Matthew Rodriquez 

Secretary for 

Environmental Protection

 

The energy challenge facing California is real. Every Californian needs to take immediate 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 Pollution Control Standards; Advanced Clean Car 

Program; Request for Waiver of Preemption; Opportunity for Public Hearing and 

Public Comment; 77 Fed.Reg. 53199 (August 31, 2012); DOCKET ID NO. EPAHQ-OAR-2012-0562 

Dear Ms. Cohen: 

California’s Air Resources Board (CARB) submits 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 raised even cumulatively come close to 

clearing NADA’s suggested “preponderance of evidence” burden, EPA should reject 

NADA’s invitation for EPA to jettison its administrative precedent applying a “clear and 

compelling” evidence standard to review of California’s protectiveness determinations. 

As EPA has stated, “Although MEMA I did not explicitly 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 would 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 also H.R. Rep. No. 95-294 at 301-302 (1977), 
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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 various pollutants in light of 

the air quality, topography, photochemistry, and climate in [California], before EPA may 

deny a waiver.”) EPA has thus applied the more restrictive standard of review for good 

reason, and should continue to do so. We also note that the “shifting” nature of the 

burden of proof for which NADA cites (p. 4) to the MEMA I case, just as easily allows 

EPA to continue applying the more restrictive standard. 

In its prior submissions to the Docket ARB anticipated and 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 now1 only a proposed option – scheduled for Board consideration at its November 15, 

2012 hearing – to demonstrate compliance in California using National Program 

compliance results, therefore the California 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 reasonable for the Board to determine that the 

California standards as submitted are, in the aggregate, as or more stringent than the 

applicable federal standards. This was a fairly simple determination by the time of our 

original June 2012 waiver submittal (including our May 2012 Support Document) 

because: 1) EPA’s proposed 2017-2025 model year GHG standards were not finalized; 

2) EPA had not finalized, much less proposed, a 1 mg/mile PM standard and other 

criteria pollutant improvements for the 2015 and subsequent model years; and 3) EPA 

has no ZEV program that may achieve an additional incremental wells-to-wheels criteria 

pollutant reduction. That Board determination 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 vehicle multipliers for natural 

gas vehicles, effectively diluting the federal 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 standards as submitted; these are the standards EPA 

noticed for comment in this Docket. For this reason Global Automakers and Alliance insistence on EPA 

waiting until CARB considers this proposed compliance option (pp. 2-3) are similarly misplaced. 
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C) relaxed criteria for GHG credits for mild hybrid-electric vehicle trucks, which also 

dilutes the federal standard.

Moreover, because EPA must review CARB’s determination of compared California and 

federal aggregate emissions from what NADA concedes are “interrelated” regulations, 

EPA cannot countenance NADA’s understated “Note “ 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 (primarily PM) reductions that 

California’s program has and the federal program thus far lacks. In fact, it is exactly this 

federal-California difference that Global Automakers and the Alliance – i.e., the 

associations representing the affected vehicle 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 CARB approves the pending proposed deemed-tocomply amendments, one or more (or even all) manufacturers could still choose to 

continue demonstrating compliance under the existing California regulations. Or, to the 

extent one or more (or even all) manufacturers choose National Program compliance to 

meet California’s standards, that demonstration becomes part of compliance in 

California; our standards would then by definition yield at least – i.e. essentially equal – 

the GHG reductions as from the National Program, so California’s standards cannot be 

less stringent. That is exactly what the proposed deemed-to-comply provision is 

designed to do: ensure GHG emission reductions 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” comparison it claims CARB failed to make. 

As the comparison is self-evident, there 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 standard – there the ZEV standard mentioned – is at least as 

protective in the aggregate; this would render 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 waiving 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 reductions are uncertain now, we need these 
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technologies to be commercialized by 2025 to reach smog forming and GHG emission 

reduction targets long term. 

In reference to the ZEV standards NADA also 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 including the ZEV proposal 

(sic) in terms of vehicle (tank-to-wheel or TTW) emissions.2

; and 

2. The ZEV regulations does not provide GHG emission reductions in 

addition to the LEV III GHG regulation given that ZEV emissions are 

included in determining compliance with the GHG standard.3

CARB responds that the purpose of the ZEV regulation is to commercialize the 

technologies needed to meet long term goals even beyond the emission reductions 

anticipated by the LEV III program. Additionally, while we do not account for any 

vehicle emission reductions from ZEVs above and beyond the LEV program, emission 

reductions are achieved from upstream sources 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 proposed deemed-to-comply provision, ARB may 

submit further comment demonstrating 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 reviewing the need for our GHG standards, NADA 

misses the point. We demonstrated (May 2012 Support Document, pp. 17-18, and 

October 19, 2012 Supplemental Comment p. 2) that EPA’s longstanding administrative 

practice to review the need for separate standards in the context of the ongoing 

compelling and extraordinary conditions justifying California’s motor vehicle program 

remains sound. Applying that appropriate standard 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. 
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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 part 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 ensuring 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 determination that the compelling 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 are likely to be ZEVs and TZEVs.5 NADA claims that: “This 

15% figure is actually closer to an incredible 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 are, according to their own press 

releases and statements7, 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 allow 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. 
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ZEV Consistency with Section 202(a) 

In their comments, Global Automakers and the Alliance raise for the first time8 the novel 

claim that EPA must consider the feasibility of ZEV infrastructure in other states that 

may or may not continue, and presumably other states that are contemplating, adoption 

of California’s ZEV standards in their state. (Comments at p. 12). Besides the 

obviously speculative nature such review would 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 determinations9

 and in 

caselaw.10 In its 2009 waiver determination for California’s greenhouse gas emission 

standards EPA explicitly addressed the limitations 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 impact of actions or potential actions taken 

by other states under section 177 of the Act. [Citation omitted.] I therefore will not 

consider this claim in determining whether to grant California’s waiver request.”12

While the consideration of a standard’s feasibility in section 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 elapse 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 supported 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 submitted 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 Advanced Clean Cars rulemaking, available at 

http://www.arb.ca.gov/regact/2012/leviiighg2012/levfsor.pdf. CARB submits that California is entitled to 

address such novel issues in its state rulemaking proceeding 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 Manufacturers 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. 
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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 implementation year of the standards 

in 2025. 

While we believe it would be entirely inappropriate under the law for EPA to review 

feasibility in other states, it is also worth noting that fueling infrastructure in states other 

than California does not seem to be a concern as both Nissan and General Motors are 

currently marketing advanced technology vehicles 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 deployment of charging infrastructure. New York 

and Maryland have invested more than 5 million dollars in electric vehicle supply 

equipment13. 

Regarding section 202(a), Global Automakers and the Alliance also argue that there is 

insufficient information to determine that there will be adequate infrastructure to justify 

ending the travel provisions for BEVs after MY2017. (Comments at p. 14). Specifically, 

these commenters take issue with the assessment in the “Interim Joint Technical 

Assessment Report: Light-Duty portion Vehicle Greenhouse Gas Emission Standards 

and Corporate Average Fuel Economy Standards for Model Years 2017-2025” that the 

development of charging infrastructure is inadequate. CARB responds that there is 

much activity in the field of electric vehicle charging infrastructure. Public charging 

programs are being funded by the California Energy Commission14, U.S. DOE EV 

Everywhere program15, the U.S. DOE EV Project16 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 infrastructure needs (through the programs listed 

above and through California’s Zero Emission Vehicle Executive Order) are focused on 

the highest priority charging locations, namely multi-family dwellings and workplace 

charging. 

Regarding feasibility, Global Automakers and the Alliance also claim that there is 

insufficient data on consumer demand to show that there will be adequate consumer 

demand to meet the ZEV sales requirements for model year 2018 and beyond. 

(Comments at pp. 17-21). In response CARB notes that current sales data for plug in 

vehicles show sales growing rapidly – faster 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 November 14, 2012) attached as item 62 
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were first launched17. Although the sales are yet at levels that will be required in the 

2018 and beyond timeframe, these early sales data, aggressive programs for 

community readiness, public education, 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 dismissed 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 technological feasibility for all the years in which 

those standards would be in effect” and so argues that EPA should not grant a waiver to 

California to regulate vehicles after model year 2022 as such projections of 

technological feasibility would 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 “technological 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 requirements 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 explanations submitted with its 

waiver request and notes that NADA is taking 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 feasibility under NRDC, and would be in line 

with past EPA waiver decisions. 

 

17 National Governors Association’s “State and Local 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. 
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Cost-effectiveness Measured by Cost Per Ton of CO2 Removed is Irrelevant 

The Global Automakers and the Alliance argue 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 irrelevant under section 202(a)’s 

cost of compliance analysis and EPA has never considered it in granting past waivers. 

In its 2009 waiver determination for California’s greenhouse gas emission standards the 

administrator described the appropriate cost of compliance analysis under section 

202(a): 

Consistent with MEMA I, the Agency has evaluated costs in 

the waiver context by looking at the actual cost of 

compliance in the time provided 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 regulations, 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 likely 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 omitted.] 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 irrelevance of the commenters’ proposed analysis, it is worth 

noting that ARB would consider the ZEV program in conjunction with the LEV program 

 

21 74 Fed.Reg. 32744, 32775 (July 8, 2009.) (Emphasis added.) 
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when considering the costs and benefits of the program as a whole. This is appropriate 

because in their entirety, the program affects new motor vehicle smog forming and 

greenhouse gas emissions. The costs are reasonably spread across the entire new 

vehicle fleet because that is what consumers will most likely see; in order to 

successfully place ZEVs with consumers, their incremental costs will be spread 

throughout the vehicle fleet. This is consistent with the introduction of other new 

technologies and vehicle lines. 

The ZEV regulation remains an important part of California’s plans to reach attainment 

of health based air quality standards. To the extent that California still requires emission 

reductions from passenger cars and light trucks beyond 2025, it is imperative that zero 

emission technologies become commercially available 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 vehicles that are costly to buy, finance, 

and market, and support, at the expense of a wide-range of 

conventionally- and alternatively-propelled vehicles that are acceptable to 

and demanded by the retail marketplace.” (NADA Comments p. 11). 

In response, it is important to recognize 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 current automaker practice, ZEVs are being 

marketed by selected dealers willing to take on the advanced technology products. 

Dealers hoping to include ZEVs in their showrooms are applying to automakers to be 

accepted as sellers of ZEVs22. 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. They have accomplished this to date with 

 

22 Forbes.com article (May 23, 2012) attached here as item 51. 
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competitive pricing and incentives as well 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 measure 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 percent25. 

While the numbers are still small compared to the market as a whole, this market 

segment is faster growing than most conventional new vehicle market entries. 

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

Requirements 

NADA disregarded well established law to create 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 comparable conventionally-fueled vehicles, 

2. Offer a range comparable to conventionally-fueled vehicles, 

3. Offer a refueling time comparable to conventionally-fueled vehicle, 

4. Offer performance attributes and capabilities 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 Frequently 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 registered in California, only 1,079 were fuel cell 

vehicles and BEVs. As of January 2012, out of 30,495,000 light-duty vehicles 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. 
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CARB responds that NADA’s position is not in line with the law. Technological 

feasibility is traditionally and correctly 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, Inc. v. U.S. Environmental Protection 

Agency, (1981) 655 F.2d 318, 333-335 (NRDC)). The ZEVs produced for the regulation 

will meet the same safety requirements that conventionally fueled vehicles meet. They 

already achieve acceleration and power characteristics expected on traditional vehicles 

and have demonstrated adequate durability. Range and refueling times are 

characteristics not traditionally taken into consideration. The automakers are targeting 

range for battery electric vehicles that match 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 greater than conventionally fueled vehicles. With regard to 

refueling time, BEV drivers look at refueling 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 all of these measures ZEVs are more than 

technologically feasible for commercialization, certainly so with the abundant nine to 12 

years of lead time for the 2022-2025 model years that are the focus of the comments. 

Current Low Level Particulate Matter Measurement Capabilities are Adequate for 

Section 202(a) Purposes 

In their comments Global and the Alliance raised 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 procedures to accurately measure PM emissions 

at 1 mg/mi and the technical feasibility of achieving such low PM emissions. Before 

addressing their comments concerning measurement capability and technical feasibility 

at low levels of PM emissions, we would first like to address the implication in the 

introduction to their comments that, since PM emissions from light-duty vehicles (LDVs) 

are so small a fraction of the PM inventory in California, further 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 59 
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“Development of Matter Mass Standards for Future Light-Duty Vehicles28,” CARB 

acknowledges that, while PM emissions from LDVs are not a major contributor to the 

inventory, they are a significant contributor to urban pollution and human exposure, 

particularly near heavily traveled roadways, many of which are located in major urban 

centers in areas classified as non-attainment 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-effectiveness of particular California standards is simply not 

relevant to EPA’s determination. 

Before turning to their comments on current measurement capability at low PM levels, it 

is important to note that implementation 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 demonstrated PM measurement capability at 1 

mg/mi level at our vehicle test laboratory using our current understanding of new test 

procedures in 40 CFR Part 1066 currently under development by EPA and has 

identified areas of improvement 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 barriers to implementation of needed 

technologies and a viable path to overcome those barriers. 

The situation is analogous to CARB’s adoption of the LEV II SULEV emission standard 

in 1999. At that time, industry submitted similar comments on the inadequacy of 

existing test procedures to measure at the requisite low emission levels29. As is the 

case here, CARB had demonstrated adequate measurement capability to support the 

standard and committed to work with industry on further improving test procedures and 

instrumentation. As a result, three years later, in model year 2002, industry certified the 

first two SULEV vehicle models, the Honda 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/regact/2012/leviiighg2012/levappp.pdf. 29 Final Statement of Reasons, pp. 55-56: “LEV II” AND “CAP 2000" AMENDMENTS TO THE 

CALIFORNIA EXHAUST AND EVAPORATIVE EMISSION STANDARDS AND TEST PROCEDURES 

FOR PASSENGER CARS, LIGHT-DUTY TRUCKS AND MEDIUM-DUTY VEHICLES, AND TO THE 

EVAPORATIVE EMISSION REQUIREMENTS FOR HEAVY-DUTY VEHICLES can be found at 

http://www.arb.ca.gov/regact/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 are enclosed on compact disc, with the Item 

numbering continuing from our October 19, 2012 supplement: 

48. State and Federal Mobile Source Standards, National Academy of Sciences 

(2006), National Academy Press. 

49. “Governor Cuomo Announces Deployment of 325 Electric Vehicle Charging 

Stations Across New York State”; press release, Governor of New York

50. “Governor O’Malley Fuels $1 Million Investment for Additional Electric Vehicle 

Advancements in Maryland: Charging Stations Will Reduce State Demand on 

Oil, Save Taxpayers Money”, press release, Maryland Energy Administration 

51. “Ford Dealerships Prepare for the Focus Electric”, May 3, 2012, Forbes.com 

52. “Ford Launches Documentary Series, Education Push & Electric Car to Help 

Consumers Make Greener Shift”, press release, Ford Motor Company 

53. Honda Fit EV Frequently Asked Questions, 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 Percent”, posted October 31, 2012, Natural 

Resources Defense Council Staff Blog 

57. Summary of Honda CEO Speech on September 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 Vehicle 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 Alternative And Renewable Fuel and 

Vehicle Technology Program 

61. “President Obama Launches EV-Everywhere Challenge as Part of Energy 

Department’s Clean Energy Grand Challenges” posted March 7, 2012, 

energy.gov 

62. “The EV Project: Overview”, accessed November 14, 2012, theevproject.com 

63. National Governors Association “State and Local Plug-In Electric Vehicle 

Workshop: Getting Ready Together” July 10-11, 2012 Workshop Summary