibility to reach this extremely low standard. Where we and 

also independent research institutes have concerns is the effect this standard will 

have on new technologies, especially low-powered, downsized engine 

technologies and range extenders that will be necessary to meet the new Green 

House Gas standards. Recent vehicle testing has shown that these PM 

standards are not achievable for vehicles with these new technologies. We 

recommend a PM standard for passenger cars and light duty trucks of 25 mg/mi 

or as an alternative a SFTP standard of 10 mg/mi composite. This composite 

formula is also used for other limited criteria pollutants in the LEV III regulation. 

Real world data from EPA and industry show that US citizen don’t drive like the 

US06 test cycle and therefore there is no negative impact on the environment if 

ARB will agree to this proposal. On the other side the CO2 benefit will be 

extremely high by bringing low powered vehicles into the US market as they are 

available in the European Union with more than 20 different models.”

Although this comment does not directly relate to the adequacy of the EA 

prepared for the proposed ACC Program, and therefore, no written response is 

required in accordance with ARB’s certified regulatory program at CCR section 

60007, subdivision (a), this comment is responded to in this document because 

it mentions potential impacts on the environment. 
7

The SFTP PM standards were based on testing of a wide range of vehicles, 

which showed that, even at high mileage on some older vehicles with gasoline 

direct injection (GDI), there is no evidence that manufacturers will have difficulty 

meeting the proposed 10 mg/mi standard. Although Mercedes-Benz has raised 

the concern that potential future vehicles with low power-to-weight ratios may not 

be able to meet the proposed standard, based on testing at ARB facilities and 

discussions with other manufacturers, staff firmly believes that with properly 

designed engines the 10 mg/mi standard is achievable, even considering powerto-weight ratios. Therefore, staff does not support Mercedes Benz’s 

recommended alternate standards which would loosen their stringency. 

Additionally, data shows that vehicles in the real world are sometimes driven in 

the aggressive manner accounted for by the US06 cycle. For this reason, staff 

believes that the US06 cycle is appropriate. 

LEV III – 15-Day - L11 Ray Minjares, International Council on Clean Transport 

Comment and Response

11-1 The commenter expresses that “Under the proposed scheme, a manufacturer 

would be permitted to introduce no more than 22% of new vehicles meeting a 3 

mg/mi standard in the year 2020, as opposed to the 70% that would be required 

under the current phase-in schedule. In addition, an automaker may choose to 

meet this with essentially no change to existing vehicle or engine technology until 

2021. Even more, an automaker would be permitted to introduce higher emitting 

vehicles in each of the five years leading up to 2021. These vehicles would be 

permitted to emit as much as 10 mg/mi, which some gasoline direct injection 

engines could approach1. In a worst-case scenario, the proposed alternative 

compliance scheme could result in a significant net increase in particulate 

emissions compared with the current phase-in schedule.

Although this comment does not relate directly to the adequacy of the EA or its 

impact analysis, this comment is being responded to in this document because 

the commenter asserts that there may be an increase in criteria pollutant 

emissions as a result of the Alternative Compliance Phase-in provision. The 

Alternative Compliance Phase-in is designed to provide equivalent emissions 

reductions, and an increase in emissions is highly unlikely. However, in fall of 

2012, when a National greenhouse gas program is in place, ARB will revisit the 

Alternative Particulate Phase-in provision, and clarify that 100 percent 

compliance is required for the final year of phasing.

LEV III – L29 Chris Bliley, Growth Energy Comment and Response

29-1 The commenter expresses that “...CARB and the EPA have long recognized that 

vehicle technology and the fuel employed with that technology need to work in 

concert as an integrated “system” so that vehicles can operate efficiently and 

achieve the lowest technologic(ally) emission targets. We believe that CARB did
8

not completely examine the impact of fuel parameter changes that could enable 

additional engine technologies to improve efficiency and ultimately improve 

engines. Specifically, we are recommending one new fuel for vehicles model 

year 2017 and later (in addition to legacy FFVs) with an octane rating of 94 

accomplished with a 30 percent blend of ethanol (E30). This new fuel used in 

conjunction with new engine technologies would provide even more clean air 

benefits than CARB is currently proposing. CARB is obligated by the California 

Government Code, the California Environmental Quality Act, and the California 

Health and Safety Code to propose and adopt only those regulations that 

maximize public benefits, minimize public and private costs, and afford maximum 

protection to the environment in a cost-effective manner. Those requirements 

can only be met by reducing vehicular emissions through new fuel standards.”

The commenter advocates a new fuel standard to reduce vehicular emissions 

that falls outside the scope of the proposed ACC Program analyzed in the EA. 

The EA was prepared for the ACC Program in accordance with ARB’s certified 

regulatory program and CEQA. This comment and a response is included in this 

document because it mentions the California Environmental Quality Act. 

However, this comment does not directly relate to the adequacy of this EA 

prepared for the proposed ACC Program, therefore, no further written response 

is required in accordance with ARB’s certified regulatory program at Title 17 CCR 

section 60007, subdivision (a). Please refer to the FSOR prepared for the LEV III

regulation for staff response as to why this recommendation is rejected.

LEV III – L34 Azita Khalili, BMW Comment and Response

34-1 The commenter expresses that “Upstream Emissions – Proper Allocations of 

Responsibilities ARB’s view is not justified, that within a national context there 

are expected to be significant lower shares of electric and fuel cell vehicles than 

in California and higher national grid GHG emissions, and therefore any non-zero 

upstream crediting serves as a lesser relative incentive for BEV and PHEV than 

the proposed ARB GHG crediting based on California’s low-GHG grid. 

Manufacturers are not able to influence the grid mix and therefore differentiating 

between CARB States and the others in regard to upstream emissions should be 

avoided. Every such vehicle needs to be counted as zero upstream emissions. 

Any crediting above zero is a disincentive.

It is a principle question whether automakers are responsible for inclusion of 

upstream emissions in the compliance calculations or not, and this question is 

independent from the emission level of the electricity grid. BMW accepts the 

responsibility of car makers for the vehicle efficiency by which their products use 

energy – no matter which fuel or energy source. But manufacturers have no 

control over the carbon content of electricity generation and cannot be held 

responsible for energy mix decisions made decades ago.
9

While is also acknowledged that the upstream impact of electricity generation 

needs to be addressed politically at the point of responsibility in order to ensure 

the credibility of a policy supporting the electrification of road transport, strategic 

decisions to be taken by car manufacturers for the decades to come should not 

be burdened by past decisions taken in other sectors: If upstream emissions

would be allocated, the comparative advantage of electric vehicles dwindles. 

Clean Diesel in this case may achieve similar GHG emission reduction results at 

a much lower costs. The attractiveness of electric vehicles for vehicle 

manufacturers would significantly decrease. Therefore, BMW continues to 

maintain that electric vehicles on the merits of the own carbon use, should be 

counted as zero grams-per-mile vehicles in the greenhouse gas regulations for 

2017-2025.” Please see the comment letter shown above for other issues 

raised. 

Although this comment does not directly relate to the adequacy of the EA 

prepared for the proposed ACC Program, and therefore, no written response is 

required in accordance with ARB’s certified regulatory program at CCR section 

60007, subdivision (a), this comment is responded to in this document because it 

mentions a potential impact on emissions. The principle difference between 

California’s program and U.S. EPA’s is the ZEV mandate. Whether or not 

inclusion of upstream emissions of ZEVs will act as a disincentive to the 

manufacturers is irrelevant. The mandate requires a certain percentage of these 

vehicles to be marketed in California and the177 states, regardless of how 

manufacturers choose to comply with California’s GHG standards. Regarding 

the emission impact, under the California program any upstream emissions from 

ZEVs have to be offset by lower emissions from non-ZEVs. Therefore, removing 

the requirement would result in higher emissions in California. The LEVIII Staff 

Report indicates that ARB staff is proposing to credit electric- and hydrogenpowered vehicles according to their incremental emission impact from Californiaspecific low-GHG upstream energy sources that are most likely in the timeframe 

of the regulation. Advanced electric-drive vehicles, including plug-in hybrid 

electric vehicle, battery electric vehicle, and fuel cell electric vehicle technology, 

can be driven primarily or entirely without tailpipe CO2 emission emissions. Their 

associated GHG emissions are, instead, upstream from the vehicle at primary 

energy processing facilities, at electricity generation plants, and throughout the 

fuel and electricity distribution network. In order to structure the GHG program 

for the long-term for a diversity of vehicle fuel types, the regulation proposes the 

implementation of standards that incorporate the relative GHG emissions from 

battery electric vehicle, plug-in hybrid electric vehicle, and fuel cell electric 

vehicle technologies as compared to the conventional vehicles that primarily 

utilize gasoline. The intent then is to establish straightforward performancebased GHG emission provisions that accurately count the upstream emissions in 

a technology-neutral way that provides industry certainty to plan for GHG 

requirements as these more advanced ultra-low-GHG technologies enter the 

market.
10

Staff notes that its proposed crediting provision for battery-electric vehicle, plugin hybrid electric vehicle, and fuel cell electric vehicle technology differs from the 

expected federal U.S. EPA GHG regulatory program. However, as directed by 

the Board in Resolution 12-11, staff “...will return to the Board with a new 

regulatory proposal to accept compliance with the 2017 through 2025 model year 

National Program as compliance with California’s greenhouse gas emission 

standards in the 2017 through 2025 model years, if the Executive Officer 

determines that U.S. EPA has adopted a final rule that at a minimum preserves 

the greenhouse reduction benefits set forth in U.S. EPA’s December 1, 2011 

Notice of Proposed Rulemaking for 2017 through 2025 model year passenger 

vehicles.” Accordingly, staff intends to propose two compliance options: (1) an 

automaker chooses to comply directly with California’s standards including 

upstream accounting as specified here or (2) an automaker chooses to comply 

with the federal U.S. EPA standards; utilizes the federal accounting provisions for 

battery electric vehicle, plug-in hybrid electric vehicle, and fuel cell electric 

vehicle technologies in the federal standards; and receives the same federal 

accounting for these technologies within the California regulation. Staff believes 

that, consistent with their comments on the ACC program, manufacturers will 

ultimately choose compliance with the National Program, rendering the upstream 

emission issue moot.

Staff’s non-zero-emission accounting for these technologies’ incremental 

upstream emissions is justified for several reasons. Primarily, the ZEV regulation 

already requires electric-drive vehicles in California, therefore obviating the need 

for special artificial crediting incentives. In addition, ARB’s proposed GHG 

crediting more accurately depicts the science regarding known GHG impacts, 

more adequately sets the precedent for a future with increasingly more 

alternative fuel vehicles for 2025 and beyond, more assuredly protects against 

the environmental repercussions of foregone GHG emissions allowed from 

battery electric vehicle emission incentives, and better continues ARB’s objective 

in keeping its performance standards technology-neutral. In addition, this 

accounting reflects California’s purpose and intent to evaluate and reduce all 

GHG emissions – beyond tailpipe CO2 – from all principal phases of passenger 

motor vehicle powering and use. 

ARB’s position on incorporating the incremental upstream emissions of electric 

and hydrogen fuel cell vehicles is further justified by several California-specific 

details that are different from the national US situation. The greater deployment 

of these advanced technologies in California fundamentally differentiates the 

State from the US context. The California ZEV regulation as proposed for 

amendment mandates that over 10% of the new vehicle fleet be some form of 

battery electric vehicle, plug-in hybrid electric vehicle, or fuel cell electric vehicle 

technology in 2025. In addition, California has complimentary programs (e.g., 

Low Carbon Fuel Standard and Renewable Portfolio Standard) that reduce 

upstream GHG emissions over time, rigorously track these emissions, and 

provide the basis for accurate GHG emissions accounting. According to staff’s

analysis, for California’s relatively low-GHG electricity and hydrogen, these ZEV-
11

type vehicles will achieve very low GHG emission ratings and therefore would 

naturally achieve substantially lower GHG emissions than any other known 

vehicle technologies (e.g., hybrids) by a large margin without artificial incentives.

Nevertheless, staff notes that accepting federal compliance (i.e., with federal 

upstream crediting incentives) remains valid, owing to the 50-state GHG 

reduction benefit greatly outweighing the California-alone GHG standard 

compliance, thus achieving additional emissions reductions benefiting California. 

Please also refer to response to LEV- III L9-1.

LEV III – L38 Katherine Yehl, Volvo Car Corporation Comment and Response

38-1 The commenter expresses that “Higher octane fuel would enable manufacturers 

to pursue strategies that better support development and introduction of advance 

vehicle technologies, and a consequent reduction in greenhouse gases and 

criteria emissions. To optimize engine fuel efficiency and minimize emissions, 

transitioning to higher octane regular and premium grade market gasoline may 

be necessary. VCC would support establishment of a minimum blend stock 

octane. In this way, adding ethanol would raise fuel octane without risk that 

blenders would make corresponding reductions in base blend stock octane, 

thereby undoing the octane benefit of ethanol addition. We recommend the 

Board direct staff to assess the environmental benefits of higher octane 

gasoline.”

Although this comment does not directly relate to the adequacy of the EA 

prepared for the proposed ACC Program, and therefore, no written response is 

required in accordance with ARB’s certified regulatory program at CCR section 

60007, subdivision (a), this comment is responded to in this document because it 

mentions potential environmental benefits. Staff designed the certification fuel to 

be reflective of the current in-use fuel. According to the EIA , in California, 

among the total 5.4 million gallons per day of gasoline sold to end users in May 

2011, 4.2 million gallons per day of gasoline (77%) were regular (87 AKI), 500 

thousand gallons per day of gasoline (9%) were mid-grade (89 AKI), and 800 

thousand gallons per day of gasoline (14%) were premium (91 AKI). Therefore, 

the certification fuel is designed around an 87 AKI and for those vehicles that 

have a warranty that requires 91 AKI, ARB allows for the vehicle to be tested 

using the certification fuel at 91 AKI.

The Department of Measurement Standards regulates octane level for in-use 

fuels. Octane is considered a consumer protection issue to prevent knocking 

and poor vehicle performance. ARB does not and has not regulated octane in 

gasoline because there is no evidence to suggest that octane affects emissions 

in and of itself. Staff is unaware of any studies that have been designed to 

isolate octane as an independent effect. It is very difficult to isolate octane at the 

same composition and volatility levels.
12

Increasing octane would; however, provide a CO2 benefit if the vehicle was 

designed to take advantage of it; but it may not have an accompanied criteria

pollutant benefit. Since the vehicle modeling supporting the proposed ACC 

Program was conducted on octane levels of current commercial gasoline, 

increased octane fuel is not needed to meet the proposed standards. In addition,

because commercial gasoline specifications were not part of the regulatory 

package, the commenter’s proposal is out of the scope of this rulemaking.

ZEV – L2 Dan Mars Comment and Response

2-1 The commenter expresses that “I am very much in favor of feebates to 

encourage the use of plug-in hybrid, and all-electric vehicles. Charge a fee for 

inefficient vehicles and use that money to give rebates to buyers of clean

vehicles that plug-in. There are many advantages for the individuals as well as 

society as a whole.” 

This comment and a response is included in this document because the 

commenter advocates a feebate program as an alternative. The EA prepared for 

the proposed ACC Program analyzed a feebate regulation as a potential

alternative. Although it was considered, it was rejected as infeasible (see page

196 of Appendix B). A feebate is a new car pricing scheme where consumers 

who purchase high-emitting vehicles would pay an extra fee that would be used 

to fund rebates to consumers who purchase low-emitting vehicles. ARB

sponsored research on the potential benefits of a feebate program for new 

vehicles and eliminated it as an option for a number of reasons. First, given the 

aggressive performance standards proposed for new vehicles, the additional 

reductions that could result from a feebate program are likely to be minimal. 

Manufacturers would already need to install all available, cost-effective emissionreducing technology, as well as adopt their own internal pricing strategies to 

comply with the standards. A feebate program would replace this internal pricing 

strategy and would only induce substantial, additional emission reductions if fees 

and rebates were very high, leading to greater impacts on consumers. 

Furthermore, a California-only program within a national market could result in 

more higher emitting vehicles being sold out of state and negating any in-state 

emission reductions. In terms of implementation, maintaining a revenue-neutral 

regulation would likely be a significant challenge given that vehicle purchase 

behavior would vary based on current economic conditions, but fee and rebate 

levels would need to be set in advance. More importantly, ARB may not have 

the legal authority to pursue feebates and could face challenges similar to 

pursuing a carbon fee or tax. In addition to legal opposition, there may be public 

opposition because some consumers would have to pay more for new vehicles. 

The administration of a feebate program would require ARB to collect revenues 

and then disperse funds. ARB may need additional authority from the 

Legislature to both disperse funds and collect feebate revenues. Consequently, 

in light of the legal and administrative challenges for minimal emissions 

reductions, ARB did not pursue the further evaluation of this alternative. 
13

Of note, the ARB’s Clean Vehicle Rebate Project (CVRP), funded through the AB 

118 Air Quality Improvement Program, provides funding for consumer rebates of 

up to $2500 for zero-emission and plug-in hybrid light-duty vehicles. As of 

January 2012, the CVRP has provided rebates for over 4700 vehicles totaling 

about $17 million. More information on the CVRP may be found on ARB’s 

website at http://www.arb.ca.gov/msprog/aqip/cvrp.htm.

ZEV – L74 Loren Marz Comment and Response

74-1 The commenter expresses that “While fully supporting the spirit of the proposed 

LEV III Regulation, it doesn’t appear that the impacts of a significant shift to 

“ZEV” technology such as electric vehicles (EV) have been fully considered.” 

According to a National Academies report (National Academies, "Hidden Costs of 

Energy: Unpriced Consequences of Energy Production and Use.")...

"...Electric vehicles and grid-dependent (plug-in) hybrid vehicles showed 

somewhat higher nonclimate damages than many other technologies for both 

2005 and 2030. Operating these vehicles produces few or no emissions, but 

producing the electricity to power them currently relies heavily on fossil fuels; 

also, energy used in creating the battery and electric motor adds up to 20 percent 

to the manufacturing part of life-cycle damages...."

Please refer to response for LEV III - L9-1. 

CFO – L8 John Braeutigam, Valero Comment and Response

8-1 The commenter expresses that “The ISOR overlooks the environmental and 

safety impacts associated with hydrogen fuel manufacture and supply. The 

proposed CFO revisions will just raise cost to all California consumers with little 

or no benefit. There are still emissions when hydrogen is produced and 

electricity generated, they are just not at the tailpipe. Further, the ISOR is 

dismissive of the risks associated with onsite hydrogen storage, fueling and 

perhaps manufacture.”

ARB disagrees. Contrary to the commenter’s concerns, the EA for the proposed 

ACC Program (Appendix B), which ARB prepared in accordance with CEQA and 

its certified regulatory program, both evaluates environmental and safety impacts 

that may be associated with hydrogen fuel manufacturing, supply, storage, and 

fueling. 

The EA analyses potential environmental impacts associated with the reasonably 

foreseeable compliance responses of the regulated community. Chapter 3 of the 

EA provides a discussion of the existing physical conditions and the regulatory 

framework relevant to each environmental resource area potentially affected by 

the proposed ACC Program. The chapter includes a section pertaining to 

hazards. This section describes characteristics of hazardous materials as toxic 
14

(causes human health effects), ignitable (has ability to burn, such as hydrogen), 

corrosive (causes severe burns or damage to material and reactive (causes 

explosions or generates toxic gases). California’s hazardous waste regulations 

provide the means to determine whether or not a waste is hazardous. The 

section also provides a table of applicable federal and state laws and regulations 

governing hazards and hazardous materials.

Chapter 4 of the EA describes the foreseeable regulated community compliance 

responses, and includes discussions related to hydrogen supply and the potential 

for modification of hydrogen production plants. This section discloses that 

modification of existing hydrogen production plants may be necessary to 

accommodate an increase in demand. The EA indicates that using the fast-rate 

scenario for FCVs entering the vehicle fleet, the total hydrogen demand when the 

10,0000 FCV trigger is activated in the South Coast Air Basin could represent 1.1 

percent of the hydrogen supply in that area. Under the same fast-entry scenario, 

total statewide demand in 2020 would represent 3.9 percent of the merchant 

hydrogen supply, and in 2024, it could represent 9.2 percent. The EA also 

indicates that once the statewide demand for hydrogen reaches 3.5 million 

kilograms per year, the California standards for hydrogen will be in place, which 

require that 33 percent of the hydrogen that is produced for transportation be 

made from eligible renewable resources (CPUC Code Section 399.12) This 

requirement will eventually present a business case for the construction of new 

hydrogen plants that produce hydrogen from renewable resources.

Chapter 5 of the EA provides a programmatic impact and mitigation analysis, 

using the CEQA Checklist as a tool for determining whether an impact may 

result. It describes potential impacts associated with the entire ACC program 

and includes a discussion of construction of new facilities or modification of 

existing facilities, which may include hydrogen production plants. Such actions 

would be subject to site-specific analysis under CEQA. As for emissions related 

to hydrogen production, those emissions would be regulated by the local air 

district.

CFO – L15 Daniel Sinks, Conoco Phillips Comment and Response

15-1 The commenter expresses that “ConocoPhillips also is a member of the Western 

States Petroleum Association (WSPA) and supports the comments submitted by 

WSPA for this hearing and rulemaking. Rather than repeat WSPA's detailed 

comments here, we incorporate them by reference into this letter. 

ConocoPhillips specifically opposes the proposed modifications to the CFO 

regulation that shifts the burden of motor fuel hydrogen infrastructure on to major 

refiner/importers of gasoline for the following reasons. 

Legal Authority 
15

As described in detail by WSPA in its comments, if amended as proposed the 

CFO regulation will violate several laws and/or legal authorities: 

• the U.S. Constitution (both the Takings Clause of the Fifth Amendment as 

applied to the states via the Fourteenth Amendment and the Commerce 

Clause); 

• the requirement of an administrative agency to remain within the scope of 

its statutory authority and not promulgate rules ultra vires; 

• Proposition 26; and 

• CEQA.”

Please refer to responses CFO – L26. Regarding the statement that the CFO 

Regulation violates CEQA, ARB disagrees. ARB prepared an EA for the 

proposed ACC Program (Appendix B) in accordance with CEQA and its certified 

regulatory program. The EA analyses potential environmental impacts 

associated with the reasonably foreseeable compliance responses of the 

regulated community, identified mitigation where impacts were identified, and 

analyzed a reasonable range of alternatives. CEQA does not preclude ARB from 

pursuing a regulation that improves air quality in California or determining an 

appropriate regulated community. See also responses to this comment provided 

in the FSOR prepared for CFO regulation.

CFO – L26 Cathy Reheis-Boyd, Western States Petroleum Association Comment 

and Response

26-1 The commenter expresses that “ARB Failed to Properly Comply with CEQA. 

As ARB recognizes, the California Environmental Quality Act (CEQA) requires a 

study of environmental impacts before adopting regulations such as the 

proposed amendments to the Clean Fuels Outlet (CFO) regulation. It is wellsettled that, even when an agency adopts a rule to protect or improve the 

environment, any adverse side-effects must be evaluated under CEQA. 

ARB has adopted its own procedures for CEQA compliance under its certified 

regulatory program, but still must satisfy the fundamentals of the statute. Thus, 

ARB must identify potentially significant impacts, consider mitigation measures 

and a reasonable range of alternatives to avoid or reduce such impacts, and 

consider and respond to comments from the public and other agencies. Finally, 

ARB must adopt mitigation measures or alternatives unless they are infeasible 

and overriding benefits justify adopting the regulation despite its significant and 

unavoidable impacts.

To comply with CEQA, ARB’s Initial Statement of Reasons (ISOR) for the CFO 

amendments includes Appendix B, a draft Environmental Analysis (EA) prepared 
16

as the functional equivalent of an Environmental Impact Report. The air quality 

evaluation in the EA is supported by ISOR Appendix D, an Emission Impact 

Analysis (EIA). However, the EA and EIA are seriously flawed and cannot be 

relied on to satisfy ARB’s CEQA obligations.”

This comment provides a general introduction to commenter’s more specific 

comments that follow. ARB disagrees with the comment that ARB failed to 

properly comply with CEQA and with the commenter’s statement that the EA and 

EIA cannot be relied upon to satisfy ARB’s CEQA obligations. ARB prepared an 

EA for the proposed ACC Program (Appendix B) in accordance with CEQA and 

its certified regulatory program. The EA analyses potential environmental 

impacts associated with the reasonably foreseeable compliance responses of the 

regulated community. Chapter 3 of the EA provides discussion of existing 

conditions and the regulatory setting for each of the resource areas potentially 

affected by the proposed ACC Program. Chapter 5 of the EA provides a 

programmatic impact and mitigation analysis, using the CEQA Checklist as a tool 

for determining whether an impact may result. Please refer to the following L26 

responses for specifics regarding CEQA compliance and the purported flaws in 

the EA. 

26-2 The commenter expresses that there was “Failure to Fully Disclose 

Programmatic Impacts. Throughout the EA, ARB finds that local authorities will 

conduct future project-level CEQA review when approving and issuing permits for 

individual hydrogen fueling station projects. Through project-level review, the 

local agencies will be responsible for implementing ARB’s recommended 

mitigation measures and others that they may identify and incorporate in permit 

conditions. While expecting that local authorities will do so, ARB cannot be 

certain that mitigation which is beyond its control will be implemented 

successfully. Accordingly, the EA finds such impacts to be potentially “significant 

and unavoidable”, though justified by the benefits of the CFO rule. Although in 

general this “programmatic” or “tiered” approach is authorized for CEQA review 

at the rulemaking stage, the EA takes the tiered approach too far.

Even impacts that are significant and unavoidable at the programmatic stage 

must be fully disclosed, to provide a meaningful opportunity for the public to 

comment and to propose further feasible mitigation measures. Such issues also 

must be fully disclosed to enable informed decision-making, a central objective of 

CEQA. The ARB Board is responsible for considering and balancing benefits 

and adverse side-effects in deciding whether to adopt the CFO amendments. 

For each significant and unavoidable impact, ARB must find “overriding 

considerations”, i.e., that specific benefits outweigh each adverse side-effect. 

But overriding considerations cannot be legally or factually supportable if the 

decision-makers have insufficient information to understand the extent of the 

side-effects they are deciding to accept. Weighing benefits and impacts is 

impossible when the impact side of the balance is insufficiently disclosed. In 

short, programmatic “significant and unavoidable” determinations are not a shield 

for the casual narrative evaluations and conclusions throughout the EA.” 
17

Appendix B is an environmental analysis prepared as in accordance with Public 

Resources Code section 21080.5, subdivision (d)(3) and ARB’s regulations at 

CCR sections 60005 through 60007. The programmatic approach to the analysis 

is informed by CEQA Guidelines section 15168, which describes the parameters 

for a program EIR. Section 5 of Appendix B (Impact Analysis and Mitigation) 

discloses impacts to the resource areas identified on the CEQA checklist. 

The commenter acknowledges that CEQA authorizes a programmatic approach 

and indicates that ARB takes the tiered approach “too far” but is not specific as to 

which resource area impacts are insufficiently disclosed. The EA discloses 

potential environment impacts related to the foreseeable compliance responses 

by the regulated community on a statewide level, and identifies mitigation. The 

level of specificity required in an environmental analysis depends on the degree 

of specificity of the activity under review. For example, an EIR for a construction 

project must be more specific and detailed than an EIR for a general plan or 

other general policy. An EIR for a policy or plan focuses on the indirect 

secondary effects of that plan or policy and cannot be as detailed as a 

subsequent EIR on the specific construction projects that are expected to follow. 

(See CEQA Guidelines section 15146, sub (b).) ARB’s preparation of the EA for 

the ACC Program is similar to the approach for an EIR prepared for a plan or 

policy. In preparing the EA for the ACC Program, ARB cannot speculate about 

details that will be provided in any subsequent project specific environmental 

analyses. 

ARB’s programmatic approach to its analysis on the potential indirect impacts 

related to the regulated communities’ foreseeable compliance responses is 

necessarily general, programmatic and qualitative in nature. A more detailed 

analysis is not reasonably feasible because it is unknown what specific future 

actions will be and any site-specific impacts cannot be known and assessed with 

any level of specificity at this time. Therefore, details of project level impacts are

properly deferred to future project level review when those details can be known.

This is an appropriate approach under CEQA. (See In re Bay-Delta 

Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 

Cal.4th 1143.)

When potentially significant environmental impacts are identified in the EA, 

feasible mitigation measures have been presented to substantially reduce the 

effects. As stated in the EA, ARB does not possess the authority to require 

project-specific mitigation measures for facilities approved by other land use or 

permitting agencies if impacts are identified for those projects. Because the 

authority to determine project-level impacts and require project-level mitigation 

lies with the land use and/or permitting agency for individual projects, and

project-specific details about the impacts and mitigation cannot be known at this 

stage, there is inherent uncertainty in the degree of impacts identified and 

mitigation ultimately implemented. Consequently, the EA took the conservative 

approach in its analysis of potential impacts and in its post-mitigation significance 

conclusions (i.e., tending to overstate impacts) and, for CEQA compliance 
18

purposes, discloses that potentially significant impacts related to the 

development of fueling stations and new or modified manufacturing facilities may 

be significant and unavoidable. ARB expects, however, that as the proposed 

ACC Program is carried out, these significant impacts can and should be 

resolved and reduced to insignificance by other government agencies, in 

accordance with their authorities and project review procedures

26-3 The commenter states that there is “Over-Reliance on Future Project-Level 

CEQA Review. Moreover, in following the programmatic approach, the EA relies 

heavily on project-level CEQA review that supposedly will be conducted by local 

agencies undertaking or permitting individual hydrogen fueling facility projects. 

However, it is quite likely that many local agencies will conduct no CEQA review 

at all. On an individual basis – especially if ARB is correct in assuming that most 

new hydrogen fueling station projects will be located at existing gas stations –

many of these small projects will be exempt from CEQA, under the categorical 

exemption for minor alterations to existing facilities or other exemptions. Yet 

ISOR Table IV-2b (p. 50) projects that over 450 new stations will be required 

under the CFO rule. Of course, capturing impacts that are insignificant for each 

project considered separately, but significant when nearly five hundred projects 

are considered together, is the purpose of cumulative impacts analysis under 

CEQA.” 

Appendix B acknowledges that the proposed ACC Program could result in the 

construction and operation of over 100 new hydrogen fueling stations, along with 

modifications to existing hydrogen production plants. The EA found that these 

would likely occur within existing footprints or in areas with consistent zoning. 

The EA includes a Cumulative Impacts section in Chapter 6, which analyzes the 

potential for cumulative impacts for resource topics. These are disclosed in 

general qualitative terms as they pertain to reasonably foreseeable compliance 

responses because of the programmatic nature of the EA. See response to 

Comment 26-2. As with all of the environmental effects and issue areas, the 

precise nature and magnitude of impacts will depend on the types of projects 

associated with implementation of the proposed ACC Program, their locations, 

their aerial extent, and a variety of site-specific factors that are not known at this 

time but that would be addressed by environmental reviews at the project-level. 

The commenter indicates, it is “...quite likely that many local agencies will 

conduct no CEQA review at all. On an individual basis new hydrogen fueling 

station projects that would be located at existing gas stations may be exempt

from CEQA, under the categorical exemption for minor alterations to existing 

facilities or other exemptions.” The commenter attached documents to 

demonstrate this point including two Notices of Exemption and a mitigated 

negative declaration. These submissions support finding that impacts from such 

projects are insignificant and do not contradict the conclusions in the EA even 
19

though the EA took a conservative approach to determining potential impacts at 

this programmatic level. 

The commenter also expresses that “the EA does acknowledge impacts to be 

addressed by local agencies as significant and unavoidable: 

Because the authority to determine project-level impacts and require 

project-level mitigation lies with the land use and/or permitting agency for 

individual projects, and programmatic analysis does not allow projectspecific details of mitigation, there is inherent uncertainty in the degree of 

mitigation ultimately implemented to reduce the potentially significant 

impacts. Consequently, this EA takes the conservative approach in its 

post-mitigation significance conclusions (i.e., tending to overstate impacts) 

and, for CEQA compliance purposes, discloses that potentially significant 

impacts related to the development of fueling stations and new or modified 

manufacturing facilities may be significant and unavoidable.

ISOR App. B, p. 8. Nevertheless, the EA reassures the public and decisionmakers that: 

ARB expects, however, that as the proposed ACC Program is carried out, 

these significant impacts can and should be resolved and reduced to 

insignificance by other government agencies, in accordance with their 

authorities and project review procedures. 

Id. This reassurance is hollow, however, since the EA does not disclose 

to the public and decision-makers the extent to which local agencies can 

be expected to rely on categorical exemptions and not consider CEQA 

mitigation in the first place. Thus, rather than being conservative, the EA 

hides the true magnitude of anticipated significant and unavoidable 

impacts. If unmitigated through project-level review due to CEQA 

exemptions, the adverse impacts will be greater than the EA admits. This 

error also further undercuts the basis for overriding considerations, since 

the adverse impacts side of the balance is understated by assuming more 

project-level mitigation than can reasonably be expected.” 

The commenter asserts that the EA hides the true magnitude of anticipated

significant and unavoidable impacts, apparently by not disclosing the extent to 

which local agencies can be expected to rely on categorical exemptions. The 

commenter states that local agencies can be expected to rely on CEQA 

categorical exemptions for particular fueling stations and that the reliance on 

categorical exemptions somehow results in impacts because no mitigation is 

considered when an exemption is used, and therefore, these projects will result 

in cumulative impacts. The commenter submitted several references during the 

45-day public comment period, including copies of Notices of Exemptions and a 

Mitigated Negative Declaration for hydrogen fueling stations. The categorical 

exemptions submitted are under CEQA Guidelines sections 15301(e) and 15302 
20

because the facilities were preexisting and the projects were considered 

ministerial under a public agency’s statutes and ordinances. Public Resources 

Code 21083 and 21084 were also cited in the documents submitted.

Categorical exemptions (found at CEQA Guidelines sections 15300-15329) are 

classes of projects fully exempt from CEQA. These classes of projects are 

identified by the Secretary of Natural Resources as exempt from CEQA because 

the Secretary has found these projects have no significant effect on the 

environment. (See Public Resources Code section 21084, subdivision (a).) A 

project otherwise eligible for a categorical exemption may not claim the 

exemption if “the cumulative impact of successive projects of the same type in 

the same place over time is significant.” (CEQA Guidelines section 15300.2, 

subd. (b).) Therefore, any new hydrogen fueling station projects that might 

otherwise fall under a categorical exemption may not use the categorical 

exemption if the cumulative impact of successive fueling station projects in the 

area is significant. The commenter’s assertion that local agencies will use 

categorical exemptions suggests then there must be no cumulative impacts from 

such facilities or else the exemption is not available for these projects. 

Therefore, commenter’s assertion, and the materials submitted, support a finding 

no cumulative impacts from the building of such facilities and not a finding of a 

greater magnitude of impacts as asserted by commenter. Therefore, the EA’s 

conservative approach, which did not assume the use of categorical exemptions,

does not mask the magnitude of potential impacts as the commenter asserts, but 

instead tends to overstate potential impacts. 

The commenter’s submitted information supports the analysis in the EA and does 

not require a revision to the EA, nor does it trigger the obligation to recirculate the 

EA under CEQA because it does not identify significant new information, as 

defined by CEQA. 

26-4 The commenter expresses that there was “Failure to Consider Available 

Information on Foreseeable Project-Level Impacts. Even at the programmatic or 

first-tier level, CEQA requires evaluation of all issues that are ripe for review, 

where feasible and where information is available. Yet, while claiming that 

extensive analysis must be deferred to the project level, the EA ignores CEQA 

documents for hydrogen fueling projects that are already in place. Although 

some existing hydrogen facilities were approved based on CEQA exemptions, 

CEQA review documents do exist for other projects. Such documents provide 

concrete, readily available information on matters as to which the EA merely 

speculates. 

For example, the City of Burbank prepared a Mitigated Negative Declaration for 

its Hydrogen Fueling Station Project, attached. It is true that some impact 

analyses in Burbank’s Negative Declaration are based on project-specific details 

(e.g., visual impacts of the facility’s profile in the specific setting) not appropriate 

for evaluation at the programmatic stage. Nevertheless, some impact analyses 

in the Negative Declaration provide valuable information on issues inherent to 
21

hydrogen fueling facilities – in particular, on the hazards of hydrogen itself (see 

comment on hazards below). Other impacts likely to be common to hydrogen 

facilities wherever they are located include air emissions, noise, public services 

(including fire protection), and transportation and traffic, from both facility 

construction and operation. 

It is also true that the City of Burbank, after full analysis and disclosure, found 

that all potential impacts could be mitigated to less than significant – but only for 

that individual project. Findings of insignificance are by no means assured when 

scaling up the impacts identified in the Burbank Negative Declaration to over 450 

new hydrogen stations anticipated as a result of the CFO amendments. Yet the 

EA could have analyzed reasonably foreseeable means of compliance by 

considering available information from CEQA documents for existing hydrogen 

fueling facilities. It was ARB’s responsibility to identify and consider such 

available information, but not one such project-level CEQA document is cited in 

the EA references.” 

The commenter asserts that the EA is inadequate because ARB did not cite to 

CEQA review documents for other fuel station projects such as the City of 

Burbank document attached to the commenter’s letter.

ARB is not required by its CRP or CEQA to cite other environmental document in 

the preparation of its EA. It may do so if such documents are helpful.

As noted by commenter, the impact analysis in Burbank’s Negative Declaration is

based on project-specific details. These details are not appropriate for ARB’s 

programmatic level of analysis of the potential impacts of implementation of its 

regulations. As the commenter notes, impacts are specific to each facility and its 

setting. ARB’s EA speaks generally to the general types of impacts that may 

occur (see response to Comment 26-2 for explanation of level of detail 

appropriate for the EA). The commenter asserts that some impacts discussed in 

the Burbank document are likely to be common to hydrogen facilities wherever 

they are located, such as air emissions, noise, public services (including fire 

protection), and transportation and traffic. Contrary to commenter’s assertion, 

the whole focus of the EA analysis was to consider impacts that would be 

common to hydrogen facilities wherever they are located such as air emissions, 

noise, public services (including fire protection), and transportation and traffic 

(see EA Chapter 5 Impacts Analysis and Mitigation).

The Burbank document submitted by commenter does not provide any more 

specific or helpful information than what is already included in the EA about 

potential impacts that would be common to hydrogen facilities. For example, the 

EA analysis of potential air emissions provides a reasonable accounting of the 

types of air quality impacts that could occur with new hydrogen fueling stations or 

modifications to existing facilities (see EA at page 141-152). The EA discloses 

that during the construction phase, air pollutants could be generated, including 

site grading and excavation activities which could generate fugitive PM dust 
22

emissions and exhaust emissions from off-road construction equipment, material 

delivery trips, and construction worker-commute trips. As disclosed in the EA, 

actual emissions can vary as a function of parameters such as soil silt content 

and moisture, wind speed, acreage of disturbance area, and the intensity of 

activity performed with construction equipment. These parameters are specific to 

individual facilities and cannot be known at this time. The Burbank document 

submitted does not provide more detailed information, and is not specific to that 

particular project that could be used to revise the analysis or conclusions in the 

EA.

Furthermore, the documents provided by the commenter demonstrate that such 

projects tend to have less than significant impacts. However, the EA takes the 

conservative approach in its post-mitigation significance conclusions (i.e., tending 

to overstate impacts) and, for CEQA compliance purposes, discloses that 

potentially significant impacts related to the development of fueling stations and 

new or modified manufacturing facilities may be significant and unavoidable. 

ARB expects, however, that as the proposed ACC Program is carried out, these 

impacts can and should be resolved and reduced to insignificance by other 

government agencies, in accordance with their authorities and project review 

procedures. This information supports the analysis in the EA and does not 

require a revision to the EA nor does it trigger the obligation to recirculate the EA 

under CEQA, because it does not provide significant new information, as defined 

by CEQA. 

26-5 The commenter expresses that there was “Failure to Analyze CFO, ZEV and 

LEV III Actions As Separate “Projects. Three separate regulatory actions are 

before ARB: amendments to the CFO regulations and also to the Zero Emission 

Vehicle (ZEV) and Low Emission Vehicle (LEVI III) regulations. These three 

actions are collectively referred to as the Advanced Clean Cars (ACC) Program. 

They are also collectively analyzed in the EA for environmental impacts, as 

though they were a single “project” for purposes of CEQA. See EA, p. 35. 

However, the EA’s characterization of the single “project” is inconsistent with 

ARB’s Notice of Public Hearing to Consider Amendments to the Clean Fuels 

Outlet Regulation (Nov. 29, 2011), which does not propose a single ACC project. 

Instead, the proposed regulatory action in the Notice is a stand-alone action on 

the CFO amendments. The Notice, p. 3, merely notes in passing that the CFO 

project is “part of the Advanced Clean Cars regulatory proposals” – note that 

“proposals” is plural – that are to be heard on the same day. Similarly, ARB’s 

website at http://www.arb.ca.gov/regact/2012/cfo2012/cfo2012.htm lists the CFO 

amendments as a stand-alone proposed regulatory action, and the January 26-

27, 2012 meeting agenda lists three separate, albeit consecutive, public hearings 

rather than one hearing covering three subjects; see 

http://www.arb.ca.gov/board/ma/2012/ma012612.htm.” 

ARB disagrees that the CFO regulation should have a stand-alone analysis. The 

CFO regulation is a complement to the ZEV program, and without it, the ZEV 

targets may not be met. Further, because the ZEV regulation would be flexible in 
23

that manufacturers could fulfill their requirements by marketing hydrogen FCVs, 

as well as other types of vehicles, it cannot be determined ahead of time exactly 

when the CFO regulation would be activated by the regional or statewide trigger 

levels. This is not a case where one regulation should preclude another. The 

proposed ACC Program will result in a fleet of vehicles with supporting 

infrastructure. One cannot occur without the other. 

As for noticing, ARB posted a Notice of for the Staff Reports (Initial Statement of 

Reasons) prepared for the LEV III, ZEV and CFO amendments, which included 

notice of the coordinated analysis of the potential for environmental impacts and 

benefits presented in the Appendix B to each staff report. The EA assesses all 

impacts associated with the entire proposed ACC Program, which is the 

proposed project. The EA describes the project in Chapter 2 of the EA. The 

“project” is the collective and integrated set of proposed regulatory amendments 

that would affect manufacturer design of vehicles and the fueling of a segment 

thereof to meet these ARB regulations, while also meeting other regulatory 

requirements. The regulatory amendments are described in detail for CEQA 

purposes starting on page 33 of the EA. Separately or together, the impact 

analysis related to the CFO regulation would be the same.

The commenter also expresses that “Certainly, it was appropriate for the EA to 

consider the cumulative impacts of the three separate CFO, ZEV and LEV III 

projects. Cumulative impact analysis is the correct means of evaluating the 

effects of past, present and reasonably foreseeable future projects that overlap in 

time and may combine to exacerbate their respective impacts. 

However, nothing in the Notice or the EA states that ARB will only adopt the CFO 

amendments if it also simultaneously adopts the ZEV and LEV III changes. Nor 

does the EA inform the public and decision-makers of the potential environmental 

consequences should ARB choose to separately adopt the CFO amendments. 

Accordingly, the EA does not provide a basis for action on the CEQA “project” 

that is actually proposed.” 

ARB agrees that it was appropriate for the EA to consider the cumulative impacts 

of all regulations in the ACC Program. The EA includes a cumulative 

assessment of impacts on the environment that could result from the incremental 

impacts of a proposed project when added to other past, present, and reasonably 

foreseeable future actions. Such impacts can result from individually minor, but 

collectively significant actions taking place over time. 

The EA provides a detailed description of the project being proposed for 

approval, which includes the three regulatory actions. The project description 

should not be a smaller portion of the entire proposed project being considered 

for approval as the commenter suggests. The EA informs the decision makers of 

the potential environmental impacts associated with the CFO amendments while 

providing an integrated, coordinated impacts analysis of all the proposed ACC 

Program’s amendments. ARB has the authority to define the proposed project. 
24

ARB disagrees that the EA does not provide a basis for action by the Board on 

the proposed ACC Program. The entire ACC has been fully analyzed and the 

Board has the discretion to approve the entire project or some portion thereof.

26-6 The commenter expresses that there was “Lack of Clarity on Numbers of New 

Hydrogen Fueling Stations. A CEQA document must contain a clear, stable and 

complete project description, in order to provide the essential basis for review of 

the project’s impacts. The EA project description, pp. 33-35, describes the CFO 

regulation changes themselves but does not describe the reasonably foreseeable 

means of compliance; i.e., the numbers and locations of new hydrogen fueling 

stations. Not until pp. 131-133 of the EA is the “compliance response” 

discussed. Even here, an example for the South Coast is provided, followed by a 

statement that “Starting in 2016 in the Upper Bound [i.e., fast entry of fuel cell 

vehicles into the California market] Scenario, the number of vehicles statewide 

would exceed the 20,000 statewide trigger requiring the construction of 39 

additional stations.” But that figure is for a single year, without stating the total 

effect of the rule provided. The reader must hunt for that information in the 

ISOR, Table IV-2 on p.50. 

However, even there it is not even clear exactly how many new hydrogen fueling 

stations ARB attributes to the CFO amendments. ISOR Table IV-2b, p. 50, 

includes a column for Total Stations and a column for Total New Stations 

Installed Per CFO under the fast-entry Upper Bound FCV Scenario. In the Total 

New Stations column, 31 stations are indicated prior to the rule and 488 stations 

by 2024, the difference representing 457 new stations attributable to the rule. 

However, the sum of the Total New Stations Installed Per CFO, adding the 

numbers for each year from 2015 to 2024, is 461. This discrepancy is not 

explained in the document. 

The total number of new fueling stations is one of the main drivers of the 

magnitude of CEQA impacts. The failure to clearly disclose the total number of 

stations within the EA does not comport with CEQA’s informational purposes.”

The scenario presented on Table IV-2b includes the assumption that four of the 

hydrogen fueling stations present in 2014 will be decommissioned in the 2015-

2020 timeframe. For example, in the 2015 row on this table nine new stations 

are added bringing the 2015 total to 38, but the total stations in 2014 was 

31. This indicates the assumption that two stations would have been

decommissioned between 2014 and 2015. Staff made the assumption that some 

of the stations currently in operation today or under construction would close in 

this timeframe because of inability to meet increasing fueling demands in the 

future, and that these smaller capacity stations would be replaced by higher 

volume newer stations nearby. 

As for the total number of new fueling stations being one of the main drivers of 

the magnitude of CEQA impacts, ARB disagrees with the commenter’s 

statement that the failure to clearly disclose the total number of stations within 
25

the EA does not comport with CEQA’s informational purposes,. The EA 

appropriately provides a programmatic level of analysis of the potential impacts 

that would be expected from implementation of the proposed regulation. The 

number of stations has little or no bearing on the impact analysis, as each station 

would be subject to local determination of whether there would be adverse 

environmental impacts, or whether the project would be exempt. 

26-7 The commenters expresses that there was “Unsupported Assumptions 

Regarding Locations of New Hydrogen Fueling Stations. The other main driver 

of the magnitude of impacts is the location of the fueling stations. The EA 

downplays location-based impacts, assuming that “new individual hydrogen 

fueling facilities would be constructed at existing public retail gasoline service 

stations that are already managed by the retail branches of the respective 

refiners/importers of gasoline. These locations would also likely be in urban 

areas where they are positioned to serve the most drivers. Thus, it is unlikely 

that new hydrogen fuel outlets would be located at greenfield sites (land not 

previously developed), and that they would be built in locations consistent with 

local zoning.

EA, p. 133. Nothing in the proposed CFO amendments requires this result and 

the EA cites no evidence to support these assumptions. Instead, since the 

existing CFO regulations would have directly required gas station owners and 

operators to locate facilities on their property, ARB simply assumes that the 

same thing will occur despite shifting the obligation to refiners and importers. 

This unsupported speculation is the critical basis for conclusions of limited 

impacts throughout the EA.

In fact, there is reason to doubt the EA’s assumptions. Even today, gas stations 

are the sites of only a small proportion of CFO facilities. The attached 

spreadsheet identifies 27 hydrogen fueling facilities which currently operate in 

California and another 15 that are planned. Of the total of 42, only 12 are located 

in gas service stations. The other 30 are not, including facilities operated by 

transit agencies, municipalities (for city vehicles) and universities, many not open 

to the general public.

Moreover, just as ARB does not control the behavior of local governments, the 

refiners and importers do not control the behavior of station owner/operators. 

The overwhelming majority of service stations in California are now owned by 

independent operators who only have a supply contract with a refiner or 

distributor. There are few remaining lessee dealers who lease service stations 

owned by refiners. Except in those few cases, a refiner has no ability to require

station owner/operators to install equipment to dispense hydrogen. The expense 

would likely be considerable, both to pay for the equipment and to induce station 

owner/operator to cooperate and surrender its property for a new line of business 

without a track record of profitability. Moreover, refiners and importers will be 

reluctant to install costly equipment at locations where they have no control but 

may be subject to liability in the event of accidents. Accordingly, refiners may be 
26

more likely to contract with other parties, such as the existing providers who are 

already in the hydrogen business and with whom refiners already have business 

relationships, to establish new outlets specializing in hydrogen. At this point, that 

prospect too may be speculative, but it appears to make economic sense. But 

those new outlets are unlikely to be sited at existing retail service stations. At the 

least, ARB has provided no justification for assuming that the development of 

outlets in new locations will not occur. 

In sum, the facts suggest that it is reasonable to expect a significant number of 

CFO facilities may be located outside existing retail service stations, contrary to 

the assumption in the EA. As a result, there is no substantial evidence to support 

the EA’s conclusions that are predicated on the restriction of CFO facilities to 

existing stations, in order to avoid impacts in new locations.”

ARB disagrees. The EA discloses that some facilities would be located at 

existing facilities, some may be located outside existing facilities, or on otherwise 

developed property, so the commenter’s perception of the environmental 

analysis is not correct. It is reasonable to predict that these locations are likely to 

be in urban areas where they are positioned to serve the most drivers, and 

therefore sell the most fuel. Thus, it is unlikely that new hydrogen fuel outlets 

would be located in non-urban areas on “greenfield” sites (i.e., land not 

previously developed). Outlets would also be reasonably expected to be built in 

locations consistent with local zoning, because local governments anticipate 

fueling stations as allowable uses in appropriate zone districts (e.g., commercial 

or industrial zone districts).

Regardless of whether a facility is sited at an existing fueling facility versus other 

locations, the EA discloses the impacts associated with site preparation and 

construction at a programmatic level.

26-8 The commenter expresses that there was “Improper Use of “Hypothetical Future 

Conditions” Baseline. ARB assumes that the existing conditions or “baseline” for 

purposes of determining impacts of the CFO amendments (as well as the ZEV 

and LEV III provisions addressed in the EA and EIA) consists of: 

existing vehicle and related fuel emissions programs, policies, and 

regulations. The existing regulatory condition includes the existing LEV 

regulation (LEV II), including the GHG requirements that are part of LEV II 

(known as the Pavley regulations), the EPL regulation, and the existing 

ZEV regulation, as well as other relevant, previous California rulemakings, 

such as the LCFS and all comparable federal regulations. . . . In the 

context of regulatory programs, impacts on the physical environment are 

the result of compliance responses to regulations. Compliance responses 

to the existing LEV II, ZEV, and CFO regulations are already in place and 

underway. The environmental effects of proposed amendments to 

regulations that reduce CAP and/or GHG emissions from 
27

light- and medium-duty vehicles would build upon the compliance 

responses to these existing regulations. 

ISOR Appendix B, pp. 24-26. On the contrary, the CEQA baseline consists only 

of the physical environmental conditions that actually exist. Hypothetical 

conditions that do not physically exist are not properly included in the CEQA 

baseline, no matter how reasonable the expectation that those conditions will 

come to pass. Similarly, anticipated future conditions that will exist on 

completion of plans, rules and compliance responses cited by the EA cannot be 

included in the baseline here. Instead, impacts of the CFO amendments must be 

determined by comparison to the physical environment that now exists. By 

improperly including regulatory developments which are still in progress in the 

baseline, the EA obscures the actual impacts required to be disclosed under 

CEQA, by understating changes compared to conditions that exist today.” 

As noted by the commenter, the CEQA Guidelines state that the baseline for 

determining the significance of environmental impacts is normally the existing 

physical conditions at the time the environmental review is initiated. (See CEQA 

Guidelines, section 15125 (a).) The existing conditions at the time the EA was 

initiated include the existing vehicle and related fuel emissions programs, 

policies, and regulations. Regulations that are currently in place are assumed to 

be implemented and complied with, and are therefore properly included in the 

existing conditions.

The EA properly analyzed the potential environmental impacts of the reasonably 

foreseeable methods of compliance related to the proposed amendments under 

the ACC Program with the current methods of compliance related to the existing 

State and federal regulatory framework. (See Black Property Owners Assn. v. 

City of Berkeley (1994) 22 Cal.App.4th 974, 985 [in updating general plan, city 

needed only to assess the impacts of the changes or amendments to the plan].) 

Situations appearing in the case law relating to hypothetical future conditions are 

not comparable to the conditions in the EA. The existing conditions include the 

compliance responses to the existing LEV II, ZEV, and CFO regulations already 

in place and underway. These are not hypothetical future conditions. The cases 

concerned with the reliance on hypothetical future conditions are concerned that 

an illusory baseline masks the severity of impacts of the proposed project. (See 

Communities for A Better Environment v. South Coast Air Quality Management 

Dist. (2010) 48 Cal.4th 310, 322.) This is not the case with the approach to 

baseline used in the EA analysis. The EA analysis that looks at the potential 

environmental impacts of the reasonably foreseeable methods of compliance 

related to the proposed amendments under the ACC Program compared with the 

current methods of compliance related to the existing State and federal 

regulatory framework, does not mask or obscure the potential severity of the 

potential impacts of implementation of the regulatory amendments. The impacts

of the CFO amendments are determined by comparison to the physical 

environment that now exists by analyzing (at a programmatic level) the potential 
28

impacts of the new fueling stations expected by the amendments. Commenter’s 

general assertions about baseline fail to demonstrate specifically how the EA 

baseline approach obscures impacts required to be disclosed under CEQA. 

Other reasonably foreseeable actions that are approved or proposed to take 

place in the time frame of the proposed ACC Program, but are not yet in effect, 

are referred to in the EA as “complementary measures” (e.g., Environmental 

Standards for Hydrogen Production [requires GHG reductions and use of 

renewables in accordance with SB 1505]). These help define the future, 

cumulative scenario of reasonably foreseeable compliance measures. The 

complementary measures are designed to reduce CAPs and GHGs by 

increasing the efficiency with which California uses all forms of energy and by

reducing dependence on the fossil fuels.

26-9 The commenter expresses that there was “Failure to Correctly Analyze Air 

Emissions. Even if ARB were justified in considering the future conditions 

resulting from compliance with the pre-amendment regulatory regime as the 

CEQA “baseline”, it failed to correctly implement this approach. The Emissions 

Impact Analysis, ISOR Appendix D, compares scenarios of fast and slow fuel cell 

vehicle (FCV) deployment to gasoline vehicles only. However, compliance with 

the existing regulatory regime, including existing ZEV regulations, should result in 

the deployment of battery electric vehicles (BEVs) instead. Accordingly, the CFO 

amendments, fostering the development of the FCV market by ensuring the 

availability of hydrogen fuel, would be expected to result in the replacement of 

BEVs with FCVs. Therefore, the EIA should have focused on the differences in 

air emissions between BEVs and FCVs, the emissions associated with the 

generation and distribution of electricity and hydrogen, and any secondary issues 

associated with the use of conventional vehicles for long-distance travel by 

owners of both BEVs (which require frequent battery charging) and FCVs (which 

require proximity to hydrogen fueling stations). In particular, utilizing the EA’s 

claimed baseline, the EIA should have compared hydrogen production to 

electricity generation emissions, rather than to those of gasoline production. 

These comparisons not only affect the claim of overriding benefits to justify 

significant and unavoidable impacts, but also have implications for the analysis of 

adverse impacts. Hydrogen generation, whether at central facilities or at fueling 

stations, generally can be expected to occur in developed areas, which are more 

likely to be in non-attainment of ambient air quality standards. By contrast, 

electricity in California is often generated outside urban and developed areas and 

in some cases outside the state. Emission increases associated with hydrogen 

thus may be more likely to cause significant air quality impacts.” 

Please refer to the response to Comment 26-8. The baseline for the EA was 

determined for the entire ACC Program, which includes the CFO regulation.

ARB disagrees that air emissions were incorrectly analyzed for the CFO 

regulation. ARB believes that the commenter misinterpreted the EIA presented 

in the CFO ISOR, which clearly identifies all assumptions and baseline values.
29

The CFO’s EIA evaluated the penetration of FCVs into the existing transportation 

fuel pool that is dominated by gasoline vehicles. In both the Lower and UpperBound scenarios, the number of FCVs anticipated as a result of the ZEV 

regulation was shown. The Lower-Bound scenario can be interpreted as the 

number of FCVs that is anticipated if OEMs chose to produce more BEVs. 

Similarly, the Upper Bound Scenario can be viewed as the case in which they 

chose to produce fewer BEVs. When the ZEV regulation becomes effective

FCVs and BEVs will together be used by OEMs to meet the regulation’s 

requirement. For the CFO EIA, the goal is to a) measure the emissions resulting 

from the production, transport and use of hydrogen in response to the number of 

FCVs projected and b) to determine the emissions reductions if the projected 

number of FCVs successfully penetrated the transportation market and replaced 

the comparable gasoline counterparts. Regardless of the number of FCVs 

deployed, whether high or low, it is critical that the emissions measurement be 

made against the current baselines, which are gasoline and gasoline vehicles. 

Measuring emissions of one alternative fuel versus another only demonstrates 

which alternative fuel is cleaner, whether or not the alternative fuel has any 

emission benefit within the existing transportation sector that is and will continue 

to be dominated by gasoline vehicles in the timeframe evaluated. 

26-10 The commenter expresses that there was “Failure to Analyze and Disclose Air 

Quality and GHG Impacts from Construction of New Hydrogen Fueling Stations. 

The EA air quality section, p. 142, states: “Based on typical emission rates and 

default parameters for above mentioned equipment and activities, construction 

activities could result in hundreds of pounds of daily NOx and PM, which may 

exceed general mass emissions limits depending on the exact location of 

generation.” The short-term construction impact (which is not so “short term” 

when considering construction of over 450 fueling stations) is considered 

potentially significant, and mitigation is left to the local permitting authorities 

during project-level CEQA review. However, the EA does not say what those 

casual references to “typical emission rates” and “default parameters” may mean, 

nor explain the “general mass emissions limits” which may apply. Neither the EA 

nor the EIA (ISOR Appendix D, the emissions impact technical analysis) provides 

any quantitative estimates of air pollutant emissions beyond the vague 

acknowledgment of “hundreds of pounds of daily NOx and PM.” Readers are 

given no information to understand or comment on whatever basis ARB may 

have for that order-of-magnitude figure. Moreover, other construction air quality 

impacts (e.g., toxic air contaminants) are not even described with order-ofmagnitude estimates, and neither the EA nor the EIA even mentions greenhouse 

gas (GHG) emissions from fueling station construction. 

As discussed above, the programmatic nature of the EA and the anticipated 

future project-level review (at least, for those projects not found exempt from 

CEQA) are not a shield from CEQA’s disclosure obligations. Determining the 

readily identifiable magnitude of emission impacts was not properly left as an 

exercise for the reader.”
30

The commenter asserts that the air quality analysis should provide quantitative 

estimates of air pollutant emissions. See response to Comment 26-2 for an 

explanation of the appropriate level of review for the ACC Program. As stated in 

that response, the EA analysis is necessarily general, programmatic and 

qualitative in nature. A more detailed analysis is not reasonably feasible at this 

time because it is unknown what specific future actions will be and any sitespecific impacts, including quantitative estimates of air pollutant emissions for the 

construction of as of yet unidentified future stations, cannot be known and 

assessed with any level of specificity at this time. 

The Commenter also asserts that neither the EA nor the EIA mentions GHG 

emissions from fueling station construction. Fueling station construction is just 

one compliance response of the amendments and the EA analyzes the GHG 

impacts for the entire ACC Program. Page 149 of the EA indicates that the 

proposed ACC Program would result in an emissions benefit as compared to 

current regulations. Table 5-4 shows the GHG emission benefits in 2020, 2025, 

2035, and 2050. By 2025, CO2 equivalent emissions would be reduced by 

almost 14 MMT/yr, which is 12 percent from baseline levels. The reduction 

increases in 2035 to 32 MMT/Year, a 27 percent reduction from baseline levels. 

By 2050, the proposed regulation will reduce emissions by more than 42 MMT/yr, 

a reduction of 33 percent from baseline levels. Viewed cumulatively over the life 

of the regulation (2017-2050), the proposed ACC Program would reduce 

emissions by more than 870 MMT CO2e. Please refer to discussion of 

construction impacts in the EA starting on Page 141. 

26-11 The commenter expresses that there was “Failure to Evaluate Construction and 

Operation Impacts of New Hydrogen Generating Capacity. The EA (pp. 134-

145) acknowledges that compliance with the CFO requirements would require an 

increase of up to 9.2% in the state’s currently projected supply of merchant 

hydrogen. The EA also notes that increased hydrogen purity may be required for 

merchant hydrogen to be suitable for use as fuel for FCVs. Accordingly, the EA 

explains: “For delivered gaseous hydrogen, modifications of the central plants 

may be necessary to further purify the hydrogen so that it meets the purity 

standards required for fuel cell vehicles” and goes on to rely on other agencies 

for mitigation as it does elsewhere, noting that “the construction work associated 

with these plant modifications would have to satisfy State and local requirements 

for permitting, hazardous materials, and other resource areas, which are typically 

handled by local agencies” (EA, p. 135).

However, the EA fails to indicate what percentage of currently available or 

forecast merchant hydrogen complies with existing specifications for hydrogen as 

an alternative vehicle fuel. More important, it does not provide any justification 

for assuming adding up to 9.2% of higher purity hydrogen to the existing supply 

can be accomplished merely be “modifications” to existing hydrogen generating 

plants. In fact, in every reference to impacts associated with meeting hydrogen 

demand, the EA is careful to assert that the demand will be met with 

“modifications” of existing plants. See, e.g., EA pp. 139, 141, 148, 151, 152, 155, 
31

158, 161-163, 167-169, 171 (each asserting that “New hydrogen fueling stations 

could also be constructed and operated along with modifications to existing 

hydrogen production plants”). 

By assuming only modifications to existing facilities, the EA can avoid any 

impacts from construction and operation of new hydrogen generating capacity, 

which can be substantial. New merchant scale hydrogen plants are major 

industrial facilities whose construction and operation, like that of other industrial 

plants, can have significant environmental impacts requiring evaluation under 

CEQA. (Among other things, hydrogen generation itself produces GHG 

emissions, which must be mitigated or offset.) However, the EA provides no 

basis for the assumption. In fact, it seems unreasonable that so great an 

increase in supply can be accomplished without new facilities. Moreover, as the 

EA also notes, pursuant to SB 1505, once statewide demand for hydrogen as a 

transportation fuel reaches certain levels, state law requires that 33.3 percent of 

this hydrogen be made from renewable resources. There is no estimate of the 

amount of hydrogen available from existing sources that meets both this 

requirement and vehicle fuel specifications. Yet under these circumstances, it 

seems inevitable that there will be more than a modification of existing facilities. 

Just as the EA’s unrealistic assumption that all fueling facilities will be located on 

existing retail service stations serves to understate impacts from new facilities, so 

does the assumption that only modifications of existing generating capacity are 

needed. However, given the far larger footprint and environmental effects of new 

hydrogen generating capacity, the omission has greater consequences for the 

inadequacy of the EA.”

The commenter asserts the EA analysis underestimates impacts by assuming 

only modifications to existing facilities and understating the construction and 

operation of new hydrogen facilities. Contrary to commenter’s assertion, the EA 

impact analysis does address construction and operation of new hydrogen 

generating capacity. The EA (at page 135) indicates that recently California has 

favored hydrogen fueling stations using delivered hydrogen with central 

production over stations that produce hydrogen on site (CEC 2011). The EA also 

indicates that new hydrogen fueling stations could also be constructed and 

operated along with modifications to existing hydrogen production plants (see EA 

page 135). The EA found that these new facilities would likely occur within 

existing footprints or in areas with consistent zoning. This analysis does not 

mask or hide potential impacts of new facilities. The commenter is reminded that 

the EA provides a programmatic level of analysis and discloses impacts 

associated with the foreseeable compliance responses by the regulated 

community (see response to Comment 26-2).

26-12 The commenter expresses that there was a “Failure to Analyze Hydrogen 

Hazards. The EA, p. 158, summarily dismisses impacts related to hazardous 

materials transport and use, asserting that “New hydrogen fueling stations 

[and] . . .modifications to existing hydrogen production plants. . . . would likely 
32

occur within existing footprints or in areas with consistent zoning.” As discussed 

above, there is reason to doubt these speculative and unsupported assumptions. 

The EA (pp. 158-159) goes on to address explosion risk from electric vehicle 

batteries (for the ZEV portion of the ACC initiative) but, remarkably, omits any 

mention of explosion risk from hydrogen transport and use. Still more 

remarkably, the only risk of spills the EA discusses is minor diesel spills from 

fueling construction equipment. No potential impacts (not even insignificant 

impacts) are recognized for hydrogen transport to fueling stations and operations 

at stations. No mitigation measures are provided for hydrogen hazards, not even 

recommended measures to be implemented by local authorities in project-level 

CEQA review for permitting or approvals.” 

The commenter asserts the EA failed to discuss the explosion risk from hydrogen 

transport and use. The Existing Conditions and Regulatory Setting sections of 

the EA do address the ignitable characteristics of explosive material. The EA 

also identifies the respective governing laws that, when complied with, would 

avoid or reduce this potential impact (see EA at pages 80-83)

The EA starting at page 158 discloses that the project could potentially create a 

significant hazard to the public or the environment through reasonably 

foreseeable upset and accident conditions involving the release of hazardous 

materials into the environment and that this impact would be potentially 

significant. This EA found that this impact could be reduced to a less-thansignificant level by mitigation that can and should be implemented by local lead 

agencies, but the authority to impose mitigation is beyond the authority of the 

ARB. The commenter asserts additional analysis of the potential for explosion 

risk from hydrogen transport and use should have been addressed but provides 

no evidence supporting this type of impact. In fact, the notices of exemptions for 

hydrogen fueling stations submitted by commenter rely on categorical 

exemptions, and the submitted mitigated negative declaration support finding no 

potential for significant impacts from explosion risk from hydrogen transport or 

use (see response to Comment 26-3). Therefore commenter’s submissions 

contradict commenter’s assertion that the EA should have addressed in more 

detail potential hazards from hydrogen. 

The commenter also expresses that there was “failure to discuss hazards or the 

impacts of hazard mitigation strategies in relation to hydrogen transport and 

refueling facility operation is a significant omission in the EA. The California 

Energy Commission (CEC) evaluated potential failure modes and the effects of 

those failures at hydrogen refueling stations, which include failure modes 

associated with hydrogen delivery vehicles and on-site generation. The U.S. 

Department of Energy developed an on-line tool for hydrogen hazard and risk 

analysis. As indicated in these references, the outcomes of many potential 

failure modes are explosion and fire. Some of the analyzed scenarios have low 

or moderate frequency but, if they do occur, would have severe consequences.” 

Both of these references also address potential mitigation measures that are not 

addressed at all in the EA which might address hazards but could create other 
33

potential environmental impacts not to mention impact refueling facility design, 

throughput, cost, and other important factors. 

The CEC report (p. 6-3) concludes that: 

hydrogen is relatively leak prone, particularly considering the fact that it is 

usually stored at high pressures, flammable mixtures are easily ignited, 

and it is difficult to detect. These characteristics may make hydrogen less 

safe than other fuels in some accident scenarios. While hydrogen’s 

industrial-use safety record is good, this application does not include all 

vehicle fuel and lay person issues. Fortunately, safety research is 

underway and codes and standards are being developed to address 

hydrogen vehicle fuel applications. 

However, neither the Existing Conditions section (pp. 79-83) nor the 

Hazards and Hazardous Materials section (pp. 158-160) of the EA 

describes any such codes and standards, either as part of the regulatory 

setting or as a source of mitigation measures. Moreover, as recognized in 

the CEC’s allusion to “lay person issues”, customers at hydrogen fueling 

stations cannot be expected to observe safety procedures as rigorously as 

trained personnel.”

Please refer to response 26-12, above. 

26-13 The commenter expresses that there was “Failure to Consider Fire 

Protection/Public Service Impacts. As in the Hazards and Hazardous Materials 

section, the EA’s Public Services section contains no discussion of hydrogen 

risks. Given that the impacts of failure modes at hydrogen refueling facilities are 

frequently fire, explosion, or both, the EA’s conclusion (p. 168) of a less than 

significant impact on fire protection public services is untenable. 

As shown in the ISOR, Table I-1 (p. 10), there are only ten public hydrogen 

refueling stations currently open in California. The largest of those ten stations 

has a capacity of 100 kg/day of hydrogen. Given the lack of existing stations, 

most fire departments would not be expected to be familiar with nor trained to 

deal with emergencies at hydrogen refueling stations. These departments could 

be faced with the need to purchase new equipment, engage in additional training 

or add additional fire fighters. Moreover, ARB assumes that hydrogen stations 

attributable to the CFO amendments will be designed for throughputs of 400 

kg/day, or four times the capacity of the largest existing station. Even fire 

departments that are familiar with and trained to deal with emergencies at 

existing hydrogen stations will be faced with much larger potential fires and 

explosions at facilities with larger volumes of stored hydrogen and/or the 

increased number of hydrogen delivery vehicle trips. Finally, the increase in 

hydrogen transport vehicles on the state’s roadway network would introduce 

increased risks, necessitating training and, potentially, new equipment for fire 
34

departments in locations that do not have fueling stations, as well as those that 

do. 

If the EA were to follow its usual pattern, relying on the authority of local agencies 

to address increased demands on local fire protection service, then the impact 

should be found significant and unavoidable, not less than significant. At the 

least, the impact must be acknowledged and recommended mitigation measures 

provided. The EA should also recognize that agencies responsible for disaster 

response (e.g., in the event of earthquake), as well as local fire departments, 

likely would be affected by the risks associated with over 450 new hydrogen 

outlets and the delivery trucks necessary to service them.”

Commenter asserts that “given that the impacts of failure modes at hydrogen 

refueling facilities are frequently fire, explosion, or both, the EA’s conclusion (p. 

168) of a less than significant impact on fire protection public services is 

untenable.” The EA found that hydrogen fueling facilities would be expected to 

be sited at existing facilities, or in appropriately zoned areas and addressed the 

potential for hazards (see response to comment 26-12). The EA found that 

emergency systems for these kinds of projects would already be in place. 

Commenter asserts refueling facilities are subject to fire and explosion but has 

not submitted any evidence to support this assumption and the resulting potential 

for impacts on public service that would result from such fires and explosions. 

On the contrary, the documents provided by the commenter (categorical 

exemptions and negative declaration) support a finding of no impact from such 

facilities including alleged impacts to public services (see response to comment 

26-3). 

26-14 The commenter expresses that there was “Failure to Analyze Population and 

Housing and Related Impacts. Typical impacts in several areas – e.g., 

population and housing, land use, recreation, utilities, public services in addition 

to fire protection, and growth-inducing impacts – relate to the numbers of workers 

involved in construction and operation of hydrogen facilities. The EA makes 

broad, unsupported assertions that worker numbers will be low and impacts 

related to worker numbers accordingly insignificant (see, e.g., EA p. 168). Again, 

the reader has no basis to know how well-founded such assertions are and it was 

ARB’s responsibility to provide support for public review and comment.”

The EA concludes that the potential for impacts to population and housing would 

be less than significant because construction activities associated with new 

fueling facilities would be anticipated to require relatively small crews as new 

plants, stations, and modifications would likely occur within existing footprints or 

in areas with consistent zoning. In addition, demand for these crews would be 

temporary (e.g., 6-12 months per project). Therefore, it would be anticipated that 

the need for a substantial amount of construction worker migration would not 

occur and that a sufficient construction employment base would likely be 

available. Furthermore, it would not be anticipated that a substantial amount of 

new personnel would be needed to operate the facilities and that sufficient 
35

employment base would likely be available because these would likely occur 

within existing footprints or in areas with consistent zoning. The commenter has 

not submitted any information to contradict the EA analysis of potential for 

impacts on housing and population. In fact, the documents provided by the 

commenter (categorical exemptions and negative declaration) support a finding 

of no impact from such facilities on population and housing (see response to 

comment 26-3). 

26-15 The commenter expresses that there was “Failure to Consider a Reasonable 

Range of Feasible Alternatives. Alternatives analysis is a central aspect of the 

CEQA review process. A lead agency must consider and evaluate a range of 

potentially feasible alternatives that will foster informed decision-making and 

public participation. To accomplish this, the CEQA document must develop and 

evaluate a range of reasonable alternatives that would feasibly attain most of the 

basic objectives of the project, but “would avoid or substantially lessen any of the 

significant effects of the project.” However, with respect to the CFO 

amendments, the EA fails to meet even the “reasonable range” standard. 

Other than the statutorily required no project alternative, the sole alternative to 

the CFO amendments considered is the Memorandum of Agreement (MOA) with 

major gasoline refiners and importers to carry out the exactly same objectives 

provided in the CFO amendments. 

Accordingly, the EA concludes (pp. 195-196) that its impacts would be the same 

or less than those of the proposed project, since potentially “varying levels of 

commitment” by MOA participants could lead to fewer hydrogen fueling stations 

being constructed. 

WSPA strongly disagrees with the implication that MOA participants would 

breach the agreement. ARB has no grounds to impugn the intent of MOA 

participants to fully comply with requirements to which they have committed. 

Moreover, intent aside, compliance would not be optional. As the EA (p. 195) 

states, the “MOA would have the binding power of a contract and be legally 

enforceable.” 

The unsupported presumption of inadequate MOA compliance also has an 

important consequence for the CEQA review of alternatives. The MOA 

alternative is designed to and can be expected to achieve the same results as 

the CFO amendments. Accordingly, the EA fails to consider any CFO alternative 

that is designed to “avoid or substantially lessen any of the significant effects of 

the project” as required by CEQA. Not every feasible alternative that an agency 

(or a commenter) can conceive of need be considered. Nevertheless, ARB is 

obligated to revise the EA to contain, and must then fully and fairly consider, 

some other alternatives that reasonably can be expected to accomplish actual 

reductions in significant impacts. 
36

While it is ARB’s obligation to develop a reasonable range of alternatives that 

can avoid or less impacts, at least two potential alternatives appear feasible.

First, as discussed above, the EA analysis assumes that hydrogen fueling 

facilities will be constructed at existing gasoline service stations. However, ARB 

could accomplish the same objective, promoting the availability of hydrogen fuel 

and so encouraging the manufacturing and purchase of FCVs, without assuming 

that hydrogen fueling will only occur at public fueling stations. Deployment of 

FCVs could also create a market for in-home hydrogen fueling. In-home fueling 

for natural gas vehicles already exists. Hydrogen fueling could be accomplished 

through exchange of canisters, such as is already being tested on light electric 

vehicles with fuel cells (such as scooters) in Taiwan. FCV fueling by this method 

could occur at some public fueling stations, but canisters also could be 

purchased at retail outlets and installed at home. Under this alternative, far fewer 

than the 450 public hydrogen dispensing facilities assumed by the EA would be 

necessary, and associated impacts would be reduced. 

Second, refiners and importers could be provided the option of meeting CFO 

obligations through hydrogen dispensing or electric vehicle charging facilities. 

Electricity is also a clean fuel that could satisfy CFO requirements. The 

regulatory language in proposed 13 Cal. Code Regs. section 2300(a)(2) defines 

“clean alternative fuel” as “any fuel used as the certification fuel in a zeroemission vehicle” which includes both electricity and hydrogen. Since this 

alternative would have the effect of promoting a mixed fleet of FCVs and BEVs, 

the CEQA evaluation would include consideration of impacts associated with 

BEV batteries. Nevertheless, BEVs are a more mature technology with which 

consumers are more familiar than FCVs. At the least, hazard impacts and 

firefighting public service impacts associated with the use of explosive hydrogen 

fuel could be reduced. In particular, hydrogen handling by “lay persons” as 

opposed to trained personnel was recognized as an issue by the CEC (see 

above). Accordingly, this alternative merits consideration by ARB in a revised 

EA.” 

In accordance with the substantive requirements of CEQA, the alternatives in the 

EA represent a “reasonable range” that could potentially attain most of the basic 

project objectives while having the potential to reduce or eliminate significant 

environmental effects. The range of alternatives analyzed in the EA was 

governed by the “rule of reason,” requiring evaluation of those alternatives 

“necessary to permit a reasoned choice.” (See CEQA Guidelines, section 

15126.6(f). The candidate alternatives must have the potential to meet the 

project objectives and be potentially feasible, based on technical, legal and 

regulatory grounds, to be considered for evaluation. 

The project consists of a set of regulations that comprise the proposed ACC 

Program, of which the CFO regulation is one component. The EA examined the 

“No Project”, a More Stringent Emissions Standard in the Low Emission Vehicles 

and the Zero Emission Vehicle Regulations, a Less Stringent Emissions 
37

Standard in the Low Emission Vehicles and the Zero Emission Vehicle 

Regulations, a Clean Fuels Outlet Regulation Based on a Memorandum of 

Agreement with Major Refiners and Importers of Gasoline, and three other 

alternatives that were considered by rejected as infeasible. These include a 

Feebate Regulation, Targeting High-Emitting Vehicles in the Existing Fleet and 

targeting Battery Electric Vehicles or Hydrogen Fuel Cell Vehicles Only. 

The commenter suggests additional alternatives to the CFO regulation that 

commenter believes ARB should analyzed in an EA. These include in-home 

fueling, an alternative where hydrogen fueling could be accomplished through 

exchange of canisters, and another that targets BEVS. The commenter suggests 

an “exchange of canisters for light electric scooters and micro cars alternative” as 

a viable alternative to hydrogen fueling infrastructure by automobile 

manufacturers, government and academic agencies, or other parties involved in 

researching the advancement of hydrogen and fuel cell vehicles. 

It is not clear whether or not the commenter is suggesting that in-home refueling 

appliances should be considered as an alternative to requiring public 

infrastructure, and therefore arguably no further response is needed here. In the 

event it is determined that the commenter did properly present this as an 

alternative, it is rejected for a number of reasons. 

First, ARB has determined that such in-home appliances do not meet the overall 

objectives of the Advanced Clean Car program, and poses feasibility challenges. 

The home energy station, such as the one under development by Honda, 

considers a whole energy approach using natural gas already supplied to the 

home to provide heat, energy, electricity, and hydrogen. This conceptual system 

may not be available to all FCV owners, specifically those who do not live in 

single-family dwellings, those whose homes do not have supplied natural gas or 

cannot be modified to accommodate such an appliance, and those who cannot 

afford it. Still in the development stages, this home energy and hydrogen fueling 

station concept shows promise for some applications, but development has not 

advanced sufficiently enough to be a likely fuel supply scenario in time for FCV 

deployments .

The canister alternative would not meet the overall objective of the Advanced 

Clean Cars program and would not serve the same purpose as the proposed 

regulation. The suggested alternative would reduce the overall scale of the 

regulation, and would result in different safety issues and a different suite of 

potential environmental impacts. Additionally, there could be feasibility issues 

that could be challenging to address. The alternative would require that NHSTA 

approve the full- function, highway legal vehicles to use detachable canisters of 

high pressure hydrogen. FCVs are designed to achieve a driving range similar to 

today’s vehicles. The mass of storage systems required to achieve this range 

can be greater than100 kg. The idea of routinely swapping storage containers 

weighing greater than 100 kg obtained at retail outlets would likely be impractical 

to perform at home. In addition, drivers and vehicles used for transporting high-
38

pressure gas canisters would likely be required to obtain special permitting and 

licensing, thereby preventing the average fuel cell vehicle owner from purchasing 

canisters, transporting and storing them for use in their vehicles. 

The BEV alternative that the commenter is advocating includes electric vehicle 

charging and CFO. BEV-only ZEV scenario would place more focus on public 

fast-charging facilities, and presents several challenges surrounding the 

necessity for a mandate, the parties who incur the cost, and the establishment of 

a standard for fast-charging the plug. The CFO ISOR analysis found that a 

charging infrastructure mandate is unwarranted and could hinder the current 

development of public charging infrastructure. Staff also found that more 

information is needed to determine what should done to from a regulatory 

perspective to increase BEV sales and electric miles traveled as BEVs are 

experiencing a successful commercial launch today without a public charging 

mandate. For this reason, and with the support of and input from auto 

manufacturers and electric vehicle advocates, staff’s regulatory proposal 

included the public charging infrastructure needs assessment (section 2302(c)). 

At this time, it is uncertain that regulatory mandate for charging infrastructure is 

necessary to promote BEVs, but ARB intends to find out via the assessment 

proposed in section 2302(c). If the commenter is suggesting that regulated 

parties be allowed to choose to build charging stations instead of hydrogen 

stations, the end result would be insufficient hydrogen stations necessary to 

promote commercialization of FCVs. If they are suggesting an alternative that 

mandates fueling infrastructure for all ZEVs, then they would be required to 

provide both charging infrastructure and hydrogen dispensers based on on-road 

ZEVs and automaker projections.

Further, and although highly unlikely, battery fires have occurred and the EA 

discloses the potential for that impact. This contention is in contrast with the 

documents provided by the commenter that show that no impact would result 

with hydrogen fueling, per the NOEs and the mitigated negative declaration 

submitted. 

Finally, the commenter repeats several concerns regarding hydrogen safety and 

public interaction with a new fuel that have been addressed in the EA. At this 

point, the commenter should be well aware that, regardless of the vehicle or fuel 

type, commercial introduction of any new technology will depend on strict 

adherence to codes and standards designed to protect the “lay person” against 

exposures, fires, explosions, or electrocution.

26-16 The commenter expresses a need for “Revision and Recirculation of the EA. 

Correcting the deficiencies discussed above would require extensive revisions to 

the EA. Substantial changes (including the addition of feasible new alternatives 

that clearly would lessen significant impacts) must be made available for public 

review and comment. Accordingly, the EA should be revised and recirculated for 

additional public comment before ARB takes action on the proposed CFO 

amendments.”
39

ARB disagrees. The EA is not deficient and need not be recirculated. As 

explained in response to commenter’s detailed comments above, the commenter 

has raised no new issues or provided new information about potentially

significant impacts that require ARB to revise the EA. Since no significant new 

information is being added to the EA after public review, no recirculation is 

required (see e.g. CEQA Guidelines CCR section 15088.5). 

26-17 The commenter expresses “Comments on Appendix B: Environmental Analysis 

Environmental Analysis Related to Hazards, Hazardous Materials, and Public 

Services WSPA recommends ARB staff review the deficiencies and issues 

identified below and augment/correct them in the final regulatory documents. As 

part of the ARB’s Environmental Analysis for the Advanced Clean Cars Program 

(Appendix B to the Initial Statement of Reasons (ISOR) for the 2012 Proposed 

Amendments to the Clean Fuel Outlet (CFO) Regulation), the potential impacts 

of the CFO regulation on Hazards, WSPA combined CFO comments 1-24 

legal.doc 32 Hazardous Materials, and Public Services are analyzed along with 

means to mitigate potentially significant impacts. 

Beginning with Hazards and Hazardous Materials ARB analyzed three issues. 

These are: 

1. Routine Transport, Use, or Disposal of Hazardous Materials 

2. Upset and Accident Conditions, and 

3. Hazardous Emissions, Materials, or Substances Near Schools, Hazardous 

Material Site, Airport Land Use Plan, Private Airstrip, Emergency Response Plan 

or Emergency Evacuation Plan, and Wildland Fires.”

With respect to Public Services ARB analyzed only the following issue: 

4. Response Time for Fire Protection, Police Protection, Schools, Parks, and 

Other Facilities. 

See response to 26-16 above for why the EA does not require any revision. With 

respect to issues 1 and 4, the EA concluded that impacts would be less than 

significant. More generally, the public was not deprived of a meaningful 

opportunity to comment. Please refer to the description provided in the 

Introduction of this document of the public review process. 

With respect to issue 2, the EA identified the potential for fuel spillage associated 

with the refueling of construction equipment as a potentially significant impact but 

went on to indicate “...this impact could be reduced to a less-than-significant 

level by mitigation that can and should be implemented by local lead agencies, 

but is beyond the authority of the ARB.” 

The EA identifies laws and regulations (Regulatory Setting) that assumes but 

cannot guarantee compliance. Compliance with these laws and regulations are 
40

enforced at the local level. These laws apply to transport of hazardous materials,

which include flammable substances. Further, since the fueling stations would 

likely be located in an appropriately zoned area, public services would already be 

in place. The EA found the impact to the less than significant and no mitigation is 

required. 

The commenter also expresses “With respect to issue 3, ARB indicates that 

“impacts...may be significant and unavoidable”. It appears that ARB ignored 

germane factors that should have been included in the Environmental Analysis 

for issues 1, 2 and 4 that could have also lead to findings of significant impacts 

and unavoidable impacts. These factors are related to the potential failure 

modes and the effects of those failures at hydrogen refueling stations which 

include failure modes associated with hydrogen delivery vehicles and on-site 

generation. These factors have been studied extensively and documented, for 

example, in a report prepared for the California Energy Commission and in an 

on-line tool for hazard and risk analysis available from the U.S. Department of 

Energy. As indicate in these references, the outcome of many potential failure 

modes are “explosion and fire”. This seems to directly contradict ARB’s 

conclusion that risks with respect to issues 1 and 2 are not significant and do not 

require mitigation. 

Given that the impacts of failure modes at hydrogen refueling facilities are 

frequently fire, explosion, or fire and explosion, it is difficult to understand how 

ARB arrived at the conclusion that there would not be significant impacts with 

regard to fire protection services which are included in issue 4. As described 

below, it is clear that there will be significant impacts on fire protection services 

which will require either mitigation or which will have to be deemed to be 

significant and unavoidable.” 

ARB disagrees. Please refer to responses 26-17 above. 

The commenter also expresses “As shown in Table I-1 of the CFO ISOR (page 

10), there are only ten public hydrogen refueling stations currently open in 

California and of those ten stations, the highest capacity is 100 kg/day of 

hydrogen. This is important for at least two reasons. The first is that given the 

lack of existing stations, most fire departments would not be expected to be 

familiar with, nor trained, to deal with emergencies at hydrogen refueling stations. 

These departments could be faced with the need to purchase new equipment, 

engage in additional training or perhaps add more fire fighters. A similar issue 

could be raised by the introduction of hydrogen transport vehicles operating in 

their jurisdictions which could raise new threats necessitating new equipment 

and/or training. The second reason is that ARB assumes that hydrogen stations 

created by the CFO will be designed for throughputs of 400 kg/day or four times 

the capacity of the largest existing station. Given this, even fire departments that 

are familiar with and trained to deal with emergencies at existing hydrogen 

stations will be faced with much larger potential fires and explosions owing to the 
41

larger volumes of stored hydrogen and/or the increased number of hydrogen 

delivery vehicle trips created by the operation of the station.” 

Please refer to responses above (e.g., 8-1, 26-3) related to siting assumptions

and applicable existing regulations. 

The commenter also expresses “Another potential factor that could impact public 

services that was not identified or analyzed by ARB is the impact of hydrogen 

refueling stations on disaster response requirements. Given that their numbers 

are currently very small, the increases required under the CFO regulation could 

affect public agencies responsible for earthquake response requirements as well 

as responses required for prolonged outages of electric service potentially 

resulting from high wind events and other types of disasters. 

Returning to issue 3, where ARB did indicate that potentially significant and 

unavoidable impacts could exist, one way to mitigate the risk associated with a 

hydrogen refueling station could be for the local lead agencies (which ARB states 

will be responsible for approving construction of those stations) to simply reject 

applications for station construction submitted by refiners subject to the CFO 

regulation precluding their ability to comply with the CFO regulation.” 

Please refer to responses above (e.g., 8-1, 26-3) related to siting assumptions 

and applicable existing regulations. 

The commenter also expresses that “As review of the CEC and DOE references 

cited above quickly indicates, there are different potential failure modes and 

hence risks associated with different hydrogen refueling station designs. Given 

this, another potential mitigation measure would be to dictate station design. 

Given that ARB’s economic model presented in Appendix E to the CFO ISOR 

indicates significant differences in the cost of station construction as a function of 

their design, these local lead agency actions could have significant impacts on 

the costs of compliance with the CFO regulation that CARB staff has failed to 

take into account. 

This comment will be responded to in the FSOR for the CFO regulation. It does 

not pertain to the EA. However, please see response to 26-17. 

With regards to the CFO Environmental Analysis Related to Hydrogen 

Production, “WSPA recommends ARB staff review the deficiencies and issues 

identified below and augment/correct them in the final regulatory documents. 

As part of ARB’s Environmental Analysis for the Advanced Clean Cars Program 

(Appendix B to the Initial Statement of Reasons (ISOR) for the 2012 Proposed 

Amendments to the Clean Fuel Outlet (CFO) Regulation), the compliance 

response of increased hydrogen generation for fuel for fuel cell vehicles (FCVs) 

is recognized and discussed. The impacts associated with the compliance 

response are analyzed with respect to air quality but not with respect to 

greenhouse gas (GHG) emissions. 
42

With respect to air quality, ARB concludes that compliance with CEQA would 

ensure that all impacts associated with the construction and operation of 

hydrogen production facilities are mitigated to a “...less-than-significant level”. 

However, it appears as discussed below that ARB ignored a number of factors in 

analyzing the air quality and GHG impacts associated with the required increase 

in hydrogen production for compliance with the CFO regulation.” 

Please refer to responses above (e.g., 8-1, 26-3) related to siting assumptions 

and applicable existing regulations. 

The commenter expresses that “ARB’s discussion of hydrogen production is 

embedded on pages 134 and 135 of the EA. ARB notes that compliance with the 

CFO requirements would require increases in the supply of up to 9.2% in the 

state’s currently projected supply of merchant hydrogen. The EA also notes that 

increased hydrogen purity may also be required for merchant hydrogen to be 

suitable for use as fuel for FCVs. However, ARB does not indicate what 

percentage of currently available or forecast merchant hydrogen complies with 

the agency’s existing specifications for hydrogen used an alternative motor 

vehicle fuel or what the environmental impacts associated with changes required 

at hydrogen production facilities to produce sufficiently pure hydrogen could be. 

ARB also notes that pursuant to SB 1505, once statewide demand for hydrogen 

as a transportation fuel reaches certain levels, state law requires that 33.3 

percent of this hydrogen be made from “eligible renewable resources as defined 

in subdivision (a) of section 399.12 of the Public Utilities Code.” However, ARB 

provides no estimate of the current amount of hydrogen that is available that 

meets both this requirement as well as its motor vehicle fuel specifications and 

does not include any forecasted estimates. 

Finally, ARB assumes the required hydrogen will be available (and in its 

economic analysis, at prices equivalent to those associated with local production 

at centralized steam methane reforming facilities). However, no basis is provided 

for that assumption.” 

This comment is the same as comments 8-1 and 26-3. Please refer to 

responses above (e.g., 8-1, 26-3) related to siting assumptions and applicable 

existing regulations. 

The commenter expresses that the “first problem with the ARB analysis is the 

assumption that all potential air quality impacts will be mitigated to be nonsignificant as a result of the need for CEQA compliance, and the simultaneous 

assumption that all of the increase in hydrogen production capacity required for 

CFO compliance will occur in a timely fashion. 

Looking first at central hydrogen production facilities producing local merchant 

hydrogen, ARB has provided no evidence that refiners either have direct control 

over these plants or that refiners can somehow compel the expansion of their 
43

capacity. Therefore, the decision with regard to whether or not to expand 

hydrogen production will likely be made based on economics by the plant owner 

who will factor the costs of CEQA compliance into that analysis and may well 

conclude that expansion does not make economic sense, particularly in areas 

such as the South Coast Air Basin where necessary emissions offsets are 

difficult to obtain or expensive. If merchant hydrogen meeting ARB’s hydrogen 

fuel specifications is in short supply, costs will likely rise and to the extent that 

supply is unable to satisfy FCV demand, FCV owners would have to turn to other 

modes of transportation, most likely conventional vehicles with the result being 

increases in emissions of both air pollutants as well as GHG emissions. 

Similarly, existing merchant hydrogen plants are subject to the AB32 cap-andtrade regulation, which will likely require reductions in GHGs from those plants. 

Expansion of those plants would increase GHG emissions and force plant 

operators to purchase additional offsets. Again, this fact would be accounted for 

in the economic decision-making of hydrogen plant owners and tend to 

discourage decisions to increase capacity. 

ARB also fails to identify the potential impacts of the need to increase hydrogen 

supply and the specific production methods used on hydrogen prices which in 

turn may have environmental impacts. As noted by the California Hydrogen 

Highway Network (see Attachment H) and as CARB staff is aware, the cost of 

hydrogen produced by different methods varies dramatically, in this case ranging 

from $1.44 to more $7.00 per kilogram. As hydrogen fuel prices will be related to 

the marginal cost of the source of the last increment of hydrogen needed to 

satisfy demand, it is crucial that CARB identify the sources of supply it assumes 

will be added to satisfy the increased demand. The price of hydrogen will be 

critical to decisions made regarding supply increases and also to FCV purchase 

decisions made by consumers.”

This comment is the same as comments 8-1 and 26-3. Please refer to 

responses above (e.g., 8-1, 26-3) related to siting assumptions and applicable 

existing regulations. 

CFO – L27 Miles Heller, British Petroleum Comment and Response

27-1 The commenter supports the comments submitted by WSPA. Appendix 1 under 

the ISOR heading of the comment letter inquires “Do the environmental analyses 

include the consideration of additional impacts for construction, traffic, etc. for 

such stations?”

Please refer to responses CFO – L26. Regarding the EA and the impact 

analysis, Chapter 5 “Impacts and Mitigation” provides a full analysis of potential 

impacts that may result from establishment of CFO facilities and identifies 

mitigation.
44
45

Transcript – Edward Olson and Jay Bajaria Public Comments – Oral Public 

Comments and Responses

Edward Olson 

The commenter expresses “I have been in gas station business and car wash 

business over 30 years, owning several gas stations in both Orange County and 

San Diego County. The first major concern I had with hydrogen pumps is the 

safety of my customers and employees. The pumps will contain like 5,000 to 

10,000 PSI. The risk of explosion, especially with the customers is using a cell 

phone while pumping or if a customer forgets the nozzle in their car and drive off 

is very scary. We live in a busy and fast-paced world, and we have this issue of 

people driving off with the nozzles occur often at my stations. If this occurs with 

the hydrogen pump, this will not only be costly to the place but can be extremely 

dangerous to my station and to the customers of our stations.” 

Jay Bajaria

The commenter expresses “...And as for the safety of hydrogen, I would not be 

comfortable having it on my property from a safety and liability perspective. 

Often see cars driving away from the pump with the nozzle in their car. I can 

only imagine the damage and destruction that would be caused by a car driving 

off with a hydrogen nozzle that is under pressure up to 10,000 PSI. I would ask 

that you please let business owners and property owners to decide what services 

to provide rather than forcing it on them. . 

ARB agrees that hydrogen, as with gasoline, is a fuel that requires very careful 

handling. The EA Environmental and Regulatory Setting chapters describe 

hazards associated with hydrogen as well as all applicable laws and regulations. 

The EA starting at page 158 discloses that the project could potentially create a 

significant hazard to the public or the environment through reasonably 

foreseeable upset and accident conditions involving the release of hazardous 

materials into the environment and that this impact would be potentially 

significant. This EA found that this impact could be reduced to a less-thansignificant level by mitigation that can and should be implemented by local lead 

agencies, but the authority to impose mitigation is beyond the authority of the 

ARB. The potential for hazard related to customers driving off with the nozzle still 

attached would be alleviated because the cars and fueling stations are designed 

so that they communicate electronically (e.g. when there is a fueling connection, 

the car and pump communicate electronically and cannot be started up)

minimizing the potential for adverse impact. 
46

ZEV/CFO – Bd L1 Cathy Reheis-Boyd, Western States Petroleum Association 

Comments and Responses

A memorandum from Sidley Austin LLP o/b/o Western States Petroleum Association 

(WSPA) was attached to Catherine Reheis-Boyd’s letter of March 21, 2012 regarding 

“Comments on the Response to Comments on the Advanced Clean Cars Environmental 

Analysis”. 

The commenter incorporates comments L26-1 – L26-17 previously submitted during the 

45-day review period. According to the commenter, specific comments on the 

Response to Comments (RTC) document pertain to L26-5, L26-9, L26-10, L26-12, 

L26-13, and L26-15. 

Comment Regarding L26-1 to L26-17: The responses by ARB staff do not address 

each of the legal and factual deficiencies identified by WSPA in its comments submitted 

on January 25, 2012. WSPA Stands by and hereby incorporates each of those 

comments. 

Response: ARB disagrees. Each of the legal and factual deficiencies that the 

commenter contends to exist in its previous comment letter (L26) has been 

responded to, and there are no deficiencies.

More specifically, WSPA reiterates that ARB is seeking to avoid its regulatory 

obligations by asserting that its analysis is limited to programmatic issues, whereas, the 

impacts from the construction of 450 clean fuels outlets should be assessed, one-byone, at a later date by local governments. 

An analysis of the cumulative impacts from the construction of as many as 450 CFOs 

and the development of additional hydrogen fuel production facilities in California should 

not be passed off to local governments that would not be in a position to assess the 

likely overall impact. Doing so amounts to a regulatory shell game.

Response: ARB disagrees. The programmatic approach is appropriate and 

acceptable. ARB cannot speculate as to the locations of the fueling stations, 

whether they would be located at existing facilities or would be located 

individually. The EA discloses potential environment impacts related to the 

foreseeable compliance responses by the regulated community on a statewide 

level, and identifies mitigation. The level of specificity required in an 

environmental analysis depends on the degree of specificity of the activity under 

review. For example, an EIR for a construction project must be more specific 

and detailed than an EIR for a general plan or other general policy. An EIR for a 

policy or plan focuses on the indirect secondary effects of that plan or policy and 

cannot be as detailed as a subsequent EIR on the specific construction projects 

that would be expected to follow. (See CEQA Guidelines section 15146, sub 
47

(b).) ARB’s preparation of the EA for the ACC Program is similar to the approach 

for an EIR prepared for a plan or policy. In preparing the EA for the ACC 

Program, ARB cannot speculate about details that would be provided in any 

subsequent project specific environmental analyses. ARB analyzed construction 

impacts and took the conservative approach in finding that construction may 

result in potentially significant and unavoidable impacts.

Appendix B is an environmental analysis prepared as in accordance with Public 

Resources Code section 21080.5, subdivision (d)(3) and ARB’s regulations at 

CCR sections 60005 through 60007. The programmatic approach to the analysis 

is informed by CEQA Guidelines section 15168, which describes the parameters 

for a program EIR. Section 5 of Appendix B (Impact Analysis and Mitigation) 

discloses impacts to the resource areas identified on the CEQA checklist.

The EA appropriately provides a programmatic level of analysis of the potential 

impacts that would be expected from implementation of the proposed regulation. 

The number of stations has little or no bearing on the impact analysis, as each 

station would be subject to local determination of whether there would be 

adverse environmental impacts, or whether the project would be exempt.

The commenter is also referred to Response to Comment 26-6. 

Lastly, construction-related air impacts associated with implementation of the 

proposed ACC Program are described in the air quality resource section of the 

EA. The response on page 6 of this document provides additional information 

regarding the EA’s programmatic approach. 

Likewise, ARB ignores the possible hazards associated with the development of 

hydrogen fueling outlets and the impact of those risks on local fire protection and public 

service agencies. 

Response: ARB disagrees. The commenter asserts that some impacts 

discussed in the Burbank document are likely to be common to hydrogen 

facilities wherever they are located, such as air emissions, noise, public services 

(including fire protection), and transportation and traffic. Contrary to commenter’s 

assertion, a major focus of the EA was to consider impacts that would be 

common to hydrogen facilities wherever they are located such as air emissions, 

noise, public services (including fire protection), and transportation and traffic 

(see EA Chapter 5 Impacts Analysis and Mitigation). The commenter is referred 

to the response provided for L26-4.

Comment Regarding L26-5 

The response by the ARB does not represent a reasonable response to the comment.
48

In adopting the Advanced Clean Cars Regulation Package via resolution 12-11, the 

Board cited, among others, the following sections of the California Health and Safety 

Code as providing authority for its action: 

43013. (a) The state board shall adopt and implement motor vehicle emission 

standards, in-use performance standards, and motor vehicle fuel specifications 

for the control of air contaminants and sources of air pollution which the state 

board has found to be necessary, cost effective, and technologically feasible, to 

carry out the purposes of this division unless preempted by federal law.

43018. (a) The state board shall endeavor to achieve the maximum degree of 

emission reduction possible from vehicular and other mobile sources in order to 

accomplish the attainment of the state standards at the earliest practicable date.

43018. (c) In carrying out this section, the state board shall adopt standards and 

regulations which will result in the most cost-effective combination of control 

measures on all classes of motor vehicles and motor vehicle fuel...

43018.5. (a) No later than January 1, 2005, the state board shall develop and 

adopt regulations that achieve the maximum feasible and cost-effective reduction 

of greenhouse gas emissions from motor vehicles.

All of the above sections clearly require the ARB staff to demonstrate that a proposed 

regulation or package of regulations, achieve the maximum feasible reductions in 

emissions of air pollutants and greenhouse gases in the most cost-effective manner 

possible.

Response: The commenter ignores the fact that CFO will ultimately be a 

necessary component of the cost-effective emission reductions to be achieved by 

the Advanced Clean Cars (ACC) Regulation Program. Accordingly, the 

commenter’s contention that the changes to the CFO Regulation may not be 

immediately cost effective if adopted without the other components of the ACC

Regulation Package does not affect CARB’s authority under sections 43013, 

43018, and 43018.5.

In order to satisfy the mandatory obligation imposed by the legislature, the ARB must 

show how each component of the Advanced Clean Cars Regulation Package fits 

together with the others, and demonstrate that the combination of the component 

regulations achieves greater emission reductions in a more cost-effective manner than 

some other combination of the proposed regulations and/or proposed regulations and 

alternatives. 

Response: This comment is related to how the regulations fit together and is not 

directly related to the EA, and emission reduction achievement is addressed in 

the respective staff reports.

As indicated in the CFO staff report, the CFO regulation is a complement to the 

ZEV program. Specifically, if the automobile industry makes the business 
49

decision to meet a portion of the ZEV mandate with FCVs, the CFO regulation 

will be necessary to meet the fueling needs of those vehicles. Staff’s analysis in 

the ZEV ISOR assumes increasing number of FCVs are produced in compliance 

with the ZEV requirements, and assumes hydrogen fueling infrastructure is 

readily available. Therefore, according to staff’s analysis, sufficient hydrogen 

infrastructure is necessary to the adoption of FCVs and ultimately the overall 

emission reductions expected under the ACC program (see response to 

comment 26-9 regarding ARB’s 2009 light-duty vehicle analysis).

Further, because the ZEV regulation would be flexible in that manufacturers 

could fulfill their requirements by marketing FCVs, as well as other types of 

vehicles, it cannot be determined ahead of time exactly when the CFO regulation 

would be activated by the regional or statewide trigger levels. This is not a case 

where one regulation should preclude another. The proposed ACC Program will 

result in a fleet of vehicles with supporting infrastructure. One cannot occur 

without the other. The commenter is also referred to Response to Comment 

L26-5.

The commenter argues that some other combination of regulations should have 

been considered, but does not offer an alternative to the ACC Program that 

meets the overall objectives. WSPA’s comment letter (CFO - L26) offers three 

alternatives to the CFO regulation that ARB responded to and were determined 

to be infeasible as they do not meet the objectives of the ACC Program.

ARB staff admits in response 26-5, it has not fulfilled this obligation with respect to the 

CFO regulation.

Response: ARB disagrees. The EA provides a detailed description of the 

project being proposed for approval, which includes the three regulatory actions. 

The project description should not be a smaller portion of the entire proposed 

project being considered for approval as the commenter suggested in 

CFO – L26. The EA informs the decision makers of the potential environmental 

impacts associated with the CFO amendments while providing an integrated, 

coordinated impacts analysis of all the proposed ACC Program’s amendments. 

ARB has the authority to define the proposed project. ARB disagrees that the EA 

does not provide a basis for action by the Board on the proposed ACC Program. 

The entire ACC Program has been fully analyzed and the Board has the 

discretion to approve the entire project or some portion thereof.

Further, it is unacceptable for ARB’s response to this criticism to be essentially that it 

does not have to do the required analysis. The CFO regulation is a mandate that 

requires existing major producers and importers of transportation fuels to supply and 

create a dispensing infrastructure for hydrogen as a means of lowering the costs of 

compliance with the ZEV mandate for manufacturers that elect to produce fuel cell 

vehicles and offer them for sale. There is no requirement that vehicle manufacturers 

produce battery electric vehicles. Absent the CFO regulation, vehicle manufacturers 
50

could still choose to produce fuel cell vehicles, but another means of providing a 

hydrogen refueling infrastructure would have to be found.

Because the CFO regulation is not needed to implement the LEV III or ZEV regulation, 

its implementation produces no reductions in any pollutant or greenhouse gas. 

Response: The CFO regulation ensures sufficient hydrogen infrastructure is in 

place to support FCVs resulting from increased ZEV requirements. A FCV 

produces fewer emissions on a well-to-wheel basis than a gasoline vehicle. Any 

FCVs produced in compliance with the ZEV regulation may also be used towards 

a manufacturer’s LEV III criteria pollutant average as well as its LEV III GHG 

average. When a manufacturer uses FCVs to help comply with its fleet average 

standards, the vehicle can be directly attributed to the emission reductions in the 

LEV III fleet standard. The CFO regulation ensures those vehicles are properly 

supported with appropriate infrastructure. Additionally, in ARB staff’s 2009 

analysis, FCVs must be predominate on-road vehicle technology in the 2050 

timeframe in order to achieve the GHG emission reductions necessary to meet 

California’s long term goals. See Response to Comment L26-9 for further 

elaboration on ARB’s 2009 light-duty vehicle analysis. 

While the commenter contends that auto manufacturers could choose to produce 

FCVs absent the CFO regulation because “another means hydrogen refueling 

infrastructure would have to be found,” the commenter does not support the 

contention with examples of other means of providing hydrogen fueling 

infrastructure. The commenter is referred to Response to Comment L26-15. 

The CFO ISOR describes the efforts underway and government funding 

dedicated toward developing hydrogen infrastructure to support the projected 

early FCV deployments through 2014. Absent continued government funding, 

staff could find no other viable alternative for guaranteeing that hydrogen 

infrastructure develops at a pace to support the FCV numbers that ARB predicts 

are necessary to achieve the long-term GHG emission reductions. Without the 

guarantee of that hydrogen infrastructure will keep pace with FCV deployments, 

the ACC program could not achieve its objectives. 

However, its implementation could greatly increase the cost of the total Advanced Clean 

Cars Regulatory Package, and the CFO regulation could require substantial 

construction activities which could have a host of adverse environmental impacts. 

Response: The economic analysis of the Advanced Clean Cars program 

(presented in the LEV ISOR) includes the costs associated with compliance with 

the Clean Fuels Outlet regulation and found positive economic benefits from the 

entire program. In addition, regardless of whether a facility is sited at an existing 

fueling facility versus other locations, the EA discloses the impacts associated 

with site preparation and construction at a programmatic level, and analyzed the 

relative magnitude of emissions related to construction activities. The 

commenter is also referred to Response to Comments L26-7 and L26-10.
51

Again, it is unacceptable for ARB to claim that those impacts do not need detailed study 

and mitigation just because they are not large enough to offset the greater 

environmental benefits ARB claims will result from the LEV III and ZEV regulation.

Response: If commenter is saying that ARB is claiming that impacts don’t need 

detailed analysis (unclear), we disagree. The EA discloses potential environment 

impacts related to the foreseeable compliance responses by the regulated 

community on a statewide level, and identifies mitigation. The level of specificity 

required in an environmental analysis depends on the degree of specificity of the 

activity under review. For example, an EIR for a construction project must be 

more specific and detailed than an EIR for a general plan or other general policy. 

An EIR for a policy or plan focuses on the indirect secondary effects of that plan 

or policy and cannot be as detailed as a subsequent EIR on the specific 

construction projects that would be expected to follow. (See CEQA Guidelines 

section 15146, sub (b).) ARB’s preparation of the EA for the ACC Program is 

similar to the approach for an EIR prepared for a plan or policy. In preparing the 

EA for the ACC Program, ARB cannot speculate about details that would be

provided in any subsequent project specific environmental analyses. 

ARB’s programmatic approach to its analysis on the potential indirect impacts 

related to the regulated communities’ foreseeable compliance responses is 

necessarily general, programmatic and qualitative in nature. A more detailed 

analysis is not reasonably feasible because it is unknown what specific future 

actions will be and any site-specific impacts cannot be known and assessed with 

any level of specificity at this time. Therefore, details of project-level impacts are 

properly deferred to future project level review when those details can be known. 

This is an appropriate approach under CEQA. (See In re Bay-Delta 

Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 

Cal.4th 1143.) 

When potentially significant environmental impacts are identified in the EA, 

feasible mitigation measures have been presented to substantially reduce the 

effects. As stated in the EA, ARB does not possess the authority to require 

project-specific mitigation measures for facilities approved by other land use or 

permitting agencies if impacts are identified for those projects. Because the 

authority to determine project-level impacts and require project-level mitigation 

lies with the land use and/or permitting agency for individual projects, and 

project-specific details about the impacts and mitigation cannot be known at this 

stage, there is inherent uncertainty in the degree of impacts identified and 

mitigation ultimately implemented. Consequently, the EA took the conservative 

approach in its analysis of potential impacts and in its post-mitigation significance 

conclusions (i.e., tending to overstate impacts) and, for CEQA compliance 

purposes, discloses that potentially significant impacts related to the 

development of fueling stations and new or modified manufacturing facilities may 

be significant and unavoidable. ARB expects, however, that as the proposed 

ACC Program is carried out, these significant impacts can and should be 
52

resolved and reduced to insignificance by other government agencies, in 

accordance with their authorities and project review procedures. The commenter 

is also referred to Response to Comment L26-2.

No Comment on L26-6, L26-7, or L26-8

Comment Regarding L26-9 In responding to Comment 26-9, the ARB takes the 

position the CFO regulation is a necessary component of the Advanced Clean Cars 

Regulation Package without which the emission reductions attributed to the ZEV 

regulation will not be achieved. 

Response: ARB’s 2009 light-duty vehicle analysis (ZEV ISOR Reference, ARB 

2009b) used a number of assumptions in determining the mix of vehicles that 

could achieve 80% emissions reductions below 1990 levels by 2050. A wellsupported assumption was that a variety of vehicle technologies was needed to 

ensure the 2050 goal was met. 

“Each technology has a large set of challenges which makes market 

growth uncertain. All three (BEVs, FCVs, and PHEVs) offer energy 

security and fuel diversification over time. But it is too early to pick winners 

at this time. Doing so would dramatically increase the risk of missing the 

2050 GHG goal because it would create no room for technology or market 

failures. Discussions between ARB and automotive firms confirm this – it 

is impossible for industry to know exactly what consumers will demand 

and accept in the future. BEVs will most likely play a role and obtain a 

sizable portion of the long-term market, focused on small vehicle platforms 

in urban areas. For long-range larger applications, both FCVs and PHEVs 

with biofuels offer deep GHG reductions, but both have large market 

uncertainties. FCVs offer deep well-to-wheel (WTW) GHG reductions and 

fast refueling, but creating the fuel infrastructure is a substantial challenge. 

PHEVs offer less infrastructure challenges but would rely on biofuels in 

quantities that may exceed the 2050 limit of supply for passenger 

vehicles.” (pg. 26-27)

Additionally, manufacturers have historically complied with a variety of ZEV 

technologies in meeting the ZEV mandate. Manufacturers have invested billions 

of dollars into various ZEV technologies, including hydrogen fuel cell vehicles, 

and have publicly announced availability of those vehicles in the next three to 

four years. (See ZEV ISOR reference Toyota, 2011d, Bloomberg, 2010, USA 

TODAY, 2010, and response to CFO FSOR comment 37). Therefore, it is 

reasonable to assume all ZEV technologies, including FCVs, would continue to 

be produced throughout the regulation, making the CFO regulation essential to 

the success of those vehicles and to achieving the long-term emission reduction 

goals. 
53

The ZEV regulation contains no requirement that any vehicle manufacturer produce and 

offer a fuel cell vehicle for sale in California. Manufacturers are free to choose the types 

of ZEVs they want to produce based on the cost of the vehicles and the same 

considerations regarding consumer preferences that they apply in making decisions 

about producing other types of vehicles. 

Response: The commenter is correct in that automakers are free to choose 

their ZEV compliance path and are not told which types of vehicles to produce. 

In fact, automakers routinely share their ZEV compliance strategies with ARB (in 

confidence), and to the public via press releases, board hearing testimony, etc. 

Based on both confidential and public information, ARB has learned that (1) that 

no two automakers have the same plans for ZEV compliance and, (2) 

collectively, automakers plan to comply with ZEV using BEVs, FCVs and PHEVs. 

Because no manufacturer must produce a single fuel cell vehicle in order to comply, the 

CFO regulation is not a necessary condition to compliance with the ZEV mandate. 

Response: Per the CFO ISOR and the regulation language, if no FCVs are 

projected to be produced, then the regulation will not be triggered. The 

Department of Motor Vehicles (DMV) records and auto manufacturer projections 

must indicate that the volume trigger is reached before the regulation can be 

triggered for a particular fuel. These trigger determinations, including a summary 

of the information and analysis relied upon, will be shared with interested parties 

per section 2303.5(b) of the regulation. Given the above, the CFO regulation will 

not require anyone to build hydrogen stations if automakers: (1) choose to 

comply with the ZEV mandate strictly via BEVs and PHEVs, or (2) choose to 

comply with FCVs but place those FCVs in other states. See response to CFO 

FSOR comments 38 and 39 regarding the ZEV travel provision. Importantly, as 

discussed above and in responses to CFO FSOR comments 37, FCVs are 

included in many automakers ZEV compliance plans, and as such, the CFO will 

be needed to complement many auto manufacturers’ ZEV compliance strategies. 

Without CFO or some other means to guarantee adequate fueling infrastructure, 

the relatively modest government investments toward hydrogen infrastructure will 

not be sufficient to develop FCV technology to commercialization because 

availability of fuel will be a critical factor in consumer choice. 

It is also important to note that automakers must send clear signals that they plan 

to deploy enough FCVs to trigger the regulation. One such signal would be 

targeted early FCV deployments in the areas where there are stations today and 

that under construction. The signals that automakers receive from the early 

deployments will help them chart their ZEV compliance path including which 

type(s) of ZEV technologies to introduce.

Next, ARB states, in defending its emission analysis of fuel cell vehicles relative to 

gasoline vehicles, that, 
54

”Measuring emissions of one alternative fuel versus another only demonstrates 

which alternative fuel is cleaner, whether or not the alternative fuel has any 

emissions benefit within the existing transportation sector that is and will 

continue to be dominated by gasoline vehicles in the timeframe evaluated.”

However, a comparison of the relative emissions of electric and fuel cell vehicles is 

precisely the point that has to be considered in the EA with respect to the CFO 

regulation. The CFO regulation provides a mechanism designed to lower the cost of 

compliance with the ZEV mandate for vehicle manufacturers by providing them with a 

fuel cell vehicle refueling infrastructure at no cost to the vehicle manufacturers. This 

provides an incentive to vehicle manufacturers to build fuel cell vehicles. If fuel cell 

vehicles are not as clean as battery electric vehicles, as was illustrated on pages 36 

through 38 of the WSPA comments, and the CFO regulation causes the production of 

more fuel cell vehicles than would otherwise be produced, the(n) impact of the CFO 

regulation is increased relative emissions that must be considered and mitigated in the 

EA. 

Response: Although the comment is not directly related to the EA, ARB 

disagrees with many aspects of this comment. First, auto manufacturers’ cost of 

compliance with the ZEV mandate reflects costs associated with developing, 

producing, commercializing and marketing ZEVs, and does not include the cost 

of installing and operating fueling infrastructure (hydrogen or electric charging). 

While the presence of infrastructure affects commercialization and vehicle sales, 

which helps auto manufacturers earn a return on their investment, the ZEV 

regulation has never required auto manufacturers to the bear the cost of 

developing fueling infrastructure. The “incentive” to develop one ZEV technology 

over the other is based on auto manufacturers’ ability to earn credits for ZEVs 

delivered for sale and placed in service. Credits are determined based on the 

credit structure adopted by the Board, as outlined in the ZEV ISOR (see 

response to CFO FSOR comments 50-52). 

Although it is not clear, it appears that the commenter is suggesting that ARB 

must consider and mitigate the relative emissions increases of FCVs when 

compared to BEVs. The rationale being that the CFO regulation “causes the 

production of more FCVs than would otherwise be produced.” ARB’s emissions 

analyses evaluate benefits compared to an existing baseline; and FCVs clearly 

show emissions benefits compared to the gasoline baseline. When evaluating 

emissions associated with providing ZEV fuels, it is important to note that 

emissions can be affected positively (or negatively) by use of renewable 

resources and by the time of day that BEV drivers plug in (i.e., on-peak vs. offpeak). 

Also, as explained in above, it is ARB’s firm belief that a diverse ZEV portfolio, 

with varying sizes, payload capacities and ranges, is critical to replacing the fleet 

of combustion-based vehicles and achieving long-term emission reduction goals. 

As discussed in the ZEV ISOR, BEV technology is best suited (and most 

economical) with smaller vehicle platforms, and FCV technology is more suitable 
55

and will be less expensive compared to BEVs in the larger vehicle platforms. If 

automakers are to introduce increasingly more ZEVs into the fleet, FCVs are 

necessary to fulfill the customers' needs for vehicles with longer range and larger 

platforms. Conversely, without hydrogen and FCVs, drivers would likely have to 

resort to combustion technology vehicles to meet needs that cannot be met with 

smaller BEVs. The commenter is also referred to the response regarding L26-9 

on page 7 of this document.

Further, the CFO regulation is in conflict with the Health and Safety Code sections cited 

as ARB is providing the authority for the adoption of the Advanced Clean Cars 

Regulation Package (as discussed in the comment on Comment 26-5) which requires 

that the entire package achieve the maximum feasible and cost-effective emission 

reductions as it adds cost and decreases emission benefits.

Response: As discussed in the response regarding L26-5, ARB disagrees that 

the CFO regulation is in conflict with HSC sections for authority. 

Comment Regarding L26-10 The ARB fails to respond to the comment and tries to 

conceal emissions due to the CFO regulation in the emission reductions associated with 

the other elements of the Advanced Clean Cars Regulatory package. As noted above, 

there is no requirement that any manufacturer produce and offer a fuel cell vehicle for 

sale in California, and it appears that fuel cell vehicles have higher emissions relative to 

electric vehicles. 

Further, construction associated with hydrogen refueling stations will lead to further 

increases in emissions which must also be quantified to determine to what degree they 

are offsetting benefits provided by the other elements of the CFO regulation. Indeed, 

ARB cannot avoid that it has offered absolutely no quantitative analysis of the 

environmental impacts associated with the construction of as many as 450 hydrogen 

fueling stations.

Response: As noted above, automakers will comply with the ZEV mandate by 

producing both BEVs and FCVs. The extent to which hydrogen fueling 

infrastructure will be required will depend on the number of FCVs produced.

ARB disagrees with the commenter’s contention that emissions associated with 

construction are not quantified, and that ARB did not respond to the comment. A 

relative magnitude of emissions associated with construction are provided in EA 

Impact Analysis and Mitigation Chapter 5. The commenter is referred to RTC 26-

10, 26-9, 26-2, and ARB’s response regarding programmatic analysis related to 

26-5.

Comment Regarding L26-11 The ARB fails to address the comment. The comment 

addresses the need for the EA to estimate how much new hydrogen generation 

capacity will be required and what the environmental impacts would be that are 

associated with the construction and operation of those plants. Further, the EA at page 

135 fails to even address that new hydrogen generation capacity and modifications to 
56

existing facilities to increase production volumes will both lead to increases in 

greenhouse gas emissions.

Response: ARB disagrees that the comment was not responded to. The EA 

includes a discussion of the effects of FCVs on merchant hydrogen facilities, and 

clearly indicates that expansion of construction of new facilities may be needed in 

the future. Because CEQA discourages speculation, the EA does not speculate 

as to the location or size of such future facilities. The EA also indicates that new 

generation of hydrogen may result in additional or expanded hydrogen plants in 

the Regulated Community Compliance Response section, and in the Impacts 

Analysis and Mitigation impacts associated with construction of such facilities are 

analyzed in Chapter 5. The commenter is reminded that the EA is programmatic 

and is referred to RTC 26-10, 26-2 and to the response related to the 

programmatic analysis in this document.

Comment Regarding L26-12 The ARB does not address or respond to WSPA’s 

comment. WSPA highlighted that the EA fails to analyze the nature and magnitude of 

the risk associated with hydrogen transport, hydrogen fueling, or accidents involving 

hydrogen fuel vehicles. It is not enough for ARB to state that the production and 

transport of hazardous materials already may be subject to regulation under federal and 

state law. Rather, ARB has an obligation to consider the magnitude of any additional 

risk and determine whether mitigation efforts are necessary or appropriate. Nor can 

ARB void this conclusion by arguing that WSPA has offered no evidence of “the 

potential for explosion risk.” That objection is meritless. In its response, one paragraph 

earlier, ARB states that the EA addresses the “explosion risk from hydrogen transport 

and use” by identifying “the respective governing laws that when complied with, would 

avoid or reduce this potential impact.” ARB recognizes that there is a risk of explosion 

from hydrogen, but never attempts to assess its magnitude or address mitigation efforts 

in any meaningful way.

Response: ARB used the CEQA Checklist to determine the potential impacts 

associated with hazards. ARB found the potential for risk of upset and accident 

conditions involving the release of hazardous materials to the environment to be 

potentially significant and unavoidable. ARB is not required to quantify at 

speculative levels with a programmatic document. The commenter is referred to 

Response to Comments L8-1, L26-4, and L26-12.

Comment Regarding L26-13 The ARB’s response is untenable. The ARB asserts 

that WSPA has not produced evidence of the risk of fire or explosion, but as noted 

above, ARB has acknowledged in its response that EA addresses “the ignitable 

characteristics of explosive material.” WSPA is not required to provide additional 

evidence. While WSPA is not commenting in this response on the technical aspects of 

the possible risks associated with hydrogen refueling, ARB should evaluate safety risks 

and how they will be managed as part of the administrative process, including any 

needed support from public service agencies.
57

Response: The EA indicates that facilities would be sited appropriately in areas 

zoned for such facilities. The hazards related to fueling stations are not new 

risks, and laws and zoning requirements would be complied with. 

Chapter 5 indicates that as discussed in Chapter 4, Regulated Community 

Compliance Responses, implementation of the proposed ACC Program could

result in the construction and operation of new manufacturing plants that 

specialize in the production of propulsion batteries and fuel cells. New hydrogen 

fueling stations could also be constructed and operated along with modifications 

to existing hydrogen production plants. These stations would likely occur within 

existing footprints or in areas with consistent zoning, therefore, not affecting the 

provision of public services. As a result, this impact would be less than 

significant. The commenter is also referred to Response to Comments L26-3 

and L26-13.

No Comment L26-14

Comment Regarding L26-15 

ARB’s response does not address WSPA’s comments about its failure to adequately 

consider feasible alternatives to the CFO regulation, or respond to the in-home fueling 

alternative offered by WSPA. First, ARB is required to develop and evaluate a 

reasonable range of alternatives but has failed to satisfy that threshold obligation. 

Second, the ARB’s response does not adequately address WSPA’s comment that 

“deployment of fuel cell vehicles could also create a market for in-home hydrogen 

fueling” and that “in home fueling for natural gas vehicles already exists.” This 

alternative is not infeasible merely because ARB states that some fuel cell vehicle 

owners might not be able to benefit from it based on where they live. The same would 

be true of a fuel cell vehicle owner who lived a significant distance from metropolitan 

areas where ARB states that clean fuel outlets likely would be constructed.

Further, the “feasibility” concerns expressed by ARB are not materially different from the 

feasibility and cost concerns inherent in the CFO regulation itself.

Response: The project alternatives are for the entire ACC Program, not a single 

regulation. ARB disagrees that it did not fulfill the obligation to consider 

alternatives to the ACC Program. As for the in-home fueling, ARB posted a 

revised response to 26-15 on March 20 that addresses the in-home fueling 

alternative to the CFO regulation. The following is the entire response: 

“In accordance with the substantive requirements of CEQA, the 

alternatives in the EA represent a “reasonable range” that could potentially 

attain most of the basic project objectives while having the potential to 

reduce or eliminate significant environmental effects. The range of 

alternatives analyzed in the EA was governed by the “rule of reason,” 

requiring evaluation of those alternatives “necessary to permit a reasoned 

choice.” (See CEQA Guidelines, section 15126.6(f). The candidate 
58

alternatives must have the potential to meet the project objectives and be 

potentially feasible, based on technical, legal and regulatory grounds, to 

be considered for evaluation. 

The project consists of a set of regulations that comprise the proposed 

ACC Program, of which the CFO regulation is one component. The EA 

examined the “No Project”, a More Stringent Emissions Standard in the 

Low Emission Vehicles and the Zero Emission Vehicle Regulations, a 

Less Stringent Emissions Standard in the Low Emission Vehicles and the 

Zero Emission Vehicle Regulations, a Clean Fuels Outlet Regulation 

Based on a Memorandum of Agreement with Major Refiners and 

Importers of Gasoline, and three other alternatives that were considered 

by rejected as infeasible. These include a Feebate Regulation, Targeting 

High-Emitting Vehicles in the Existing Fleet and targeting Battery Electric 

Vehicles or Hydrogen Fuel Cell Vehicles Only. 

The commenter suggests additional alternatives to the CFO regulation 

that commenter believes ARB should analyzed in an EA. These include 

in-home fueling, an alternative where hydrogen fueling could be 

accomplished through exchange of canisters, and another that targets 

BEVS. The commenter suggests an “exchange of canisters for light 

electric scooters and micro cars alternative” as a viable alternative to 

hydrogen fueling infrastructure by automobile manufacturers, government 

and academic agencies, or other parties involved in researching the 

advancement of FCVs. 

It is not clear whether or not the commenter is suggesting that in-home 

refueling appliances should be considered as an alternative to requiring 

public infrastructure, and therefore arguably no further response is needed 

here. In the event it is determined that the commenter did properly present 

this as an alternative, it is rejected for a number of reasons. 

First, ARB has determined that such in-home appliances do not meet the 

overall objectives of the Advanced Clean Car program, and poses 

feasibility challenges. The home energy station, such as the one under 

development by Honda, considers a whole energy approach using natural 

gas already supplied to the home to provide heat, energy, electricity, and 

hydrogen. This conceptual system may not be available to all FCV 

owners, specifically those who do not live in single-family dwellings, those 

whose homes do not have supplied natural gas or cannot be modified to 

accommodate such an appliance, and those who cannot afford it. Still in 

the development stages, this home energy and hydrogen fueling station 

concept shows promise for some applications, but development has not 

advanced sufficiently enough to be a likely fuel supply scenario in time for 

FCV deployments .
59

The canister alternative would not meet the overall objective of the ACC 

Program and would not serve the same purpose as the proposed 

regulation. The suggested alternative would reduce the overall scale of 

the regulation, and would result in different safety issues and a different 

suite of potential environmental impacts. Additionally, there could be 

feasibility issues that could be challenging to address. The alternative 

would require that NHSTA approve the full- function, highway legal 

vehicles to use detachable canisters of high pressure hydrogen. FCVs 

are designed to achieve a driving range similar to today’s vehicles. The 

mass of storage systems required to achieve this range can be greater 

than100 kg. The idea of routinely swapping storage containers weighing 

greater than 100 kg obtained at retail outlets would likely be impractical to 

perform at home. In addition, drivers and vehicles used for transporting 

high-pressure gas canisters would likely be required to obtain special 

permitting and licensing, thereby preventing the average fuel cell vehicle 

owner from purchasing canisters, transporting and storing them for use in 

their vehicles. 

The BEV alternative that the commenter is advocating includes electric 

vehicle charging and CFO. BEV-only ZEV scenario would place more 

focus on public fast-charging facilities, and presents several challenges 

surrounding the necessity for a mandate, the parties who incur the cost, 

and the establishment of a standard for fast-charging the plug. The CFO 

ISOR analysis found that a charging infrastructure mandate is 

unwarranted and could hinder the current development of public charging 

infrastructure. Staff also found that more information is needed to 

determine what should done to from a regulatory perspective to increase 

BEV sales and electric miles traveled as BEVs are experiencing a 

successful commercial launch today without a public charging mandate. 

For this reason, and with the support of and input from auto manufacturers 

and electric vehicle advocates, staff’s regulatory proposal included the 

public charging infrastructure needs assessment (section 2302(c)). At this 

time, it is uncertain that regulatory mandate for charging infrastructure is 

necessary to promote BEVs, but ARB intends to find out via the 

assessment proposed in section 2302(c). If the commenter is suggesting 

that regulated parties be allowed to choose to build charging stations 

instead of hydrogen stations, the end result would be insufficient hydrogen 

stations necessary to promote commercialization of FCVs. If the

commenter is suggesting an alternative that mandates fueling 

infrastructure for all ZEVs, then they would be required to provide both 

charging infrastructure and hydrogen dispensers based on on-road ZEVs 

and automaker projections.

Further, and although highly unlikely, battery fires have occurred and the 

EA discloses the potential for that impact. This contention is in contrast 

with the documents provided by the commenter that show that no impact 
60

would result with hydrogen fueling, per the NOEs and the mitigated 

negative declaration submitted. 

The commenter repeats several concerns regarding hydrogen safety and 

public interaction with a new fuel that have been addressed in the EA. At 

this point, the commenter should be well aware that, regardless of the 

vehicle or fuel type, commercial introduction of any new technology will 

depend on strict adherence to codes and standards designed to protect 

the “lay person” against exposures, fires, explosions, or electrocution.”

The alternatives to the CFO regulations suggested by the commenter, 

including the in-home fueling alternative, do not meet the ACC Program 

objectives and present feasibility challenges”.

Regarding ARB’s above response, the commenter disagrees with ARBs 

conclusion that home hydrogen refuelers present feasibility challenges because 

some FCV owners may not be able to benefit. While the commenter is correct in 

stating that deployment of FCVs could create a market for home refuelers, ARB 

does not foresee such appliances playing significant role in the hydrogen supply 

chain, at least not to the extent to warrant evaluation as a viable alternative to 

CFO regulation, much less the ACC Program.