Matthew Rodriquez Secretary for Environmental Protection

The energy challenge facing California is real . Every Californian needs to take imm ediate action to reduce energy consumption. For a list of simple ways you can reduce demand and cut your energy costs, see our website: http://www.arb.ca.gov

. California Environmental Protection Agency

Printed on Recycled Paper 

# Air Resources Board

Mary D. Nichols, Chairman

1001 I Street • P.O. Box 2815 Sacramento, California 95812 • www.arb.ca.gov Edmund G. Brown Jr. Governor

November 14, 2012

Janet Cohen, Hearing Officer Docket ID No. EPA–HQ–OAR–2012–0562 USEPA Headquarters Ariel Rios Building 1200 Pennsylvania Avenue, N. W. Mail Code: 6405J Washington, DC 20460 Cohen.Janet@epamail.epa.gov

RE: California State Motor Vehicle Pollu tion Control Standards; Advanced Clean Car Program; Request for Waiver of Preemption; Opportunity for Public Hearing andPublic Comment; 77 Fed.Reg. 53199 (August 31, 2012); DOCKET ID NO. EPAHQ-OAR-2012-0562

Dear Ms. Cohen:

California’s Air Resources Board (CARB) subm its this letter and additional attachments to address comments raised by the National Automobile Dealers Association (NADA) (Document ID No. EPA-HQ-OAR-2012-0562- 0367) and the joint comments of the Association of Global Automakers and the Alliance of Automobile Manufacturers (Global/Alliance) (Document ID No. EPA-HQ -OAR-2012-0562-0347), in order to provide the U.S. Environmental Protection Agency ( EPA) with a more complete record for its waiver decision.

Protectiveness

To begin, while ARB doubts that comments ra ised even cumulatively come close to clearing NADA’s suggested “preponderance of evidence” burden, EPA should reject NADA’s invitation for EPA to jettison its adm inistrative precedent applying a “clear and compelling” evidence standard to review of Ca lifornia’s protectiveness determinations. As EPA has stated, “Although MEMA I did not ex plicitly consider the standard of proof under Section 209 in connection with a waiver request for ‘standards,’ there is nothing to suggest that the court’s analysis w ould not apply with equal force to such determinations.” 61 Fed.Reg. 53371 (October 11, 1996) (OBD II), Decision Document at p. 14. Accord , 49 Fed.Reg. at 18888 and 58 Fed.Reg. 4166 (January 7, 1993) (LEV I) Decision Document at pp. 19-20. See al so H.R. Rep. No. 95-294 at 301-302 (1977),Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 2

reprinted at 1977 U.S.C.C. A.N. 1077 (“There must be clear and compelling evidence that the state acted unreasonably in evaluating the risk of vari ous pollutants in light of the air quality, topography, phot ochemistry, and climate in [California], before EPA may deny a waiver.”) EPA has thus applied the mo re restrictive standard of review for good reason, and should continue to do so. We al so note that the “shifting” nature of the burden of proof for which NADA ci tes (p. 4) to the MEMA I ca se, just as easily allows EPA to continue applying the more restrictive standard.

In its prior submissions to the Docket ARB anticipated a nd addressed most of NADA’s more substantive comments (pp. 5-7, 12) regarding the Board’s determination that California’s passenger vehicle program is at least as protective as the federal program for these vehicles; here we have the following additional response.

NADA appears to be arguing that because manufacturers may ultimately exercise what is now 1 only a proposed option – scheduled for Board consi deration at its November 15, 2012 hearing – to demonstrate compliance in California using National Program compliance results, therefore the Californ ia regulations on their face are not as protective. Because NADA misreads the regulations now under EPA waiver review, EPA should dismiss NADA’s argument.

California demonstrated that it was reas onable for the Board to determine that the California standards as submitted are, in the aggregate, as or more stringent than the applicable federal standards. Th is was a fairly simple determination by the time of our original June 2012 waiver submittal (i ncluding our May 2012 Support Document) because: 1) EPA’s proposed 2017-2025 model y ear GHG standards were not finalized; 2) EPA had not finalized, much less propos ed, a 1 mg/mile PM standard and other criteria pollutant improvements for t he 2015 and subsequent model years; and 3) EPA has no ZEV program that may achieve an additional incr emental wells-to-wheels criteria pollutant reduction. That Board determinati on remains solid despite the now finalized National Program GHG rule because 2) and 3) remain true, and because EPA’s 2017-2025 National Program GHG standards, while finalized: A) do not account for upstream GHG emissions as do California’s; B) include vehi cle multipliers for natural gas vehicles, effectively diluting the f ederal standard vis a vis California’s; and

1 As ARB noted in its prior waiver submissions and at the September 19, 2012 hearing, while CARB has repeatedly stated its intent to meet its commitment to propose what others have termed a “deemed-tocomply” rule, our original June, 2012 waiver submission (including May, 2012 Support Document) correctly requested a waiver for the California st andards as submitted; these are the standards EPA noticed for comment in this Docket. For this re ason Global Automakers an d Alliance insistence on EPA waiting until CARB considers this proposed compli ance option (pp. 2-3) are similarly misplaced.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 3

C) relaxed criteria for GHG cr edits for mild hybrid-electri c vehicle trucks, which also dilutes the federal standard.

Moreover, because EPA must re view CARB’s determination of compared California and federal aggregate emissions from what NADA concede s are “interrelated” regulations, EPA cannot countenance NADA’s understated “Not e “ at the bottom of their page 2. There NADA attempts to exclude LEV III criteria pollutant benefits by sleight of hand; but the LEV III standards include the criteria pollutant (pri marily PM) reductions that California’s program has and the federal program t hus far lacks. In fact, it is exactly this federal-California difference that Global Automakers and the Alliance – i.e., the associations representing the affected vehicl e manufacturers – complain about in their comments (pp. 21-23).

In addition, the proposal for Board consideration this week is for an optional GHG compliance mechanism, and EPA is reviewing the feasibility of the GHG and related regulations as a whole. Even if CA RB approves the pending proposed deemed-tocomply amendments, one or more (or even a ll) manufacturers could still choose to continue demonstrating complianc e under the existing California regulations. Or, to the extent one or more (or even all) manufactu rers choose National Program compliance to meet California’s standards , that demonstration becomes part of compliance in California ; our standards would then by definition yi eld at least – i.e. essentially equal – the GHG reductions as from the National Prog ram, so California’s standards cannot be less stringent. That is ex actly what the proposed deem ed-to-comply provision is designed to do: ensure GHG emission reducti ons accruing to California will always be at least as great as under the Board- approved January 2012 standards. Thus NADA fairs no better under this “apples-to-apples” com parison it claims CARB failed to make. As the comparison is self-evident, ther e was no need for the Board to have made specific findings on the matter.

Contrary to NADA’s assertion on p. 12, we do not believe California is required to show that each California standar d – there the ZEV standard m entioned – is at least as protective in the aggregate; this would r ender the Clean Air Act Section 209(b) phrase “in the aggregate” superfluous. That is why CARB made one protectiveness determination. Nonetheless, NADA’s argument also cites only to our tank-to-wheel analysis on p. 15 of our May, 2012 Support Document, while conveniently omitting the upstream criteria and PM well-to-wheel emissions reductions we noted on the very next page. As EPA has acknowledged in waivi ng preemption of California’s prior ZEV program and its amendments, ZEVs are an investment in the future. While the exact level of indirect upstream emission r eductions are uncertain now, we need theseAir and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 4

technologies to be commercialized by 2025 to reach smog forming and GHG emission reduction targets long term.

In reference to the ZEV standards NADA al so argues that CARB failed to make the required protectiveness determination (Comment at p. 12), and that this failure is illustrated by CARB’s conclusions that:

1. There is no criteria emissions benefit from in cluding the ZEV proposal (sic) in terms of vehicle (t ank-to-wheel or TTW) emissions. 2 ; and

2. The ZEV regulations does not pr ovide GHG emission reductions in addition to the LEV III GHG regulat ion given that ZEV emissions are included in determining comp liance with the GHG standard. 3

CARB responds that the purpose of the Z EV regulation is to commercialize the technologies needed to meet long term goal s even beyond the emission reductions anticipated by the LEV III program. Addi tionally, while we do not account for any
vehicle emission reductions from ZEVs above and beyond the LEV program, emission reductions are achieved from upstream sour ces well to tank. Table 6.2 of the ISOR
details the well to wheel emissions benefits of the ZEV program compared to the LEV III

program.

Finally, should the Board approve the propos ed deemed-to-comply pr ovision, ARB may submit further comment demonstr ating that doing so does not affect the Board’s prior protectiveness determination on the Advanced Clean Car program.

Compelling & Extraordinary Conditions

While NADA correctly states (p. 6) that there is no binding precedent specific to EPA waiving California’s GHG regulations that requires EPA to treat California’s motor vehicle program as a whole in review ing the need for our GH G standards, NADA misses the point. We demonstrated (May 2012 Support Document, pp. 17-18, and October 19, 2012 Supplemental Co mment p. 2) that EPA’s lo ngstanding administrative practice to review the need for separate standards in the context of the ongoing compelling and extraordinary conditions justif ying California’s motor vehicle program remains sound. Applying that appropriate st andard of review, California’s ongoing need remains clear.

2 California Air Resources Board, CAA Section 209(b) Waiver Support Doc . (May, 2012), at p. 15.

3 California Air Resources Board, CAA Section 209(b) Waiver Support Doc . (May, 2012), at p. 16.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 5

NADA makes two other arguments that fare no better. First (p.7 ), they argue that California’s commitment to accept National Program compliance demonstrates we do not need the emission reductions from our GHG regulations. But this is no different than the numerous times that EPA has followed California’s lead – blazing a new trail as a laboratory for innovation – by catching up to or harmonizing with California’s standards. Indeed, this was par t of the Congressional design. 4 Second, NADA argues (at p.8), that referring to our regulations as a “backstop” is some kind of forbidden political consideration EPA cannot recognize. Again, California’s actions here are simply furthering the Congressional design of Section 209(b): to ensure that California can protect public health and welfare by ensur ing its ability to separately implement and enforce necessary emission reductions through its own regulatory mechanisms. Section 209(b) guarantees that California can continue to set – or in this hypothetical concern, keep – standards that at times will be more stringent than applicable federal standards. Indeed, that is the whole point of the allowed separate California standards, as NADA itself concedes elsewhere (as described above) by acknowledging our standards must be as or more stringent as – i.e., as protective as – the federal standards.

NADA also argues that CARB’s determinati on that the compelli ng and extraordinary conditions requirement is satisfied is based on flawed information. Specifically, they
take issues with CARB’s statement that by 2025 over 15 percent of all light-duty
vehicles sales in California ar e likely to be ZEVs and TZEVs. 5 NADA claims that: “This 15% figure is actually closer to an incredi ble 25% of all passenger vehicle sales when SUVs, pick-ups, and vans are subtracted as infeasible candidates for BEV and fuel cell technologies.” 6 CARB responds that automakers ar e, according to their own press
releases and statements 7 , pursuing a portfolio of technologies to meet the ZEV
mandate and commercialize zero emission technologies. One reason a number of them are pursuing fuel cell technology is because fuel cell drive systems work very effectively in larger vehicle platforms and a llow application of zero emission technology in a broader cross-section of vehicle platforms.

4 See 2006 National Academy of Science report at p. 4, attached here as Item 48.

5 NADA Comment at p. 13.

6 NADA Comment, fn. 70.

7 Toyota, Nissan, and Hyundai all provided testimony on product plans at the ACC Board Hearing. Announcements by Honda and Mercedes Benz are attached here as items 57 and 58.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 6

ZEV Consistency with Section 202(a)

In their comments, Global Automakers and the Alliance raise for the first time 8 the novel
claim that EPA must consider t he feasibility of ZEV infrastruc ture in other states that may or may not continue, and pr esumably other states that are contemplating, adoption
of California’s ZEV standards in their state. (Comment s at p. 12). Besides the obviously speculative nature such review w ould take, it’s simply not permitted under waiver law’s clear requirements or EPA’s past application of those requirements.

The proper scope of EPA’s inquiry is limited by the express terms of section 209(b).
This limitation is well illustrated both in EPA’s past waiver determinations 9 and in
caselaw. 10 In its 2009 waiver determination fo r California’s greenhouse gas emission standards EPA explicitly addressed the limit ations on a section 209(b) analysis with regards to the standard’s claimed impacts upon section 177 states. 11 In granting that waiver request, the Administrator stated: “section 209(b) does not authorize me in reviewing a waiver request to consider the im pact of actions or potential actions taken by other states under section 177 of the Act. [Citation om itted.] I therefore will not consider this claim in determining whether to grant Californi a’s waiver request.” 12

While the consideration of a standard’s feasibility in sect ion 177 states is not proper under section 209(b), it is worth noting that section 177 requires that a state adopting a standard allow for at least two years to elaps e before that standard may be applied to a given vehicle model year. This requirement of section 177 will allow a period of at least two years for the development of any necessary infrastructure within a state before that

8 Both manufacturer associations generally suppo rted the Advanced Clean Cars standards in the state rulemaking proceeding, in which neither association (nor individual manufacturer therein) raised this entirely new theory. See attachment Items 48 and 49 here. Rather, the limited number of technological feasibility and lead time arguments that were subm itted by industry during the Advanced Clean Cars rulemaking were focused on the 1 mg/mi PM standard. These were addressed in the Final Statement of Rulemaking for the LEV III element of the Adv anced Clean Cars rulemaking, available at http://www.arb.ca.gov/regac t/2012/leviiighg2012/levfsor.pdf

. CARB submits that California is entitled to address such novel issues in its state rulemaking pr oceeding so closely followed by a waiver hearing, else they are waived for purposes of EPA’s review.

9 49 Fed.Reg. 18887-02, 18889 (May 3, 1984) and 58 Fed. Reg. 4166 (January 7, 1993), LIV I Decision Document, at pp. 20-21.

10 Motor and Equipment Manufactu rers Association v. EPA ( MEMA I ), 627 F.2d 1095, 1114-20 (Administrator properly declined to review potential anti-trust and constitutional implications of CARB regulations under 209(b).)

11 74 Fed.Reg. 32744, 32783 (July 8, 2009).

12 Ibid

.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 7

state’s standard may come into effect. And here the states would provide well more – a decade more or a dozen years – before the final implementat ion year of the standards
in 2025.

While we believe it would be entirely inap propriate under the law for EPA to review feasibility in other states, it is also worth not ing that fueling infrastructure in states other than California does not seem to be a concer n as both Nissan and General Motors are currently marketing advanced technology v ehicles nationally, and Ford will begin 50 state marketing in early 2013. In addition, a number of Northeast states are preparing for plug-in electric vehicles through deploym ent of charging infrastructure. New York and Maryland have invested more than 5 million dollars in electric vehicle supply equipment 13

.
Regarding section 202(a), Global Automakers and the Alliance also ar gue that there is insufficient information to determine that ther e will be adequate infrastr ucture to justify ending the travel provisions for BEVs after MY 2017. (Comments at p. 14). Specifically, these commenters take issue with the asse ssment in the “Inter im Joint Technical Assessment Report: Light-Duty portion Ve hicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standar ds for Model Year s 2017-2025” that the development of charging infrastructure is inadequate. CARB responds that there is much activity in the field of electric vehi cle charging infrastructu re. Public charging programs are being funded by the California Energy Commission 14 , U.S. DOE EV Everywhere program 15 , the U.S. DOE EV Project 16 and other programs to address the needs of plug in vehicles. At this time it appears that charging infrastructure is sufficient and efforts underway to address infrastruc ture needs (through the programs listed above and through California’s Ze ro Emission Vehicle Execut ive Order) are focused on the highest priority charging locations, namel y multi-family dwellings and workplace charging.

Regarding feasibility, Global Automakers and the Alliance also claim that there is insufficient data on consumer demand to sh ow that there will be adequate consumer demand to meet the ZEV sales requirement s for model year 2018 and beyond. (Comments at pp. 17-21). In response CARB notes that curr ent sales data for plug in vehicles show sales growing rapidly – fast er than conventional hybrids grew when they

13 Press releases from Governor of New York (June 6, 2012) and Maryland Energy Administration (June 24, 2010), attached here as items 49 and 50.

14 2011-2012 Investment Plan For The Alternative and Renewable Fuel and Vehicle Technology Program attached here as item 60

15 EV-Everywhere Challenge announcement (March 7, 2012) attached as item 61

16 The EV Project Overview (accessed No vember 14, 2012) attached as item 62Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 8

were first launched 17 . Although the sales are yet at le vels that will be required in the 2018 and beyond timeframe, these early sales data, aggressive programs for community readiness, public educ ation, infrastructure development and incentives are in place to support as much as possible consumer acceptance and adoption of ZEV technologies.

NADA’s concerns regarding consistency of California’s GHG standards with section 202(a) (pp. 9-10) are likewise easily dism issed as they are not supported by the relevant caselaw or EPA’s past application of the law. NADA claims that under section 202(a) it is inappropriate for EPA to grant a waiver for a given standard unless the rulemaking agency can “demonstrate technologica l feasibility for all the years in which those standards would be in effect” and so ar gues that EPA should not grant a waiver to California to regulate vehicles after model year 2022 as such projections of technological feasibility woul d be too speculative. (NADA Comment at p. 9). In attempting to force this novel requirement into EPA’s analysis, NADA is disregarding decades of precedent that clearly sets out the appropriate “technol ogical feasibility” analysis under section 202(a). Section 202(a) has historically been interpreted to allow for projections of likely future technological development. Such projections do not need to “possess the inescapable logic of a mathematical deduction.” 18 Instead, such a projection is considered sufficient if it “answers any theoretical objections to the [projected technology], identifies the major steps necessary in refinement of the technology, and offers plausible reasons for believing that each of those steps can be completed in the time available.” 19 Moreover, where the r equirements of a standard are phased in over a lengthy period of time it bears on the likelihood of a proper finding of technological feasibility. 20 CARB submits that it has met the technological feasibility standards of section 202(a) with the projections and expl anations submitted with its waiver request and notes that NADA is taki ng issue with standards that do not come into effect for a lengthy period of time. This great length of time – until after model year 2022- supports a finding of technological fe asibility under NRDC, and would be in line with past EPA waiver decisions.

17 National Governors Association’s “State and Loca l Plug-In Electric Vehicle Workshop Summary” attached as item 63

18 Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency , (1981) 655 F.2d 318, 331.

19 Ibid

. 20 Ibid

.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 9

Cost-effectiveness Measured by Cost Per Ton of CO2 Removed is Irrelevant

The Global Automakers and the Alliance argu e that EPA should consider the cost of compliance with the ZEV program in terms of its cost-effectiveness per ton of CO2 removed. (Comments at pp. 16- 17). Such a metric is irre levant under section 202(a)’s cost of compliance analysis and E PA has never considered it in gr anting past waivers.

In its 2009 waiver determinati on for California’s greenhouse gas emission standards the administrator described the appropriate co st of compliance analysis under section 202(a):

Consistent with MEMA I , the Agency has evaluated costs in the waiver context by looki ng at the actual cost of compliance in the time provi ded by the regulation, not the regulation’s cost-effectiveness. Cost-effectiveness is a policy decision of California that is considered and made when California adopts the regulat ions, and EPA, historically has deferred to these policy decisions. EPA has stated in this regard, ‘the law makes it clear that the waiver request cannot be denied unless the specific findings designated in
the statute can be made. The issue of whether a proposed California requirement is likel y to result in only marginal improvement in air quality not commensurate with its cost or is otherwise an arguably unwise exercise of regulatory power is not legally pertinent to my decision under section 209. . ..’ [Citation omitt ed.] Thus under the language of section 202(a)(2), EPA will look at the compliance costs for manufacturers in developing and applying the technology with the costs being broken down on a cost per vehicle or
unit basis. 21

In sum, the cost-effectiveness analysis that the commenters want EPA to apply is wholly irrelevant to the requirements of section 202(a) and so should be disregarded.

Looking beyond the legal irrele vance of the commenters’ pr oposed analysis, it is worth noting that ARB would consider the ZEV prog ram in conjunction with the LEV program

21 74 Fed.Reg. 32744, 32775 (July 8, 2009.) (Emphasis added.)Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 10

when considering the costs and benef its of the program as a whole. This is appropriate because in their entirety, the program affects new mo tor vehicle smog forming and greenhouse gas emissions. The costs are r easonably spread across the entire new vehicle fleet because that is what consum ers will most likely see; in order to successfully place ZEVs with consumers, their incremental costs will be spread throughout the vehicle fleet. This is cons istent with the intr oduction of other new technologies and vehicle lines.

The ZEV regulation remains an im portant part of California’s plans to reach attainment of health based air quality standard s. To the extent that Cali fornia still requires emission reductions from passenger cars and light tru cks beyond 2025, it is imperative that zero emission technologies become commercially av ailable so that progress can continue beyond the reductions expected from LEV III.

Auto Manufacturers, not Dealers, are Regulated Parties Under ZEV Regulation

NADA claims that:

“For Dealers in California and in the Section 177 states that have adopted ZEV mandates, the new ZEV mandates cause direct and substantial
economic harm. ZEV mandates. ZEV mandates require dealers to purchase from their manufacturers vehicl es that are costly to buy, finance, and market, and support, at the ex pense of a wide-range of conventionally- and alternatively-propell ed vehicles that are acceptable to and demanded by the retail marketpl ace.” (NADA Comments p. 11).

In response, it is important to recogni ze that the ZEV regulations do not place requirements on dealers to offer for sale or sell ZEVs; rather the requirement is on the automakers. As is demonstrated by cu rrent automaker prac tice, ZEVs are being marketed by selected dealers willing to ta ke on the advanced technology products. Dealers hoping to include ZEVs in their s howrooms are applying to automakers to be accepted as sellers of ZEVs 22 . Since the obligation to sell and place ZEVs in service falls to the automakers, it is the automakers’ responsibility to make the subject cars marketable and sellable by the dealers. T hey have accomplished this to date with

22 Forbes.com article (May 23, 2012) attached here as item 51.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 11

competitive pricing and incentives as we ll as automaker sponsored advertising and
consumer education. 23

Market for ZEVs is Not Limited by Consumer Concerns on Range and Cost

NADA’s comments imply that the market for ZEVS is limited because of consumer concerns with limited range and upfront costs. 24

CARB responds that a more appropriate m easure of ZEV market success and growth potential would be to look at the years in which ZEVs have actually been available to
consumers. In the last two years, with the introduction of the Nissan Leaf, Ford Focus EV, Honda Fit EV, Mitsubishi iMiEV, and others, BEV sales have grown 228 percent 25

. While the numbers are still sma ll compared to the market as a whole, this market segment is faster growing than most c onventional new vehicle market entries.

CARB’s ZEV Standards Satisfy Section 202(a)’s Technological Feasibility Requirements

NADA disregarded well established law to creat e its own definition of “technological feasibility” under section 202(a) . NADA wants the analysis to require waiver applicants to establish that ZEV technology:

1. Be at least as safe as com parable conventionally -fueled vehicles, 2. Offer a range comparable to c onventionally-fueled vehicles, 3. Offer a refueling time comparable to conventionally-fueled vehicle, 4. Offer performance attributes and capabilit ies comparable to similar sized and conventionally-fueled vehicles, and 5. Most importantly, come to market at a cost comparable to conventionally-fueled
vehicles. 26

23 Ford Motor Company press release (April 18, 2012), Honda Fit EV Frequently Asked Questions (accessed November 14, 2012), Mitsubishi i-MiEV Freque ntly Asked Questions (accessed November 14, 2012), and Nissan LEAF website (accessed November 14, 2012), attached here as items 52 through 55.

24 “As of January 1995, out of 16,235,000 vehicles re gistered in California, only 1,079 were fuel cell
vehicles and BEVs. As of Januar y 2012, out of 30,495,000 light-duty v ehicles registered in California, less than 5,000 were fuel cell vehicles and BEVs.” (NADA Comments, fn. 63).

25 Natural Resources Defense Council post (October 31, 2012) attached here as item 56

26 NADA Comment at p. 15.Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 12

CARB responds that NADA’s position is not in line with the law. Technological feasibility is traditionally and correct ly assessed on the following: cost ( Motor and Equipment Mfrs. Ass'n, Inc. v. E.P.A , (1979) 627 F.2d 1095, 1118), performance ( International Harvester Co. v. Ruckelshaus , (1973) 478 F.2d 615, 641-647), and durability ( Natural Resources Defense Council, In c. v. U.S. Environmental Protection Agency , (1981) 655 F.2d 318, 333-335 ( NRDC )). The ZEVs produc ed for the regulation will meet the same safety requirements that conventionally fueled vehicles meet. They already achieve acceleration and power charac teristics expected on tr aditional vehicles and have demonstrated adequate durability. Range and refueling times are characteristics not traditionally taken into c onsideration. The aut omakers are targeting range for battery electric vehicles that matc h up with the vast majority of daily driving
needs for most consumers. 27 For fuel cell vehicles , automakers have demonstrated range capability equal to or gr eater than conventionally fueled vehicles. With regard to refueling time, BEV drivers look at refueli ng differently; 30 seconds a day at home to plug in and have a full range daily instead of visiting a gasoline station weekly is
characterized as much more convenient. Fuel cell vehicles refuel in about the same amount of time as a gasoline car. By a ll of these measures ZEVs are more than technologically feasible for commercializatio n, certainly so with the abundant nine to 12 years of lead time for the 2022-2025 model year s that are the focu s of the comments.

Current Low Level Particulate Matter M easurement Capabilitie s are Adequate for Section 202(a) Purposes

In their comments Global and the Alliance ra ised several issues with respect to the particulate matter (PM) requirements of LEV III (Docket ID No. EPA-HQ-OAR-2012- 0562-0349 pp. 21-23). Specifically, Global and the Alliance challenged the measurement capability of current test proce dures to accurately measure PM emissions at 1 mg/mi and the technical f easibility of achieving such low PM emissions. Before addressing their comments concerning measur ement capability and te chnical feasibility at low levels of PM emissions, we would first like to address t he implication in the introduction to their comments that, since PM emissions from light-duty vehicles (LDVs)
are so small a fraction of the PM invent ory in California, fu rther reductions are unwarranted. As noted on page 5 of the LEV III Technical Support Document,

27 Green Car Congress post (January 12, 2012) attached here as item 59Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 13

“Development of Matter Mass Standards for Future Light-Duty Vehicles 28 ,” CARB acknowledges that, while PM emissions from LDVs are not a major contributor to the inventory, they are a significant contri butor to urban pollution and human exposure, particularly near heavily traveled roadways, m any of which are located in major urban
centers in areas classified as non-attainm ent for health based PM ambient air quality standards. In addition, as we described earlier at pp. 9-10 the exact amount of pollution
reduced and the cost-effectivene ss of particular California standards is simply not
relevant to EPA’s determination.

Before turning to t heir comments on current measurement capability at low PM levels, it is important to note that im plementation of the 1 mg/mi PM standard begins in model year 2025, providing thirteen years of lead time to improve the test procedure and for industry to incorporate needed improvements to their engines and fuel systems. Furthermore, CARB has consistently dem onstrated PM measurem ent capability at 1 mg/mi level at our vehicle test laboratory using our current understanding of new test procedures in 40 CFR Part 1066 current ly under development by EPA and has
identified areas of im provement to Part 1066 it intends to evaluate in cooperation with industry and USEPA (see pp. 54-59 of the above referenced Technical Support Document). Per NRDC, CARB has thus identified barrier s to implementation of needed technologies and a viable path to overcome those barriers.

The situation is analogous to CARB’s adopt ion of the LEV II SULEV emission standard in 1999. At that time, industry submi tted similar comments on the inadequacy of existing test procedures to measure at the requisite low emission levels 29 . As is the case here, CARB had demonstrated adequate m easurement capability to support the standard and committed to work with industry on further improving test procedures and instrumentation. As a result, three years la ter, in model year 2002, industry certified the first two SULEV vehicle models, the H onda Accord EX and Nissan Sentra CA.

28 Development of Particulate Matter Mass Standards for Future Light-Duty Vehicles can be found at http://www.arb.ca.gov/regac t/2012/leviiighg2012/levappp.pdf

. 29 Final Statement of Reasons, pp. 55-56: “LEV II” AND “CAP 2000" AMENDMENTS TO THE CALIFORNIA EXHAUST AND EVAPORATIVE EMISSI ON STANDARDS AND TEST PROCEDURES FOR PASSENGER CARS, LIGHT-DUTY TRUCKS A ND MEDIUM-DUTY VEHICLES, AND TO THE EVAPORATIVE EMISSION REQUIREMENTS FOR HEAVY-DUTY VEHICLES can be found at http://www.arb.ca.gov/regac t/levii/to_oal/leviifso.pdf

.I.

I

! Air and Radiation Docket Docket ID No. EPA-HQ-OAR-2012-0562 November 14, 2012 Page 14

To summarize, the LEV Ill PM standards are based on a particular concern for their impact on public health and air quality. In addition, industry has not made a definitive

case that would warrant deferral of a waiver for these standards.

Conclusion

Having responded to the limited comments presented in opposition to California's request, ARB respectfully requests EPA to grant a Clean Air Act Section 209(b) waiver of preemption for all Advanced Clean Car standards, for all model years.

Sincerely,

Tom Cackette Chief Deputy Executive Officer

cc: Air and Radiation Docket Docket ID No. EPA-HQ-OAR-2012-0562 Environmental Protection Agency Mailcode: 61 02T 1200 Pennsylvania Avenue NW Washington, D.C. 20460

(via e-mail, with attachments)

David Dickinson Office of Transportation and Air Quality United States Environmental Protection Agency

In support of this supplement to our May, 2012 waiver request, the following additional documents pertaining to the ACC Package are enclosed on compact disc, with the Item numbering continuing from our October 19, 2012 supplement:Air and Radiation Docket Docket ID No. EPA–HQ–OAR–2012–0562 November 14, 2012 Page 15

In support of this supplement to our May, 2012 waiver request, the following additional documents pertaining to the ACC Package ar e enclosed on compact disc, with the Item numbering continuing fr om our October 19, 2012 supplement:

48. State and Federal Mob ile Source Standards, Nati onal Academy of Sciences (2006), National Academy Press. 49. “Governor Cuomo Announces Deployment of 325 Electric Vehicle Charging Stations Across New York State”; pr ess release, Governor of New York 50. “Governor O’Malley Fuels $1 Million Inve stment for Additional Electric Vehicle Advancements in Maryland: Charging St ations Will Reduce State Demand on Oil, Save Taxpayers Money”, press rel ease, Maryland Energy Administration 51. “Ford Dealerships Prepar e for the Focus Electric”, May 3, 2012, Forbes.com 52. “Ford Launches Documentary Series, Educ ation Push & Electric Car to Help Consumers Make Greener Shift”, pre ss release, Ford Motor Company 53. Honda Fit EV Frequently Asked Q uestions, accessed November 14, 2012 54. Mitsubishi iMiEV Frequently Asked Questions, accessed November 14, 2012 55. Nissan LEAF website, accessed November 14, 2012 56. “Electric Car Sales Increase 228 Pe rcent”, posted October 31, 2012, Natural Resources Defense Council Staff Blog 57. Summary of Honda CEO Speech on Sept ember 21, 2012, press release, Honda Motor Company 58. “Mercedes Will Release First Mass-Market Fuel Cell in 2014”, posted June 24, 2011, Hybridcars.com 59. “Another Cut at US Electric Vehi cle Range Requirements and Usage Patterns; Fully-Charged LEAF Could Handle 83-95% of All Driving Days”, posted January 12. 2012, Greencarcongress.com 60. 2011-2012 Investment Plan For The Al ternative And Renewable Fuel and Vehicle Technology Program 61. “President Obama Launches EV-Everyw here Challenge as Part of Energy Department’s Clean Energy Grand C hallenges” posted March 7, 2012,
energy.gov 62. “The EV Project: Overview”, access ed November 14, 2012, theevproject.com 63. National Governors Association “Sta te and Local Plug-In Electric Vehicle Workshop: Getting Ready Togethe r” July 10-11, 2012 Workshop Summary