California State Nonroad Engine and Vehicle Pollution Control Standards; Decision of the 

Administrator; Authorization of Tier II Emission Standards for Marine 

InboardiSterndrive Spark-Ignition Engines 

I. INTRODUCTION 

By this decision, issued under section 209(e) ofthe Clean Air Act, as amended (the 

"Act"), 42 U.S.C. section 7S43(e), the Environmental Protection Agency ("EPA") today is 

authorizing the State of California to enforce regulations which establish a second tier (Tier II) of 

standards for spark-ignition inboard and sterndrive (IBISD) marine engines. This action is the 

resolution of EPA's prior deferral of authorization of these Tier II IB/SD standards, announced at 

the time EPA granted California authorization for its marine spark ignition engine regulations for 

outboard marine engines, personal watercraft engines, and Tier I ofthe California IB/SD marine 

engine emission standards.l 

The California Air Resources Board ("CARB") requested EPA authorization of the 

IB/SD marine engine emission standards by letter dated March 2, 2004.2 As required by the Act, 

EP A offered the opportunity for a public hearing and requested public comments on these new 

standards, as well as on earlier requests for authorization of outboard marine engine standards 

and personal watercraft engine standards, by publication of a Federal Register notice to such 

effect on January 12,2005.3 EPA received a request for a hearing from the National Marine 

1 72 FR 14546 (March 28, 2007). 


2 Letter from Catherine Witherspoon, Executive Officer, CARB to Administrator, EPA regarding its Request for 


Authorization to Enforce California=s Emission Standards and Test Procedures for New 2003 and later Spark­


Ignition Inboard and Sterndrive Marine Engines, dated March 2, 2004 ("CARB IB/SD Request letter"), Docket 


Entry EPA-HQ-OAR-2004-0403-0018. The outboard marine engine and personal watercraft engine authorization 


requests were in earlier letters to EPA; see Docket Entries EPA-HQ-OAR-2004-0403-0002 and 0003. 


3 70 FR 2151 (January 12, 2005). This hearing also covered two earlier CARB authorization requests for its marine 


spark-ignition outboard and personal watercraft engines. 


1 
Manufacturers Association (NMMA),4 and a hearing was held on February 28, 2005.5 In 

addition, EPA received written comments from several commenters, including the U.S. Coast 

Guard, the Manufacturers ofEmissions Controls Association, NMMA, several engine 

manufacturers, Senator Herb Kohl (D-WI), Senator James Inhofe (R-OK), and a supplemental 

submission from CARB responding to matters raised at the public hearing.6 While CARB and 

MECA supported this authorization, all other commenters were concerned whether the catalysts 

needed for marine engines to comply with the CARB Tier II standards were safe and durable for 

saltwater operation. 

After our review ofthe information submitted by CARB in its requests, and the 

information presented to the Agency at the public hearing and in the comments received after the 

hearing, EPA granted authorization for the CARB emission regulations for marine spark-ignition 

outboard and personal watercraft engines in their entirety, and for the first Tier ofthe CARB 

regulations covering IB/SD engines. 7 For the Tier I standards (as well as for the outboard and 

personal watercraft engines), EPA determined that CARB had successfully shown that these 

standards were technologically feasible, which is necessary to meet the authorization criterion of 

consistency with section 202( a). Regarding the Tier II IB/SD emission standards, EPA deferred 

authorization of these standards until the conclusion ofthen-ongoing joint testing (by CARB, 

EPA, the U.S. Coast Guard and the marine industry), to evaluate the technological feasibility of 

both the CARB Tier II IB/SD standards and Federal IB/SD standards which, at that time, were 

4 See Letter from John McKnight, National Marine Manufacturers Association (NMMA), to Robert M. Doyle, 


USEPA, dated January 27, 2005, Docket Entry EPA-HQ-OAR-2004-0403-0030. 


5 Written statements presented at this hearing and the hearing transcript appear in the Docket as Docket Entries 


2004-0403-0031 through EPA-HQ-OAR-2004-0403-0036. 


6 These comments can be found in the Docket as Docket entries EPA-HQ-OAR-2004-0037 through EPA-HQ-OAR2004-0047. 


772 FR 14546 (March, 28, 2007). 


2 
expected to be proposed in 2007 (and were proposed in May 2007).8 

Shortly after the EPA IB/SD proposed standards were published, the NMMA wrote to 

EPA stating that "at this stage of catalyst development, there is little or no additional data to be 

obtained by completing the Goint test program) .... NMMA agrees that EPA and CARB can 

cancel the saltwater test program." Additionally, NMMA dropped its objection to the "waiver" 

ofthe CARB standards because "one manufacturer is already in production with catalysts, and 

the others will be ready to meet the CARB standard in 2008.,,9 EPA issued its final IB/SD 

standards in October 2008, after determining (among other things) that the use of catalysts on 

Marine IB/SD engines was technologically feasible with regard to safety and durability. 10 

After our review ofthe information submitted by CARB in its IB/SD request, the 

information presented to the Agency at the public hearing and in the comments received after the 

hearing, and in the information received by EPA after the initial authorization, EPA grants 

authorization for CARB to enforce the second tier ofthe regulations for IB/SD engines which set 

a level of5.0 glkW-hr HC plus NOx and are implemented by a phase- in beginning with 45% of 

manufacturers' sales in 2007, 75% in 2008, and 100% in 2009 and beyond. 

Section 209( e)(1) ofthe Act addresses the permanent preemption of any State, or political 

subdivision thereof, from adopting or attempting to enforce any standard or other requirement 

relating to the control of emissions for certain new nonroad engines or vehicles. I I Section 

8 The proposed standards were published at 72 FR 28097 (May 18, 2007). 


9 Letter from John McKnight, NMMA to Robert Doyle, EPA, dated May 11, 2007, Docket Entry EPA-HQ-OAR2004-0403-0042. 


10 The NPRM is found at 72 FR 14546 (March 28, 2007), and the final regulations at 73 FR 59034 (October 8, 


2008). 


11 Section 209(e)(1) ofthe Act provides: 


No State or any political subdivision thereof shall adopt or attempt to enforce any standard or 

other requirement relating to the control of emissions from either ofthe following new nonroad 

engines or nonroad vehicles subject to regulation under this Act3 
209(e)(2) requires the Administrator, after notice and opportunity for public hearing, to authorize 

California to enforce standards and other requirements relating to emissions control of new 

engines not listed under section 209(e)(1), if California meets certain criteria. 12 On July 20, 

1994, EPA promulgated a regulation that sets forth, among other things, the criteria, as found in 

section 209(e)(2), by which EPA must consider any California authorization requests for new 

nonroad engine or vehicle emission standards (section 209( e) rules ).13 This regulation, codified 

at 40 CFR Part 1074 provides: 

(a) The Administrator will grant the authorization ifCalifornia determines that its 

standards will be, in the aggregate, at least as protective of public health and 

welfare as otherwise applicable Federal standards. 

(b) The authorization will not be granted ifthe Administrator finds that any ofthe 

following are true: 

(1) California's determination is arbitrary and capricious; 

(2) California does not need such standards to meet compelling and 

extraordinary conditions; or (3) The California standards and 

accompanying enforcement procedures are not consistent with section 209 

ofthe ACt. 14 

As stated in the preamble to the section 209( e) rule, EPA has interpreted the requirement 

regarding whether "California standards and accompanying enforcement procedures are not 

consistent with section 209" to mean that California standards and accompanying enforcement 

procedures must in particular be consistent with section 209( a), section 209( e)(1), and section 

209(b)(1 )(C), as EPA has interpreted that subsection in the context of motor vehicle waivers. I 5 

(A) New engines which are used in construction equipment or vehicles or used in farm 

equipment or vehicles and which are smaller than 175 horsepower. 

(B) New locomotives or new engines used in locomotives. Subsection (b) shall not apply 

for purposes ofthis paragraph. 

12 As discussed above, states are permanently preempted from adopting or enforcing standards relating to the control 

of emissions from new engines listed in section 209(e)( I). 

13 See 59 FR 36969 (July 20, 1994). These regulations were subsequently moved to 40 CFR Part 1074 and modified 

slightly. See 73 FR 59379 (October 8, 2008). 

14See40CFR§ 1074.105(b), 

15 See 59 FR 36969,36983 (July 20, 1994). 

4 
In order to be consistent with section 209(a), California's nonroad standards and enforcement 

procedures must not apply to new motor vehicles or new motor vehicle engines. Secondly, 

California's nonroad standards and enforcement procedures must be consistent with section 

209(e)(l), which identifies the categories permanently preempted from state regulation. 16 

California's nonroad standards and enforcement procedures would be considered inconsistent 

with section 209 ifthey applied to the categories of engines or vehicles identified and preempted 

from State regulation in section 209( e)(1 ). 

Finally, because California's nonroad standards and enforcement procedures must be 

consistent with section 209(b)(l)(C), EPA will review nonroad authorization requests under the 

same "consistency" criteria that are applied to motor vehicle waiver requests. Cnder section 

209(b)(1 )(C), the Administrator shall not grant California a motor vehicle waiver if she finds that 

California's "standards and accompanying enforcement procedures are not consistent with 

section 202(a)" of the Act. Previous decisions granting waivers of Federal preemption for motor 

vehicles have stated that State standards are inconsistent with section 202(a) ifthere is 

]6 CAA section 209(e)(I); see 40 CFR § 1074.10, which provides in applicable part: 

(a) States and localities are preempted from adopting or enforcing standards or other requirements 

relating to the control ofemissions from new engines smaller than 175 horsepower that are 

primarily used in farm or construction equipment or vehicles, as defined in this part. For 

equipment that is used in applications in addition to farming or construction activities, ifthe 

equipment is primarily used as farm andlor construction equipment or vehicles (as defined in this 

part), it is considered farm or construction equipment or vehicles. 

(b) For nonroad engines or vehicles other than those described in paragraph ( a) ofthis section, 

States and localities are preempted from enforcing any standards or other requirements relating to 

the control of emissions from nonroad engines or vehicles except as provided in subpart B ofthis 

part. 

40 CFR § 1074.5 provides definitions ofterms used in § 1074.1 0 and states in applicable part: 

Construction equipment or vehicle means any internal combustion engine-powered machine 

primarily used in construction and located on commercial construction sites. 

Farm Equipment or Vehicle means any internal combustion engine-powered machine primarily 

used in the commercial production andlor commercial harvesting of food, fiber, wood, or 

commercial organic products or for the processing ofsuch products for further use on the farm. 

Primarily used means used 51 percent or more. 

5 
inadequate lead time to permit the development of the necessary technology giving appropriate 

consideration to the cost of compliance within that time period or if the Federal and State test 

procedures impose inconsistent certification requirements. 17 

With regard to enforcement procedures accompanying standards, EPA must grant the 

requested authorization unless it finds that these procedures may cause the California standards, 

in the aggregate, to be less protective of public health and welfare than the applicable Federal 

standards promulgated pursuant to section 213(a), or unless the Federal and California 

certification test procedures are inconsistent. 1s 

Once California has received an authorization for its standards and enforcement 

procedures for a certain group or class of nonroad equipment engines or vehicles, it may adopt 

other conditions precedent to the initial retail sale, titling or registration ofthese engines or 

vehicles without the necessity of receiving an additional authorization. 19 

If California acts to amend a previously authorized standard or accompanying 

enforcement procedure, the amendment may be considered within the scope of a previously 

granted authorization provided that it does not undermine California=s determination that its 

standards in the aggregate are as protective of public health and welfare as applicable Federal 

standards, does not affect the consistency with section 209 ofthe Act, and raises no new issues 

17 To be consistent, the California certification procedures need not be identical to the Federal certification 

procedures. California procedures would be inconsistent, however, if manufacturers would be unable to meet both 

the state and the Federal requirement with the same test vehicle in the course ofthe same test. See, e.g., 43 FR 32182 

(July 25, 1978). 

18 See, e.g., Motor and Equipment Manufacturers Association, Inc. v. EPA, 627 F.2d 1095, 1111-14 (D.C. Cir. 

1979), cert. denied, 446 U.S. 952 (1980) (MEMA I); 43 FR 25729 (June 14, 1978). While inconsistency with section 

202(a) includes technological feasibility, lead time, and cost, these aspects are typically relevant only with regard to 

standards. The aspect of consistency with 202(a) which is of primary applicability to enforcement procedures 

(especially test procedures) is test procedure consistency. 

19 See 43 FR 36679, 36680 (August 18, 1978). 

6 
affecting EPA's previous authorization detennination?O 

II. BACKGROUND 

In its Marine IB/SD request CARB requested authorization to enforce California's 

marine SI regulations affecting inboard and sterndrive engines for model years 2003 and 

beyond.21 EPA authorized the first tier ofregulations, for model year 2003 through 2008, which 

set a cap reflecting average emission levels of 16.0 grams per kilowatt hour (g/kW-hr) HC plus 

NOx which manufacturers can meet directly by engine family or by corporate average. The 

second tier ofstandards - the subject oftoday's authorization sets a level of 5.0 glkW-hr HC 

plus NOx and phases in beginning with 45% ofmanufacturers' sales in 2007,75% in 2008 and 

100% in 2009 and beyond. For 2007 and 2008, all engines subject to the standard must comply 

directly with the standard, with no option for sales weighted-averaging. Besides these new 

standards, other regulations establish requirements for certification, emission test procedures, 

emissions warranty, and emission certification labels and consumer/environmental awareness 

hang tag labels. In addition, the IB/SD regulations require on-board diagnostics for these 

engines. 

III. DISCUSSION 

A. Protectiveness 

Under section 209(e)(2)(i) ofthe Act, EPA cannot authorize CARB to enforce its Marine 

Spark-Ignition Engine regulations ifit finds that CARB was arbitrary and capricious in its 

20 See, e.g., 51 FR 12391 (April 10, 1986) and 65 FR 69673,69674 (November 20,2000). The first within-the-scope 

detennination stated that a CARB request made subsequent to an EPA waiver, "exists within the meaning and intent 

ofthe waiver granted." 37 FR 14831 (July 25, 1972). 

21 Inboard engines include a propeller shaft that penetrates the hull ofthe marine vessel, while the engine and the 

remainder ofthe drive unit are internal to the hull ofthe marine watercraft. In stern drive engines, the drive unit is 

external to the hull ofthe marine watercraft, while the engine is internal to the hull ofthe marine watercraft. CARB 

Staff Report, June 8, 2002, at page 4, Docket entry EPA-HQ-OAR-2004-0403-0023. 

7 
determination that its state standards are, in the aggregate, at least as protective of public health 

and welfare as applicable Federal standards. In the IB/SD Request letter, CARB referenced the 

determination from the July 2001 CARB meeting that its IB/SD marine engine standards will not 

cause the California emissions, in the aggregate, to be less protective of public health and 

welfare than applicable Federal standards. At that time, in fact, there were no final or proposed 

Federal emission standards for IB/SD marine engines. At the time ofthe CARB IB/SD request 

letter (March 2004), however, EPA had proposed Federal evaporative standards for SI marine 

engines, including IB/SD engines.22 CARB noted that these proposed standards, iffinalized, 

would not apply until the model year 2008, and the CARB IB/SD Tier One marine emission 

standards take effect in model year 2003. In model year 2008, CARB stated that even if there 

was a direct comparison of emission reductions from California's InboardlSterndrive 

Regulations to reductions from California sales ofinboardlsterndrive meeting the federal 

evaporative standards in 2008 and later, California's requirements would achieve substantially 

greater emission reductions in every model year at issue. EPA has since issued final Federal 

evaporative standards for SI marine engines, including IB/SD engines.23 

Additionally, since CARB requested this authorization, EPA has proposed and issued 

Federal exhaust emission standards for IB/SD marine engines. The Federal standards are 

basically equivalent to the California IB/SD marine emission standards which were in place 

when the Federal standards were proposed, except that the Federal standards were scheduled to 

22 In August 2002, EPA proposed permeation and diurnal evaporative standards for fuel systems related to Marine 


SI engines (67 FR 53050, (August 14,2002». EPA finalized other portions of that proposal but chose to delay 


promulgation ofMarine SI evaporative standards, in order to obtain more information and perform tests on new 


technologies related to Marine SI evaporative standards. EPA issued these Marine SI evaporative standards in 2008. 


73 FR 59194 (October 8,2008). 


23 40 CFR § 1045.112, promulgated at 73 FR 59195 (October 8, 2008). 


8 
begin several years after the initial California regulations. 

Finally, as CARB noted in its comments, no party submitted any information calling into 

question CARB' s protectiveness determination?4 At the authorization hearing, there was no 

testimony from any industry party specifically addressing California's protectiveness 

determination for any ofthe three sets of standards. In post-hearing comments, neither the 

NMMA nor any other industry company commenter took opposition to CARB=:s protectiveness 

determination for these particular standards. 25 

Based on the record associated with this request, EPA cannot find that California was 

arbitrary and capricious in finding that its Marine SI Engine emission regulations for Tier II of 

the SD/IB standards, in the aggregate, are at least as protective of public health and welfare as 

applicable Federal standards. 

B. Compelling and Extraordinary Conditions 

Under section 209(e)(2)(ii) ofthe Act and 40 CFR section 85.1605(b)(2), EPA cannot 

grant California an authorization if it finds that "California does not need such State standards to 

meet compelling and extraordinary conditions ... " As noted in the preamble to the section 209(e) 

regulations, EPA intends to similarly interpret those parts of sections 209(b) and 209( e) that are 

alike?6 Therefore, like we have done historically for motor vehicle waiver requests, with respect 

to this part of section 209( e), EPA will restrict its inquiry into whether California needs its own 

nonroad equipment engine control program to meet compelling and extraordinary conditions. In 

24 Letter from Catherine Witherspoon, Executive Officer, CARB to Administrator, EPA with post-hearing 


comments, dated March 28, 2005, page 18, note 3, Docket entry EPA-HQ-OAR-2004-0403-0045. 


25 Letter from John McKnight, NMMA to Robert Doyle, EPA, dated March 28, 2005, with attached NMMA 


comments, page 2, Docket entry EP A-HQ-OAR-2004-0403-0044. 


26 See, e.g., 49 FR 18887, 18889-90 (May 31, 1984). 

9 
its lB/SD request letter, CARB noted that California and the South Coast Air Basin, in particular, 

has experienced historically, and continues to experience, some ofthe worst air quality in the 

nation. In the late 1980's, the California Legislature authorized CARB to consider adopting, 

among other steps, emission standards and regulations for nomoad engines as part ofthe overall 

state program. CARB responded by adopting emission standards for several types of nomoad 

engines, and continued to find previously uncontrolled nomoad engines, such as Marine SI 

engines, to be significant emission sources and added regulations covering these engines to its 

nomoad program. EPA has agreed with CARB, in these earlier nomoad engine standards 

requests, that California's continuing extraordinary conditions justify California separate 

California programs. 

There was no information submitted by any party at the authorization hearing, or in any 

ofthe post-hearing comments, disputing CARB's view that it had met the compelling and 

extraordinary need criterion ofthe authorization test. Therefore, based on the record ofthis 

request, EPA cannot find that California does not need such state standards to meet the 

compelling and extraordinary conditions in the state. 

C. Consistency with Section 209 

As discussed above, the section 209( e) rule states that the Administrator shall not grant 

authorization to California if she finds (among other tests) that the "California standards and 

accompanying enforcement procedures are not consistent with section 209." EPA has 

interpreted the requirement to mean that California standards and accompanying enforcement 

procedures must be consistent with section 209(a), section 209(e)(1), and section 209(b)(l)(C), 

as EPA has interpreted that subsection in the context of motor vehicle waivers. No commenter 

10 

has suggested any other portion of section 209 is relevant for this detennination. Thus, this can 

be viewed as a three-pronged test. 

1) Consistency with Section 209(a) 

Under section 209(a) ofthe Act, EPA cannot authorize CARB to enforce any nonroad 

standards ifEP A finds that CARB is actually regulating new motor vehicles or new motor 

vehicle engines. This is because section 209(a) prohibits states or any political subdivisions of 

states from setting emission standards for new motor vehicle or new motor vehicle engines 

(modified in turn by section 209(b) which allows California to set such standards if other 

statutory requirements are met). 

In its IB/SD request, CARB has stated that the these Marine SI regulations do not apply 

to new motor vehicles or motor vehicle engines as defined in section 216(2) of the Act. Based 

on EPA's review ofthe Marine 1B/SD Tier II emission standards, EPA agrees that these 

regulations apply only to nonroad engines and vehicles, and do not apply to motor vehicles or 

motor vehicle engines. Therefore, EPA finds that the Marine IB/SD engine regulations are 

consistent with section 209(a) ofthe Act. 

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

Under section 209(e)(1) of the Act, EPA cannot authorize CARB to enforce any nonroad 

standards if EPA finds that CARB is actually regulating any nonroad engines or vehicles which 

are included in the nonroad categories specifically exempt from all state regulation because of 

the express prohibition of the Act. These specifically prohibited categories are: 1) new engines 

used in construction equipment or vehicles or in fann equipment or vehicles and which are 

smaller than 175 horsepower and 2) new locomotives or new engines used in locomotives. 

11 
In its IB/SD request, CARB has stated that these Marine SI regulations cover engines 

which are not primarily used in farm and construction equipment of any kind, much less farm 

and equipment smaller than 175 horsepower, and not used in new locomotives. Based on EPA's 

review of the IB/SD Marine engine emission standards, EPA agrees that these regulations do not 

apply to the specifically preempted categories of section 209( e). Therefore, EPA finds that the 

Marine SI Tier II engine regulations are consistent with section 209(e)(1) ofthe Act. 

3) Consistency with Section 209(b) 

Under section 209(b)(1)(C) ofthe Act, EPA cannot authorize CARB to enforce any 

nonroad standards if EPA finds that the standards are not consistent with section 202(a) ofthe 

Act. To determine this consistency, EPA has applied to California nonroad standards the same 

test it has used previously for California motor vehicle standards; namely, state standards are 

inconsistent with section 202(a) if there is inadequate lead time to permit the development of the 

necessary technology giving appropriate consideration to the cost of compliance within that time 

period or if the Federal and State test procedures impose inconsistent certification 

requirements?7 

Regarding the lead time and cost requirement of this test, EPA's review will be guided by 

the principles found in two key Federal court decisions which applied the requirements of section 

202(a)(2) to proposed Federal standards: International Harvester v. Ruckelshaus, 478 F.2d 615 

(D.C. Cir. 1973) ("International Harvester"), and National Resources Defense Council v. US 

EPA, 655 F. 2d 318 (D.C. Cir. 1981) ("NRDC "). Both these cases basically support the idea that 

27 To be consistent, the California certification procedures need not be identical to the Federal certification 

procedures. California procedures would be inconsistent, however, ifmanufacturers would be unable to meet both 

the state and the Federal requirement with the same test vehicle in the course of the same test. See, e.g., 43 FR 32182 

(July 25, 1978). 

12 
the technology needed to comply with a proposed regulation doesn't need to be existing when 

the standards are set, but just needs to be reasonably likely to be completed before the standards 

become effective. 

As CARB notes in its request letters, the Court in NRDC gave EPA the following 

roadmap to follow to show that a regulations meets the lead time requirements of section 

202(a)(2): 

We think that the US EPA will have demonstrated the reasonableness ofits basis 

for prediction ifit answers any theoretical objections to the (projected control 

technology), identifies the major steps necessary in refinement ofthe technology, 

and offers plausible reasons for the believing that each ofthose steps can be 

completed in the time available.28 

a) Technological Feasibility 

Testimony from NMMA and marine engine manufacturers at the EPA hearing and the 

comments received after the hearing, focused on three main issues relative to the technological 

feasibility ofthe IB/SD Tier II standards: 1) saltwater testing for catalyst feasibility, 2) engine 

distribution to meet the 2007 Phase-in, and 3) on-board diagnostics feasibility. These issues will 

be discussed in turn. 

i) Saltwater Testing for Catalyst Feasibility 

For the Tier II standards, first effective in model year 2008, CARB received comment in 

its 2001 rulemaking from NMMA asking that manufacturers be given relief from the standards 

which would require catalysts because of concern over catalyst durability. CARB staff, in the 

Final Statement of Reasons, responded by stating that it: 

... recognizes that some development and adaption work will have to be done to 

successfully transfer this technology (three-way catalysts and closed-loop 

electronic air-fuel control) from automobiles to boats. The ARB and US EPA 

28 655 F.2d at 331-2. 

13 
have cooperated with NMMA in demonstrating and evaluating catalyst/feedback 

control on boat engines in the laboratory. To address concerns about possible 

catalyst damage in the marine environment, boat testing was also conducted (on 

water) to analyze the causes of water ingestion. Staff is planning and organizing a 

cooperative in-boat demonstration and durability study to evaluate the 

manufacturers' concerns about catalyst durability and safety. The results should 

be available by the first Technology Review for inboard and stemdrive engines, 

scheduled for 2003.29 

The Board supported the idea offurther testing, and directed the staff to undertake the 

joint developmental in-water testing program, directing that the program include vessel operation 

in both fresh and salt water.30 This testing program was performed by the Southwest Research 

Institute (SwRI) from August 2002 to September 2004, and included four boats (two inboards 

and two stemdrive), the engine in each boat equipped with a catalyst. Each boat accumulated 

480 hours of operation over a period ofmonths (480 hours was used because this is the useful 

life for compliance testing in the CARB IB/SD regulations). In October 2004, the CARB staff 

presented the Board a Staff Report on the status of the test program. The Staff Report stated that 

the test demonstration showed that there were no heat-related safety issues that arose during the 

480 hours testing for each boat. Further, regarding durability, three ofthe four engines after the 

480 hours of operation measured below the CARB Tier II standard of 5.0 g/kW-hr HC + NOx 

standard. The fourth engine exceeded the standard by 15%, but the Report explained the 

exceedance as a result of excessive fuel being delivered to one engine bank, and one cylinder in 

that bank having low compression. The excessive fuel, and the low compression and 

accompanying incomplete combustion will result in increased HC emissions, and increased 

oxygen levels in the exhaust, significantly reducing the catalyst's NOx reduction efficiency.3! 

29 CARB Final Statement of Reasons, page 6, Docket entry EPA-HQ-OAR-2004-0403-0012. 

30 CARB Resolution 01-03, Docket entry EPA-HQ-OAR-2004-0403-0020. 

31 CARB Staff Report - Status Report on Catalyst Testing ofSpark-Ignition IE/SO Pleasure craft, Docket Entry 

14 
CARB staff concluded that "because ofthe successful outcome of the test program, (we 

believe) that the overall feasibility ofthe regulatory requirements have been reinforced." These 

results, however, were from engines that only were tested in a freshwater lake (Canyon Lake, 

Texas); the Staff Report stated that "because of budget constraints, vessel operation was limited 

to fresh water operation.,,32 CARB addressed the issue of saltwater testing both at the February 

2005 EPA Authorization hearing, and in its hearing follow-up comments submitted to the Docket 

in March 2005. At the hearing, CARB told the EPA panel that "staff informed the Board (at the 

October 2004 hearing on the test status report) that a future saltwater testing program need not 

necessarily be a repeat of the fresh water program, but instead, should focus on exposing 

catalysts to salt water which could be conducted in a laboratory setting. To summarize the 

saltwater issue, the technical feasibility ofthe catalysts was first demonstrated in 2001. The 

Board's decision to direct the on-water test program was to demonstrate that catalysts were safe 

and durable in the marine environment, not to determine technical feasibility).,,33 In comments 

submitted to EPA after the hearing, CARB referenced testing performed for EPA by SwRI in 

2002 which included saltwater testing. CARB stated that "by removing the catalyst-equipped 

engine from the boat and testing it on a dynamometer at the conclusion of the US EPA sponsored 

test program, SwRI confirmed that catalyst operation had not been compromised as a result of 

EPA-HQ-OAR-2004-0403-0040. 

32 CARE Staff Report Status Report on Catalyst Testing of Spark-Ignition IB!SD Pleasurecraft, page 3, Docket 

Entry EPA-HQ-OAR-2004-0403-0040. In comments to the Docket after the hearing, CARB also noted that "in 

consideration ofthe resources that were available, ARB and SwRl decided to maximize the testing effort on 

freshwater to ensure a sufficiently wide range of data accumulation, rather than to incorporate saltwater testing at the 

expense offewer, and possibly inconclusive teat results." Letter from Catherine Witherspoon, Executive Director, 

CARE to Administrator, EPA, March 28, 2005 at pages 3-4, Docket entry EPA-HQ-OAR-2004-0403-0039. 

33 Hearing Transcript, Testimony of Mike Carter, CARB, page 23, Docket entry EPA-HQ-OAR-2004-0403-0036. 

15 
saltwater operation.,,34 The SwRi testing included only short periods of operation ofthe boat, 

not actual operation of the boat for a representative useful life period (480 hours). 

The saltwater testing issue was of great importance to the marine industry parties who 

presented information at the EPA hearing. NMMA stated it was concerned about "the problem 

ofmoving forward with this rule, when the critical question ofthe technical feasibility of catalyst 

in salt water has not been answered. Our concern arises from the obvious fact that a significant 

number of these stern drive inboard boats operate in salt water ... The US Coast Guard and 

NMMA are now ready, willing and able to work with CARB staff and EPA to conduct salt water 

testing this summer in order to determine the technological feasibility of catalyst equipped boats 

in salt water operation. Only if salt water testing is conducted in the summer of2005 will our 

members have the necessary salt water safety and durability information to begin producing 

product for model year 2008.,,35 NMMA also submitted for the record an October 2004 letter 

from the U.S. Coast Guard to CARB at the completion ofthe CARBISwRI testing stating that "it 

is now time to focus on the salt water and 'wintering' phase which may, in our view, be even 

more challenging than the fresh water phase. The Coast Guard remains concerned about the 

durability of catalyst systems and the effect ofthis durability on the safety in the marine 

environment.,,36 

A representative from Indmar Products, a marine manufacturer, also offered testimony to 

emphasize the need for in-water salt water testing. He explained that "water reversion"- a 

34 Letter from Catherine Witherspoon, Executive Director, CARE to Administrator, EPA, March 28,2005, page 3, 


Docket entry EPA-HQ-OAR-2004-0403-0039. 


35 Statement of John McKnight, NMMA, at EPA Marine Rule Authorization Hearing, page 2, Docket entry EPA­


HQ-OAR-2004-0403-0032. 


36 Statement of John McKnight, NMMA, at EPA Marine Rule Authorization Hearing, attached letter from Captain 


S.H. Evans, Chief, Office of Boating Safety, US Coast Guard to Chairman, CARB, dated October 20, 2004, Docket 

entry EPA-HQ-OAR-2004-0404-0032. 

16 
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phenomenon where water in the marine engine exhaust system flows back up the tailpipe all the 

way to the exhaust manifold - is believed by the marine manufacturers to harm a catalyst added 

to the marine exhaust system. He stated that "the fresh water test (the SWRI - CARB testing) 

did not prove that water reversion was not present, but only that any fresh water that was 

exposed to the catalyst did not cause any significant deterioration. Tests (discussed in a 1995 

technical paper) showed that catalytic converters that come in contact with salt water will 

degrade the efficiency due to salt adhering to the catalyst surface .... It is absolutely necessary 

that salt water testing be conducted to prove technical feasibility and boater safety under these 

conditions. My personal experience at General Motors working with all the marine 

manufacturers leads me to believe that we will have water reversion causing some problems with 

the catalyst. How severe the problems will be I can only guess until the tests are run.,,37 

NMMA and Indmar Products also submitted written comments to EPA to supplement 

and amplify its hearing testimony on the saltwater testing issue. NMMA explained that the water 

present in marine engine exhaust systems is generated by three sources: condensation, water 

reversion and water ingestion. Although condensation can be addressed by heated manifolds, 

water inversion (explained above) and water ingestion are problematic. (Water ingestion occurs 

when water is forced up into the exhaust system when a boat is exposed to extended periods of 

waves and sloshing.) NMMA noted that, in the SwRl fresh water testing, some ofthe catalysts 

showed signs of physical deterioration on the outlet face, which can be caused by water 

inversion. Also, the tests showed loss in catalytic converter efficiency over the 480 hour period, 

greater than what is experienced in the automotive context, which can be caused by water 

37 Testimony ofRichard Waggoner, Indmar Products, Inc., at EPA Marine Rule Authorization Hearing, pages 1-2, 

Docket entry EPA-HQ-OAR-2004-0404-0033. 

17 
damage from reversion. Regarding water ingestion, NMMA observed that water ingestion can 

lead to salt accumulation on the catalyst can lead to plugging ofthe exhaust system which, 

besides the adverse effect on the emission reduction ability of the catalyst, could cause exhaust 

leakage into the boat compartment, and could cause the engine to stop running, both ofthese 

being "real and legitimate safety issues for boaters and more than justify the need for real world 

safety tests.,,38 Indmar Products noted that "when the idea to put catalytic converters on marine 

SD/I engines was proposed Indmar and all other NMMA members believed that the water 

reversion could harm the catalyst." Like NMMA, Indmar also pointed to possible safety concern 

of water inversion causing salt deposits which could plug the catalysts?9 

Beside the comments on saltwater testing offered by NMMA and Indmar Products, EPA 

also received additional comments urging EPA to defer any decision on the authorization request 

for the IB/SD requirements until the completion and evaluation of the saltwater testing. These 

letters were received from several NMMA member company marine manufacturers, from the 

Unites States Coast Guard, and from U.S. Senators James M. Inhofe and Herb KohL4o 

As noted earlier, when EPA authorized the CARB Tier One IB/SD standards, it deferred 

authorization of the Tier II standards until the conclusion ofthen-ongoingjoint testing (by 

CARB, EPA, the U.S. Coast Guard and the industry), to evaluate the technological feasibility of 

38 Letter from John McKnight, NMMA to Robert Doyle, EPA dated March 28, 2005, with attached NMMA 


comments, pages 14-15, Docket entry EPA-HQ-OAR-2004-0403-0044. 


39 Letter from Richard 1. Wagoner, Indmar Products to Robert Doyle, EPA, dated March 28, 2005, with attached 


comments, Docket entry EPA-HQ-OAR-2004-0403-0046. 


40 These comments are the following Docket entries: 

2004-0403-0038 U. S. Coast Guard 

2004-0403-0039 Senator James M. lnhofe 

2004-0404-0040 Marine Power 

2004-0404-0041 Pleasure Engine Group 

2004-0404-0042 Volvo Penta 

2004-0404-0043 Mercury Marine 

2004-0404-0047 Senator Herb Kohl 

18 
both the CARB Tier II IB/SD standards and Federal IB/SD standards which, at that time, were 

expected to be proposed in 2007 (and were proposed in May 2007). Southwest Research 

Institute ("SwRI") with the participation of the above parties conducted this saltwater 

demonstration testing on three engines with catalysts operating in saltwater for extended period. 

As summarized by EPA (when the EPA IB/SD final standards were published), early in the 

program, two ofthe three exhaust manifolds (where the catalyst was installed) experienced 

corrosion in the saltwater environment resulting in water leaks and damage to the catalyst. After 

rebuilding ofthe manifolds (with guidance from industry experts), additional testing hours were 

accumulated on the boats; although the hours did not reach the representative useful life of 480 

hours, the operation completed showed no visible evidence ofwater inversion or damage to the 

catalysts.41 After this showing, the NMMA, noted that "though the SwRI tests never proved 

catalyst feasibility in salt water, our members believe that, at this stage of catalyst development, 

there is little or no additional data to be obtained by completing the tests (i.e., reaching the 480 

hour mark), and agreed that EPA and CARB could stop the test program." Additionally, because 

its members had developed their own compliance plans that include designs that appear to 

withstand saltwater operation, NMMA dropped its prior objections to the CARB waiver request 

based on the industry concerns on catalyst durability.42 CARB, which consistently argued that 

its standards were technologically feasible for saltwater operation, noted its position "was 

confirmed by industry'S recent request to voluntarily terminate the saltwater demonstration 

41 From preamble discussion in EPA publication of Final Rules for Marine IB/SD Engine Emission Standards, 73 


FR 59034, 59061-2 (October 8, 2008). 


42 Letter from John McKnight, National Marine Manufacturers Association (NMMA), to Robert M. Doyle, USEP A, 


dated May 11,2007, Docket Entry EPA-HQ-OAR-2004-0403-0044. The NMMA statement on member compliance 


was borne out by the fact that by October 2008, when EPA published its Final Rule for Marine IB/SD Emission 


Standards, three marine manufacturers had certified IB/SD engines with CARB. 73 FR 59034,59061 (October 8, 


2008). 


19 
program ... and the current availability of catalyst-equipped saltwater engines in the 

marketplace.,,43 Therefore, based on the record of this proceeding regarding catalyst 

performance in saltwater operation, EPA cannot deny California's authorization based on 

technological feasibility. 

ii) Engine Distribution To Meet the 2007 Phase-In 

At the hearing and in almost all the comments received from NMMA member 

companies, the industry parties basically asserted that the California phase-in ofthe Tier II 

standards over the 2007 through 2009 time frame was not realistic. The industry explained that 

after the engine manufacturers sell engines to independent buyer groups or to 

custom/independent boat builders, they have no further control over where its engines will end 

up. Therefore, according to the industry, to meet the CARB standards, manufacturers will be 

compelled to manufacture their entire lines in 2007 as catalyzed engines, rather than the 45% 

CARB phase-in requirement.44 To frame this assertion in terms oftechnological feasibility, the 

manufacturers claimed in 2005 that the standards which they do not believe can be determined 

technologically feasible at that time because of the incomplete saltwater testing - the Tier II 

standards in effect have no phase-in because the manufacturers must produce 100% Tier II 

beginning with MY 2007 due to distribution factors. 

CARB noted that other regulated industries will routinely track the California sales and 

distribution oftheir engines, such as the small off-road SI engines and the large off-road SI 

engines. In these industries, like the marine industries, the engine manufacturers do not 

43 Letter from James N. Goldstene, Executive Officer, CARB to Administrator, EPA, February 7, 2008, March 28, 


2005 at page 2, Docket entry EPA-HQ-OAR-2004-0403-0040. 


44 The Tier II regulations for IB/SD engines set a level of5.0 glkW-hr HC plus NOx and are implemented by a 


phase- in beginning with 45% ofmanufacturers' sales in 2007, 75% in 2008, and 100% in 2009 and beyond. 


20 
manufacture the completed product or equipment that contains the engine, but have taken 

necessary steps to ensure that their engines meeting California standards are sold in California, 

and CARB averred that the marine industry can do the same. CARB also noted that the industry 

did not raise this "de facto national standard" during the 2001 California rulemaking, but in fact 

supported the phase-in beginning in 2007. Nevertheless, CARB continued to work with 

manufacturers to address these concerns, and in fact amended its regulations to offer more 

flexibility to manufacturers. The amended regulations offered manufacturers the option to avoid 

the 45% sales compliance for 2007 ifthey agreed to 100% compliance in 2008 (an increase from 

the prior 75% requirement), in effect granting manufacturers an additional year of relief. These 

amendments were supported by Industry.45 

EP A believes that, with respect to the CARB phase-in ofthe Tier II standards, the 

industry information provided has not shown that CARB failed to meet the technological 

feasibility test here. CARB has responded successfully to the industry assertions by showing 

that it is reasonable to believe that the marine manufacturers can take necessary steps to provide 

California-compliant engines to the California market in the time frames directed by the 

California regulations. Therefore, based on the record of this proceeding regarding the CARB 

phase-in ofthe Tier II standards, EPA cannot deny California's authorization based on 

technological feasibility. 

iii) On-Board Diagnostics Feasibility 

At the hearing, industry parties expressed concern about compliance with the 

CARB OBD-marine (OBD-M) requirements. The NMMA representative noted that the post45 Letter from James N. Goldstene, Executive Officer, CARB to Administrator, EPA, February 7, 2008, March 28, 

2005 at page 2, Docket entry EPA-HQ-OAR-2004-0403-0040. 

21 
catalyst oxygen sensor that CARB will require "simply will not survive in a marine environment 

... members' (experience) to date, and we've done testing on this ... shows that the life 

expectancy of a post-catalyst oxygen sensor is measured in terms of a few hours, not years." 

For this reason, according to NMMA, "it is critical that the OBD requirements in this Rule be 

harmonized with what the EPA Office of Transportation and Air Quality has told us they are 

considering for the EPA stemdrive/inboards rule.,,46 Other manufacturers supported this 

position. 

CARB, in its submission responding to the issues discussed at the hearing,47 noted that 

the manufacturers had numerous issues associated with the OBD requirements initially proposed 

for this Rule, so CARB revised the requirements substantially during the rulemaking to reduce 

compliance burdens on the engine manufacturers. The result was that the manufacturers 

basically now have only a single issue remaining the catalyst monitor durability. CARB has 

taken steps to address this issue also. 

First, CARB notes that it redesigned the catalyst monitoring requirements to 

accommodate "uncomplicated temperature-based algorithms" (although manufacturers would 

retain the option to use oxygen sensors if preferred). CARB has identified some technical 

research on this method of catalyst monitoring for autos, and believes that the technology could 

be suitable for marine engines because of the less-stringent (compared to autos) catalyst 

monitoring requirements for the marine engines.48 

46 Testimony of John McKnight, NMMA, at EPA Marine Rule Authorization Hearing, page 51, Docket entry EPA­


HQ-OAR-2004-0404-0033. 


47 Letter from Catherine Witherspoon, Executive Officer, CARE to Administrator, EPA, March 28,2005, Docket 


entry EPA-HQ-OAR-2004-0403-0040. 


48 Letter from Catherine Witherspoon, Executive Officer, CARB to Administrator, EPA, March 28, 2005, at page 5, 


Docket entry EPA-HQ-OAR-2004-0403-0040. 


22 
Second, CARB cites the results from the 2005 testing conducted by SwRI (for CARB and 

EPA) showing upstream oxygen sensors and catalysts to be durable for at least 480 hours in 

marine applications. CARB believes that "it is therefore reasonable that an oxygen sensor placed 

between the bricks of a catalyst (mid-bed) would be protected for from water reversion, and 

could be used to satisfy the catalyst monitoring requirements of the CARB OBD-M 

regulation.,,49 

Finally, CARB believes that some industry members may be mistaken about the scope of 

the OBD requirements and believe that the monitors must detect all failures of the catalyst under 

all operating conditions. CARB stresses that the requirements actually provide the manufacturer 

with a generous amount offlexibility to define a window-of-operation during which the monitor 

only has to be able to determine ifthe catalyst is operating at a temperature (or oxygen sensor 

ratio) that correlates to a reasonable increase in emissions. CARB refers to this as a "functional 

check" meant to verify that the catalyst is operational, and not necessarily to verify its 

performance. 50 

Additionally, since the EPA proceeding, CARB continued to work with manufacturers to 

address these concerns, and in fact amended its regulations to offer more flexibility to 

manufacturers. Like it did for the phase-in compliance requirements, CARB delayed the OBDM requirements for manufacturers who chose the optional phase-in compliance, thus giving 

manufacturers an additional year of lead time. 51 

49 Letter from Catherine Witherspoon, Executive Officer, CARB to Administrator, EPA, March 28,2005, at page 6, 


Docket entry EPA-HQ-OAR-2004-0403-0040. 


50 Letter from Catherine Witherspoon, Executive Officer, CARB to Administrator, EPA, March 28, 2005, Docket 


entry EPA-HQ-OAR-2004-0403-0040. 


5J Letter from Catherine Witherspoon, Executive Officer, CARB, to Administrator, EPA, March 28, 2005, at page 6, 


Docket entry EPA-HQ-OAR-2004-0403-0040. 


23 
EPA believes that, with respect to the OBD-M requirements, the industry information 

provided has not shown that CARB failed to meet the technological feasibility test here. This is 

because CARB has demonstrated that either the necessary technology presently exists to meet 

the established standards or has specifically identified the projected control technology, 

answered objections raised by the industry regarding that technology, and has explained its 

reasons for believing that each of the steps can be competed in the time available. 

With respect to the technological feasibility ofthe CARB Tier II IB/SD standards, based 

on the record before me, I cannot find that California's standards are inconsistent with section 

202(a) ofthe Act, as discussed above. Therefore, I cannot deny California's authorization 

request for the Tier II IB/SD regulations based on technological feasibility. 

b) Consistency of Test Procedures 

As stated earlier, California's standards and accompanying enforcement procedures 

would be inconsistent with section 202(a) ifthe California test procedures were to impose 

certification requirements inconsistent with the Federal test requirements. Such inconsistency 

means that manufacturers would be unable to meet both the California and Federal testing 

requirements using the same engine or vehicle. 52 Regarding the test for consistency ofthe 

certification test procedures between EPA and CARB for Marine IB/SD engines, CARB stated 

during this proceeding that the consistency requirements are satisfied because at that time, there 

were no Federal IB/SD certification test requirements against which California=s requirements 

could be inconsistent. 53 EPA has since issued Marine SI IB/SD emission standards including 

certification test procedures. These EPA test procedures for IB/SD engines are generally the 

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


53 CARB IB/SD Request letter, page 22, Docket entry EPA-HQ-OAR-2004-0403-0018. 


24 
same as the EPA test procedures for OB and PWC engines. 54 

At the EPA hearing, and in the post-hearing comments, the industry participants did not 

object on consistency grounds to the California test procedures for IB/SD engines. 

Therefore, based on the record before me, I cannot find that California's certification 

testing procedures are inconsistent with section 202(a), and thus cannot deny CARB's 

authorization request based on this criterion. 

54 73 FR 59034,59055 (October 8, 2008). 

25 
IV. DETERMINATION 

The Administrator has delegated to the Assistant Administrator for Air and Radiation the 

authority to grant California an authorization, under section 209( e) ofthe Act. Based upon the 

above discussion and findings, I cannot make the determinations required for a denial of this 

authorization under section 209( e) ofthe Act, and therefore, I authorize California to adopt and 

enforce its regulations for its second tier of standards for marine IB/SD engines, in the 

"California Regulations for New 2001 and Later Spark Ignition Marine Engines," Title 13, 

California Code ofRegulations (CCR) section 2440 et seq., and the test procedures incorporated 

by referenced therein (Marine SI Test Procedures). 

in McCarthy 

stant Administrator 

Office ofAir and Radiation 

26