BEFORE THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

In the Matter of California’s Request for Confirmation that its Requirements to Reduce Idling Emissions from New and In-Use Trucks, Beginning in 2008, are Either Not Preempted or Within the Scope of Previous Waivers of Preemption Issued Pursuant to Section 209(b) and 209(e) of the Clean Air Act, and Request for New

Authorization Under Clean Air Act Section 209(e)(2)

__________________ ________________ ) ) ) ) ) ) ) ) ) ) )

WAIVER AND AUTHORIZATION ACTION SUPPORT DOCUMENT

SUBMITTED BY THE

CALIFORNIA AIR RESOURCES BOARD

Submitted May 9, 2008

I. INTRODUCTION AND OVERVIEW

The California Air Resources Board (CARB or Board) requests that the Administrator of

the U.S. Environmental Pr otection Agency (EPA) take the Clean Air Act (CAA) section 209(b) and (e)(2) waiver and authorizati on actions described below for CARB’s regulatory amendments adding requirements to reduce idling emissi ons from new and in-use trucks beginning in 2008 (the 2008 Truck Idling Requirements) . The remaining paragraphs of this Section I su mmarize the specific actions we are requesting. Section II describes the process by which CARB adopted the amendment s. Section III describes the 2008 Truck Idling Requirements. Section IV describes the pertinent California standards, test procedures, and re lated requirements for which waivers and authorizations have previously been issued. Section V describes the criteria and principles for granting CAA section 209 waivers, authorizations, and related

determinations for California r egulatory activities. Sections VI through IX demonstrate that the 2008 Truck Idling Requi rements meet the criteria for waiver and authorization actions CARB is requesting.

The 2008 Truck Idling Requirements consist of three elements. The first element, referred to as the “new engine requirements,” requires that new Calif ornia-certified 2008 and subsequent model-year on-road diesel engine s in trucks with a gross vehicle weight rating (GVWR) greater than 14,000 pounds (heavy-duty diesel vehicles or HDDVs) be equipped with a system that automatically s huts down the engine after five minutes of continuous idling. In lieu of the engine shutdown system, manufacturers may optionally certify their engines to an oxides of nitrogen (NOx) idling emission standard of 30 gramsper hour under loaded, low and high idle oper ating conditions. Since the engine shutdown system requirement is akin to an operational cont rol limiting extended idling, CARB requests that EPA confirm that the re quirement is not preempted by section 209(a). Alternatively, the engine shutdow n requirements are “other conditions precedent” required prior to the initial sale of new heavy-duty diesel engines; since a

waiver has been issued for California’s 2007 and subsequent model-year standards for these engines, no further waiver action is ne cessary. Should EPA conclude that the engine shutdown requirement is an “emission standard,” CARB requests that the Administrator confirm that the requirement is within the scope of the waiver for 2007 and later heavy-duty diesel engines. No waiver action is necessary for the optional NOx idling emission standard as it is solely an option to the engine shutdown provision. A requirement that engines certified to the idling emissions standard carry a “clean idle” label is an additional condition pr ecedent that is not preempted.

The second element is designed to reduce id ling emissions in Ca lifornia from the existing fleet of sleeper trucks, whether t hey are registered in California or another state. A preexisting CARB Air Toxic Contro l Measure (ATCM) requires that the operator of a commercial vehicle with a GVWR great er than 10,000 pounds manually shut off the engine before an idling time lim it of five minutes is reached. The 2008 Truck Idling Requirements eliminated the provision that exempted sl eeper-berth equipped trucks when the operator is resting in the sleeper berth and the engine is idling for climate control or to power on-board accessories. As a result, the operator of a sleeper truck is required to manually shut down the engine a fter five minutes of continuous idling starting January 1, 2008. This requirement – referred to as the “in-use idling ATCM requirement” – is a purely operational c ontrol that is not preempted by CAA section 209(a) and thus needs no waiver action by EPA.

The third element was developed because of the expectation that the new idling restrictions could result in many HDDV operators using alternative technologies to supply power for truck cab or sleeper ber th climate control and/or other on-board

accessories that would otherwise have been generated by the conti nuous idling of the truck’s main engine. These technologies include, but are not limited to, internal combustion engine driven alternative power s upplies (APSs) and fuel-f ired heaters. To insure that such technologies do not unde rmine or reduce the em ission benefits of the 2008 Truck Idling Requirements, CARB est ablished in-use performance requirements referred to as the “alternative technology r equirements” that apply starting January 1,

2008 to diesel-fueled commercial vehicles with a GVWR greater than 10,000 pounds operated in California. Those requirements, and the authorization action sought (if any),

are summarized as follows.

• The driver may not operate an APS using an internal combustion engine unless that engine has been certifi ed to applicable California off-road and/or federal nonroad emissions standards and test proc edures for its fuel type and power category. Any new APS engine acquired since the 2000 model year is already required to meet the Calif ornia or federal nonroad engine standards. EPA should confirm that the in-use performance r equirements are within the scope of the

2authorization for the new nonroad engine standards to be issued by EPA pursuant to CAA section 209(e)(2).

• The driver may not operate a dies el-fueled APS engine on a vehicle with a primary engine certified to the 20 07 and subsequent model-year heavy-duty diesel engine standards unless the APS is cert ified to the applicable California or federal non-road engine emission standard and either :

o The exhaust is routed into the truck’s exhaust system and PM trap;

o The engine is equipped with a level 3 verified PM control strategy (i.e. achieves at least an 85 perc ent PM reduction efficiency); or

o The engine uses other procedures to demonstrate an equivalent level of emissions compliance.

CARB seeks an authorization for th is requirement pursuant to CAA section 209(e). A requirem ent that a complying APS carry a “verified clean APS” label is an accompanying enf orcement procedure that should be included in the

authorization action.

• There are also requirements pertaining to fuel-fired heater s and to other idle reduction technologies such as the us e of batteries, fuel cells, power inverter/chargers for on-shore power, and tru ck electrification. The provisions on fuel-fired heaters do not impose require ments on motor vehicle engines or nonroad engines and accordingly are not preempted by section 209. The provisions on other idle reduction technol ogies either fall within the scope of an authorization being sought by CARB or meet the criteria for a new authorization.

II. ADOPTION OF THE 2008 TRUCK IDLING REQUIREMENTS

The Board considered the 2008 Truck Id ling Requirements at an October 20, 2005 hearing. At the hearing, t he Board approved the requirements by Resolution 05-55 (Reference 5) subject to a supplemental comm ent process. In accordance with the Board’s direction, after making modifications to the regulati on available for supplemental public comment, ARB’s Executive Office r formally adopted the 2008 Truck Idling Requirements by issuing Executive Order R-06-003 on September 1, 2006 (Reference 6). The 2008 Truck Idling Require ments were submitted to California’s

Office of Administrative Law (OAL) for review on September 1, 2006, and were approved by OAL and filed with California’s Se cretary of State on October 16, 2006. The 2008 Truck Idling Requirements became e ffective under state law November 15,

2006.

The specific regulatory text amended by the 2008 Truck Idling Requirements is set forth in title 13, California Code of Regulatio ns (CCR), sections 1956.8, 2404, 2424, 2425, and 2485 (see Reference 9). Those sections incorporate the ame nded test procedure

3document: "California Exhaust Emission St andards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engi nes and Vehicles.” (See Reference 10.)

III. SUMMARY OF THE 2008 TRUCK IDLING REQUIREMENTS

A. Background

In California, emissions generated from id ling HDDVs pose a significant air quality problem. By 2010, HDDVs are estimated to account for as much as 28 percent, or 559 tons per day (tpd), of the statewide m obile source NOx emission inventory and 9 percent, or 12 tpd, of the st atewide mobile source PM em ission inventory. This is especially significant since these estimates al ready take into account the stringent 2007 on-road heavy-duty diesel engine (HDDE) ex haust emission standards recently adopted by CARB and EPA.

Operators of HDDVs general ly idle vehicle engines at truck stops and at rest areas during layover hours to provide heat or coo ling to the sleeper berth, to operate on-board electrical accessories, to maintain batte ry charge, and to warm the engine for easy start-up during cold weather. HDDV idling is also significant at warehouse/distribution centers and port terminals where loading an d unloading freight re quire long waiting periods. The high density of idling trucks at such locations for extended periods of time can produce highly localized and concentrated emissions which adversely affect the health of the drivers and the neighboring co mmunities. The health concerns become more serious when these idling centers are located in low income communities that are already disproportionately impacted by air po llution. HDDV idling also consumes fuel and increases engine main tenance costs.

California’s plan for reducing the reactive organic gases (ROG) and NOx that contribute to both ozone and particulate matter (PM) formation is set forth in the 2003 State and Federal Strategy for the Calif ornia State Implementation Plan (2003 SIP). Mobile sources produce the majority of the state’s oz one precursor emissions and diesel PM inventory. Controlli ng mobile source emissions is t herefore an important element of California’s strategy for a ttaining air quality standards and constitutes a significant part of the 2003 SIP. The 2008 Truck Idling Requirements are designed to reduce emissions generated from id ling on-road HDDEs, and are par t of the 2003 SIP’s proposed on-road heavy-duty vehicle contro l measure “ON-RD HVY DUTY 3.”

On December 12, 2002, CARB adopted an AT CM that required op erators of school buses, transit buses, and other commercial vehi cles to manually shut off their engines upon arriving at a school. Restarting the engines is limited to no more than 30 seconds before departing. 1 CARB subsequently adopted at its July 22, 2004 public hearing more general requirements to limit emissi ons from in-use diesel-fueled commercial vehicles with a GVWR greater than 10, 000 pounds. Operators of commercial trucks and buses are required to manually shut off their engines before an id ling time limit of

1 Title 13, CCR section 2480.

4five minutes is reached. However, th is requirement does not apply to idling sleeper-berth equipped trucks unless they are lo cated within 100 feet from residential

homes or schools. 2

B. T he 2008 Truck Idling Requirements

1. The New Engine Requirements for New 2008 and Subsequent

Model-Year California-Certified HDDE Requirements (Amendments to title 13, CCR section 1956.8)

The new engine requirements provide two compliance options for new California certified 2008 and subsequent model-year HDDEs installed in trucks with a GVWR greater than 14,000 pounds. Gasoline engines and diesel engines produced for use in buses (commercial buses as well as school buses), recreational v ehicles, medium-duty vehicles, military tactical vehicles or aut horized emergency vehicles are exempted from the new engine requirements.

a. Idle Shutdown System

The first compliance option requires engine manuf acturers to install in new California certified 2008 and subsequent model-year HDDEs a system that aut omatically shuts down the engine after five minutes of continuous idle operation. The engine shutdown system must be tamper resistant and non-programmable.

(i) Shutdown Conditions

The engine shutdown system must automatic ally shut down the engine after five minutes of continuous engine operation at id le when the truck comes to a stop, the transmission is set in the “neutral” or “park” position, and the parking brake is engaged. If the parking brake is not engaged, the engine shutdown system must shut down the engine after 15 minutes of continuous idling if the truck is stopped and the transmission

is set in the “neutral” or “park” position.

(ii) Shutdown Timer Reset Provisions

A truck operator is allowed to reset the engine shutdown system timer before the engine shuts down. A warning signal, such as a light or sound indicator inside the truck’s cab, may be used to alert the operator up to 30 seconds prior to engine shutdown. The operator can then reset the engine shutdow n system by momentarily changing the position of the accelerator, clutch, or br ake pedal or any other mechanism only during

the last 30 seconds of the five-minute shutdown time limit (or the last 30 seconds of the 15 minute shutdown limit when the parking brak e is not engaged). This will allow the truck operator to continue oper ating the engine at idle as long as the truck is being

driven.

2 Title 13, CCR section 2485.

5(iii) Override Provisions

The engine shutdown system may be overri dden if the engine is operating power take-off (PTO) equipment such as that asso ciated with trash trucks, cement mixers, mobile cranes, dump trucks, and vehicles wit h conveyors or other loading or unloading devices. Equipment associated with a tr uck’s air conditioning system and on-board accessories (e.g., a televisi on, microwave, etc.) do not qualify as PTO equipment. The engine shutdown system may also be ove rridden to warm up the engine if the engine coolant temperature is below 60 ° F. The engine coolant tem perature must be measured using the engine’s existing engine coolant temperature sensor designed for engine protection. However, a manufacturer may re quest the Executive Officer’s approval to

use other methods of measur ing the engine coolant temper ature. Finally, the engine shutdown system may be overridden duri ng exhaust emission control device regeneration or maintenance per iods, of if engine servicing or maintenance requires extended idling.

(iv) Technical Feasibilit y of Engine Shutdown Systems

As discussed in Section V.A. of the Staff Report: Initial Statement of R easons (ISOR, Reference 2), engine shutdown systems are software-based contro ls that are presently

available as standard featur es in most commercially available on-road heavy-duty engines. Engine manufacturers including Detr oit Diesel Corporation, Cummins, and Caterpillar presently build engine shutdown systems into their engines’ electronic control software and make those engine shutdown systems available as standard features, but most fleet owners and operator s do not activate such engine shutdown systems. CARB staff found t hat only minor modification s to the programming of currently available HDDE electronic cont rol software would be needed to comply with this new engine requirement compliance opt ion. Staff also estimated that the compliance costs associated with this opt ion would be minimal – $100 per engine to cover additional administrative costs and minimal reprogramming costs.

b. Optional NOx Idling Emission Standard

(i) Description of Standard

During the development of the 2008 Truck Idling Requirements, several engine

manufacturers indicated that NOx aftert reatment devices may reduce NOx idling emissions to some extent, and requested an option to certify engines to a new NOx idling emission standard as an alternativ e to complying with the engine shutdown system requirements. Anot her method suggested by th e manufacturers was utilize other strategies, such as advanced combusti on processes or operational controls such as cylinder deactivation, to reduc e NOx emissions during idling.

To accommodate the engine manufacturers ’ requests, CARB staff developed an optional NOx idling emission standard and test procedure as an alternative to the engine shutdown system requirement. Staff determined that an emission standard of

630 grams of NOx per hour (without also increasing emissions of other criteria pollutants) was equivalent to the emissions of a 5 to 19 kW diesel-fueled off-road APS, and that this standard would provide significant NOx emissions benefit s compared to the average NOx idling emissions from late model HDDEs.

Staff also developed a test procedure to ac count for the varied operation of truck engines at idle. Typically, truck operators el evate the idle speed to provide more power for cab comfort and accessory devices. Higher engine speed also reduces truck vibration when idling and thus provides mo re comfort for the operator during rest periods. The test procedure requires engi ne testing at “curb idle” and at 1100 revolutions per minute (rpm) idle speed, unde r loaded and unloaded c onditions using an engine dynamometer operated under a 2- mode steady-state test cycle.

(ii) Technical Feasib ility of the Optional NO x Idling Emission Standard

In the ISOR, staff acknowl edged that although NOx aftertreat ment devices such as NOx adsorbers or NOx catalysts could be used to reduce NOx emissions from idling engines, these devices generally operate mo st efficiently at exhaust temperatures higher than 200oC, and exhaust temperatures during ex tended idling typically are no higher than 150oC. Several engine manufacturers, however, indicated that suffic ient temperatures could be achieved by using supplemental heat sources in conjunction with NOx

aftertreatment devices. Staff i ndicated in Section V.B of the ISOR that it did not expect manufacturers would certify engines under this compliance option until 2010.

Although several commenters stated that th e optional NOx idling emission standard was not technically feasible by the Januar y 1, 2008 compliance date, since NOx aftertreatment devices were not anticipat ed to be feasible until the year 2010, CARB staff disagreed in the Final St atement of Reasons (FSOR), stating that although it had anticipated in the ISOR that it did not expect this option to be widely available until 2010, it did not believe that the NOx idling emission standard wa s technically infeasible. As discussed above, several engine manufactu rers have indicated that existing NOx

aftertreatment devices demons trate the potential to reduce NOx emissions during idling (if supplemental heat sources are also used). Furthermore, contrary to CARB’s early predictions, manufacturers have certified si gnificantly more 2008 model-year engines to this option than staff previously anticipated.

2. The In-Use Idling ATCM fo r Sleeper-Berth Equipped HDDVs (Amendments to title 13, CCR section 2485)

The 2008 Truck Idling Requirements also am end the existing idling ATCM to include in-use sleeper trucks, whether they are registered in Calif ornia or another state. The idling ATCM in title 13 CCR section 2485 requi res truck operators to manually shut off engines after five minutes of continuous id ling, but previously exempted sleeper-berth equipped trucks when the operator was resting in the sleeper berth and idling the main engine for climate control or to power on- board accessories. The 2008 Truck Idling Requirements removed this exemption fo r sleeper-berth equipped trucks and now

7requires sleeper truck operators to manually shut down the engine after five minutes of continuous idling starting January 1, 2008.

No comments were submitted regarding the tec hnical feasibility of these requirements. It is readily apparent that a sleeper berth truck operator c an readily comply with this requirement by manually shutti ng off the truck’s engine after five minutes of continuous idling.

3. Alternative Technology Requir ements (Amendments to title 13, CCR sections 2485(c)(3), 2404, 2424, and 2425)

Many HDDV operators will likely utilize truck-mounted alternative technologies to supply power for truck cab or sleeper berth c limate control purposes and/or other

on-board accessories that would otherwis e have been generated by the continuous idling of the truck’s main engine. These technologies include internal combustion engine driven APSs and fuel-fired heaters. Currently, the most widely used on-board auxiliary devices on sleeper trucks are APSs powered by small diesel-fueled internal combustion engines equipped wit h generators/alternators to provide climate control, heat to the engine for cold w eather starting, 12-volt DC elec trical power to charge the batteries and 110-volt AC power for on-board accessories. These APSs are subject to existing CARB off-road engine emission standards because they are not used to propel

motor vehicles. 3 The vast majority of off-road engines used in APS applications are rated at less than 19 kW (26.03 hp).

A primary consideration in developing the alternative technology emission requirements

was to ensure that the r equirements would not undermine California’s new 2007 on-road HDDE emission standards. Specifically, starting in 2007, new on-road California-certified diesel engines are subject to aftertreatment-based diesel particulate matter (PM) standards that are more stringent than the recently adopted Tier 4 off-road PM standards applicable to diesel-fueled APSs. 4 Therefore, unless safeguards were incorporated into the alternative technol ogy requirements, PM emissions from

diesel-fueled APSs would overwhelm the PM emissions benefits of the 2008 Truck Idling Requirements. CARB accordingly established APS emission requirements that are dependent on the model year of the truck engine utiliz ing the APS. Alternative technologies that comply with the performa nce requirements may be used on both new and in-use HDDEs and HDDVs. The require ments apply starting J anuary 1, 2008 to all

diesel-fueled commercial mo tor vehicles with a GVWR greater than 10,000 pounds when operated in California.

3 In this request the term “off-road” is used intrerchangeably with the federal term “nonroad.”

4 At a public hearing on December 9, 2004, CARB appr oved amendments to its off-road CI regulations to harmonize ARB’s standards and test procedures with the federal standards and test procedures specified in its Tier 4 rulemaking (40 CFR Part 89) and the subsequent Omnibus Technical Amendments (70 Fed.Reg. 40240 (July 13, 2005)), while still maintain ing the emission benefits of the current California program. The ARB Tier 4 exhaust emission standards for new off-road CI engines rated less than 19 kW are implemented starting with the 2008 model year.

8a. General Emission Requirements for APSs

Internal combustion engines used in APSs must be certified to the California or federal non-road emission standards and test procedures applicable to their fuel type and horsepower category of the engines.

b. Specific Requirements for Diesel-Fueled APSs

(i) 2007 and Subsequent Model-Year Trucks

Diesel-fueled APSs install ed on trucks equipped with 2007 and subsequent model year HDDEs must comply with the California or federal non-road emission standards and test procedures applicable to the horsepower cat egory of the engines and additionally must

either:

• route their exhaust into the truck’ s exhaust system so that the APS’s PM emissions are controlled by the truck’s PM trap; or

• be equipped with a level 3 verified PM control strategy (i.e., achieve an 85 percent PM reduction efficiency). 5 CARB’s verification procedures involve a thorough evaluation of the em ission reduction capability of a trap and of its durability. The verification process ens ures that the emission reductions achieved by the trap are both real and dur able, and that producti on units in the field are achieving emission reductions that are consistent with t he verification. It also requires the manufacturer to warrant that its PM trap is free from defects in design, materials, workmanship, and t hat operation of the trap achieves the emission reduction levels it was verified to; or

• subject to advance Executive Officer approval, use other procedures to demonstrate an equivalent level of emissi ons compliance (compared to a level 3 verified PM control strategy).

(ii) 2006 and Older Model-Year Trucks

Diesel-fueled APS engines installed on trucks equipped with 2006 or older model-year diesel engines need only comply with the California or federal non-road emission standards and test procedures applicable to the horsepower categor y of the engines. This requirement is in effect subsumed by the requirement described above for all internal combustion engines used in APSs. 2006 and older model year HDDEs are not equipped with PM aftertreatment systems and therefore PM emissions from a certified diesel APSs will not be greater than the PM emissions from idling main engines.

(iii) Technical Feasibility of Diesel-Fueled APS Emission Requirements

5 The PM trap verification procedure and in particular, the level 3 verification level, are specified in title 13,

CCR sections 2700 to 2710.

9CARB did not receive any comments questioning the technical feasib ility of routing a diesel APS’ exhaust upstream of the main engine’s diesel parti culate trap. It did receive two comments questioning whether this compliance option might jeopardize the warranty provided by the main engine’s manufacturer (FSOR, Comments 35 and 36 and Agency response thereto, pp. 38-39).

The level 3 verified PM control strategy option is technically feasible within the specified timeframes, and particulate filters for diesel fueled APSs should be available before the implementation date of the 2008 Truck Idli ng Requirements. In fact, Cummins and Caterpillar were developing integrated main engine/APS systems that they expected to offer as factory options in 2006. During t he development of CARB’s Tier 4 off-road emission standards, aftertreatment technology was not commercially available for small diesel engines, such as the engines powering diesel APSs, and staff therefore could not specifically elaborate on the feasibility of applying PM afte rtreatment to these smaller diesel engines. However, there is no inheren t PM emission characteristic that would prevent a manufacturer from applying a PM f ilter system used on larger diesel engines to smaller diesel engines. The lower exhau st temperatures from smaller engines will likely require an active regenerat ion strategy to prevent the PM filter from clogging, but PM aftertreatment strategies being dev eloped for 2007 and newer on-road HDDEs will also employ active regeneration strategies to prevent the possibility of PM filter failure under certain low exhaust temperature operations . Therefore, on-road diesel PM filter technologies that will be deployed on HDDEs beginning in 2007 can be applied to diesel fueled APSs with only modifications to active regeneration strategies and to

accommodate the smaller PM filter sizes. Furthermore, PM traps and regeneration strategies designed for use in transport re frigeration units (TRUs) and TRU generator sets can be readily adapted to APSs, since t hese applications use the same categories of small diesel engines t hat are operated under similar engine speeds and loads.

Moreover, if in fact no level 3 verified PM control strategy is available in 2008, truck operators may elect to simply route the APS’ exhaust upstream of the truck’s particulate trap or to utilize other available cab comfor t technologies, such as battery electric APS and thermal energy storage systems.

c. APS Labeling Requirements

A truck equipped with an APS that complies wit h the emission requirements outlined above must display a label on its hood area to aid enforcement staff in quickly identifying which diesel engines and tr ucks are equipped with compliant APSs.

10d. Emission Requirements for Fuel-Fired Heaters

Fuel-fired heaters are used to pr ovide heat to truck cabs or sleeper berths and/or to preheat the engine block during cold weathe r. Beginning January 1, 2008, 2007 and subsequent model-year trucks in Californi a may only operate fuel-fired heaters that comply with the requirements specified in California’s second generation Low Emissions Vehicle (LEV II) regulations. 6 The LEV II regulations requ ire fuel-fired heaters to meet

the Ultra Low Emission Vehicle exhaust emi ssion standards for light duty vehicles. However, unlike the LEV II program requirement that limits the oper ation of fuel-fired heaters to ambient temperat ures of 40oF or less, t he alternative technology requirements allow fuel-fired heaters to be operated at any ambi ent temperature. Several manufacturers currently produce f uel-fired heaters for hea vy-duty trucks that meet the proposed requirement.

e. Other Idle Reduction Devices/Strategies

Alternative technologies that do not directly produce emissions, such as battery electric APSs, fuel cell APSs, thermal energy storage devices, or power inverter chargers for use with battery and grid-supplied electricit y are also allowed. Technologies not otherwise specifically identif ied in the 2008 Truck Idling Requirements may also be used, subject to the approval of CARB’s Executive Officer.

(i) Battery Electric APS

Battery electric APSs typically consist of an independent electrically driven heating and air-conditioning system and an inverter to prov ide 120 Volt AC electrical power for on-board accessories, and are capable of providi ng more than ten hours of continuous cab comfort between charges. Depending on the number of batteries installed and alternator capacity, such systems typically r equire two to six hours of charging time. Commercially available battery systems cost between $4,000 to $10,000 per unit. Examples of commercially available batte ry electric APS systems include Idling Solutions’ Idling Solutions 9000 a nd Bergstrom’s Nite System.

(ii) Fuel Cell APS

Fuel cell APSs offer the potential of s upplying power to heat or cool a cab/sleeper compartment and run on-board el ectrical equipment without producing any associated emissions. However, technical and econom ic issues, such as availability and infrastructure of a suitable fuel, the producti on costs of the units, a nd integration of the units with other on-board truck systems need to be resolved before such systems can become cost-effective for commercial truck operators.

6 The standards are specified in ti tle 13, CCR, section 1961(a)(15) and (d ), or in Part I.E.1.13 of the incorporated “California Exhaust Emission Standards and Test Procedures for 2001 and Subsequent Model Passenger Cars, Light-Duty Tr ucks and Medium-Duty Vehicles.”

11(iii) Cold Storage Systems

Cold storage systems ut ilize the truck’s air conditioning system to store cooling energy when the truck is operated that is retained and later used to cool the sleeper berth when the truck is stopped and the driver is resting. Some aftermarket cold storage systems are currently commercially available and ma y be used in conjunction with a fuel-fired heater to provide both heating an d cooling. An example of a cold storage system that is currently commercially available is Webas to’s BlueCool Truck system. Including installation, this system costs $3, 600 per unit ($4,600 including a heater).

(iv) On-Shore Electrical Power

The development of an electrical power infr astructure at truck stops and other locations is another option to reduce engine idling emissi ons. On-shore electrical power involves the electrification of truck parking spaces to provide power for heati ng, cooling and on-board accessories. While it provides signifi cant emissions benefit s at the truck stop

area or the site where it is in stalled, it is not widely avail able. Even if such systems become widely available in the future, tr uck operators located away from such installations may still need an alternative cab comfort technology that is portable with

the truck. There are current ly two methods of using on-s hore electrical power. One method allows the truck to “plug-in” to the electrical power grid to power on-board air conditioning and heating systems, referred to as “on-board power infrastructure.” The other method relies on heating and air condit ioning provided at the location where the infrastructure is installed, referred to as “off-board power infrastructure.”

[1] On-Board Power Infrastructure

This technology provides tru cks with 110-volt AC electrical pow er at truck stops or other

locations to run the air condi tioning, heating and on-board accessories. This requires truck stops to be equipped wit h electrical outlets throughout the parking spaces and trucks need to be equipped or retrofitted with inverter/chargers, electrical power connections and electrically driven heat ing and air conditioning units. The inverter/chargers are used to c harge the truck batteries from grid supplied electricity and

to convert the truck batteri es' 12-volt DC to 120-volt AC power for all on-board accessories. The drawbacks of this system incl ude the high initial infrastructure cost, cost for equipment add-ons to trucks, and its availability, which is limited to where the

infrastructure is installed.

[2] Off-Board Power Infrastructure

IdleAire Technologies recently introduced an off-board infrastr ucture system that provides 110-volt AC electrical power for on-board accessories, an externally installed heating and air conditioning unit, and hook-u ps for basic telephone, internet and television (access to cable/satellite) services at each truck parking space. The unit is connected to the truck through a console installed to the truck window using a template

insert. The console contains all the nece ssary connections and controls, including a

12card reader for the billing syst em. Basic services current ly cost about $1.25 to $1.50 per hour. The drawbacks are the high infrastr ucture installation and maintenance costs and availability, which is lim ited to where the infrastruc ture is installed.

4. Labeling Requirements (Amendments to title 13, CCR sections 1956.8, 2404, 2424, and 2425)

Because the 2008 Truck Idling Requirements a llow diesel-powered trucks certified to the optional NOx idling emission standard to idle continuously longer than five minutes (except when located within 10 0 feet of a restricted area ), and also allow compliant alternative idling technologies to continually operate (again, except when located within

100 feet of a restricted area), engine manufacturers, original vehicle equipment manufacturers (OEMs), or internal co mbustion engine APS manufacturers, as applicable, are required to produce and affi x standardized permanent labels to the hood

of the truck to assist enforcement staff in clearly and easily identifying those diesel trucks that comply with the 2008 Truck Idling requirements.

For new engines certified to the optional NOx idling emission standard or engines equipped with an integrated engine-APS ex haust system for which the engine manufacturer is responsible, the engine m anufacturer will be responsible for producing the labels and supplying them to the OEM. The OEM is then required to affix the label

to the hood of the truck. Aftermarket manufacturers of internal combustion engine

APSs that meet California r equirements and who in stall APSs on trucks are responsible for producing the label and affixing it to the hood of the truck. If the APS manufacturer does not install the APS, the APS manufacturer must supply t he label to the party that installs the APS (OEM or any other APS insta ller), and that party mu st affix the label.

IV. PREEXISTING CALIFORNIA ON-ROAD HEAVY-DUTY DIESEL EMISSION STANDARDS, TEST PROCEDURES AND VEHICLE LABELING PROVISIONS

FOR WHICH A WAIVER HAS BEEN GR ANTED, AND OFF-ROAD EMISSION

STANDARDS AND TEST PROCEDURES FOR WHICH AN AUTHORIZATION HAS BEEN GRANTED (OR IS PENDING)

A. On-Road Heavy-Duty Dies el Emission Standards

On August 26, 2005, the EPA Administrator gr anted California a waiver of preemption pursuant to section 209(b) of the CAA for CARB’s adopt ion of amendments to its heavy-duty diesel engine standards for 2007 and subsequent model-year vehicles and engines and related test procedures, including the not-to-exceed (NTE) and supplemental steady-state tests (supplem ental test procedures) to determine compliance with applicable standards. 7 These standards apply to all heavy-duty diesel engines, except those in urban buses, and align California’s standards and test

7 70 Fed.Reg. 50322 (August 26, 2005).

13procedures with existing feder al standards and test procedures applicable to 2007 and subsequent model-year heavy-duty diesel engines and vehicles. 8 CARB’s amendments Increased the stringency of the California emission st andards for NOx, non-methane hydrocarbons (NMHC) and PM compared to the previously applicable California standards. The PM standard applic able to 2007 and subsequent model-y ear heavy-duty diesel engines is 0.01 grams per brak e horsepower-hour (g /bhp-hr).

B. Small Off-Road Engine Emission Standards

As previously mentioned, most off-road engi nes used in APS applications are rated at less than 19 kW (26.03 hp). Therefore, the following discussion will be limited to authorizations either gr anted or being sought for engines less than 19 kW.

1. Utility, Garden and Lawn Engi ne/Small Off-Road E ngine Standards

Since the enactment of the Ca lifornia Clean Air Act in 1988 – which authorizes CARB to adopt emission standards and other regulations for off-road vehicles and nonvehicular engine categories – CARB has adopted numerous regulations applicable to off-road engines rated at or less than 19 kW.

CARB first adopted standards and test procedur es applicable to utility and lawn and garden engines (ULGEs Rule, subsequently r enamed in a later rulemaking as the “Small Off-Road Engine (SORE) Regulation” 9 ) on March 20, 1992, which OAL approved on May 1, 1992. In April 1993, in response to a petition from industry, CARB amended these regulations to delay in itial implementation until January 1, 1995. CARB requested that EPA grant authorization for the SORE regulation as requi red by section 209(e)(2) of

the federal CAA. 10 The Administrator granted authoriz ation to CARB on July 5, 1995. 11

The authorized SORE regulat ion established exhaust emission standards for all gasoline, diesel, and other f ueled spark-ignited (SI) and compression-ignited (CI) engines and equipment under 25hp (19kW) t hat were found not to be otherwise

8 See p. 3, Decision Document accompanying waiver determination in 70 Fed.Reg. 50322 (August 26, 2005)

9 For purposes of consistency, the regulation will be referred to as the SORE regulation.

10 Section 209(e) provides in pertinent part: (1) 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 of the following new nonroad engines or nonroad vehicles subject to regulation under this Act– (A) New engines which are used in construction equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 hp. (B) New locomotives or new engines used in locomotives

* * * * * (2) (A) In the case of any nonroad vehicles or engines other than those referred to in subparagraph [(e)(1)], the Administrator sha ll, after notice and public hearing, authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles and engines if [certain specified conditions are met].

See infra.

11 60 Fed.Reg. 37440 (July 20, 1995).

14preempted. The regulation established two tiers of exhaust emission standards for new engines. Tier I standards applied to 1995 through 1998 model-year engines, while the Tier II standards applied to 1999 and newer engines. Emission standards were established for hydrocarbon (HC), NOx, ca rbon monoxide (CO), and PM, the last of which applied only to diesel-powered and tw o-stroke engines. T he SORE regulation also included test procedures and prov isions for warranty and production engine compliance programs. The SORE regulation applied to two ca tegories of small off-road engines – handheld and non-handheld. Engines in handheld applications, such as chainsaws and trimmers, were required to comply with less stringent emission standards than non-hand-held eq uipment and engines.

CARB amended the SORE regulation in 1994, 1995, and 1996 to clarify certification and implementation procedures of the Tier 1 standards, ex empt military tactical equipment, and relax the Tier 1 CO emissi on standard on class 1 and 2 engines and the HC and NOx standards for engines used in cert ain “wintertime” equipment. CARB requested and received EPA’s confirmation that these amendments fe ll within the scope of the initially granted SORE aut horization on November 9, 2000. 12

2. 1998 SORE Amendments

In 1998, CARB amended the SORE regulation to apply to all engines rated less than 25 hp that are used in off-r oad applications (i.e., not ju st utility and lawn and garden engines), including specialty v ehicles and golf cart engines; revised the regulation to be based on engine displacement instead of whet her the engine is used in a handheld or non-handheld application; and dela yed implementation of the 1999 Tier 2 standards for at least one year. For CI engines, the B oard extended applicati on of the authorized Tier 1 emission standards one year and adopted the new emission standards for new engines under 19 kW, consistent with the “Compression-Igni tion Engine Statement of Principles” (SOP) jointly entered into by CARB, EPA, and engine manufacturers in August 1996. The adopted emission standards were to be phased in, starting with the 2000 model year. 13 Finally, CARB adopted new durability requirements that were also to be phased in for new engines starting in the 2000 model year.

EPA subsequently determined that, except for the above-mentioned durability requirements, California’s 1998 amendments to the SORE regulati on were within the scope of the previously granted 1995 authorization. 14 EPA issued CARB a new authorization for the durability requirements on November 21, 2003. 15

12 65 Fed.Reg. 69763 (November 20, 2000).

13 These emission standards were su bsequently also adopted by EPA in its final rule for “Control of

Emissions of Air Pollution from Nonroad Diesel Engines,” 62 Fed.Reg. 200 (January 2, 1997).

14 65 Fed.Reg. 69767 (November 20, 2000).

15 68 Fed.Reg. 65702 (November 21, 2003).

153. 2004 SI SORE Amendments

In 2004, CARB amended the exhaust em ission standards and associated test procedures for SI small off-road engines , and adopted evaporative emission standards and associated test procedures for SI small o ff-road engines rated at or below 19 kW or equipment utilizing such engines. These amendments: aligne d CARB’s HC + NOx exhaust emission standards with federal exhaust standards for engines less than 50 cubic centimeters (cc) starting with the 2005 model year; extended the exhaust emission standards for 50 to 65 cc engines up to 80 cc engines, beginning in the 2005 model year; adopted catalyst-based standards for engines between 80 to less than 225 cc and 225 cc and larger engines; and more cl osely aligned CARB and federal exhaust emission test procedures. These amendments also established, for the first time, permeation and diurnal evaporative emission standards and associated test procedures for small off-road engines and fuel tan ks on equipment powered by small off-road engines beginning in the 2007 model year. EPA issued CARB a full authorization for

the 2004 SI SORE amendment s on December 15, 2006. 16

4. 2000 and 2004 Off-Road CI Amendments

On January 28, 2000, CARB adopted amendment s to regulations applicable to 2000 and subsequent model-year off-road CI engines. These amendments did not substantively amend the Tier I and Tier 2 requirements applicable to new CI engines rated at or less than 19 kW, but merely mov ed the regulations for new CI engines less than 19 kW from the SORE regulation (tit le 13 CCR section 2400 et seq.) to a new regulatory section in title 13 CCR section 2400 et seq. that includes all off-road CI engines. With this change all off-road CI e ngine categories are contained in the same regulatory section, which conforms to t he federal regulatory program. The 2000 amendments therefore recodify the emi ssion standards adopted in 1998 for CI SORE engines.

At a public hearing on December 9, 2004, CA RB approved amendments to its off-road CI regulations to harmonize CARB’s st andards and test procedures with the federal standards and test procedures specified in it s Tier 4 rulemaking (40 CFR Part 89) and the subsequent Omnibus Techni cal Amendments (70 Fed.R eg. 40240 (July 13, 2005)), while still maintaining the emission benefits of the current Califor nia program. CARB

Tier 4 exhaust emission standards for new off-road CI engines rated less than 19 kW are scheduled to be implemented starting with the 2008 model year. California’s OAL approved the 2004 amendments on December 7, 2005, and CARB will soon file a request for authorization that covers both the 2000 and 2004 amendments to the standards for new off-road CI engines.

16 71 Fed.Reg. 75536 (December 15, 2006).

16V. WAIVER AND AUTHORIZATI ON CRITERIA AND PRINCIPLES

A. Criteria for Granting Waivers of Preemption Under CAA Section 209(b)

and Confirmations that Amendments are Within the Scope of Previous

Waivers or Constitute Other Conditions Precedent That Do Not

Necessitate an Additional Waiver Action

Section 209(a) of the CAA provides:

No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the c ontrol of emissions from new motor vehicles or any new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.

Section 209(b) of the CAA sets forth the mec hanism for granting California 17 a waiver from the general preemp tion of section 209(a). Under se ction 209(b), the Administrator must grant a waiver to California if the st ate has determined that it s standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards, unless the Administrator finds that (1) the state’s protectiveness determination is arbitrary and capricious, (2 ) California does not need separate state standards to meet compelling and extraordinary conditions, or (3) the state’s standards and accompanying enforcement pr ocedures are not consistent with section 202(a) of

the CAA.

In considering whether to grant waivers fo r accompanying enforcement procedures tied to standards for which a waiver has already been granted, the Administrator has long held that he will only address questions as to (1) whether the enforcement procedures are so lax that they threaten the validity of California’s determination that its standards are as protective of public health and we lfare as applicable federal standards and, (2) whether the enforcement procedures are consistent with section 202(a). 18

The Administrator has applied a similar analysis in findi ng that amendments to a standard or regulation are within the scope of a previously granted waiver:

If California acts to amend a previ ously waived standard or accompanying enforcement procedure, the amendments may be considered within the scope of a previous previously granted waiver provided that they (a) do

17 CAA section 209(b) provides for granting a waiver to “any State that has adopted standards (other than crankcase emission standards) for the control of emi ssions from new motor vehicles or new motor vehicle engines prior to March 30, 1966.” California is the on ly State that meets this eligibility criterion for granting waivers. See, e.g. , S. Rep. No. 90-403, at 632 (1967) and Motor and Equipment Manufacturers Association v. EPA (MEMA I) (D.C. Cir. 1979) 627 F.2d 1095, 1101 fn. 1.

18 See MEMA I, supra , 627 F.2d. at 1111, 1113.

17not undermine California’s determination that its standards are, in the aggregate, as protective of public heal th and welfare as applicable Federal standards; (b) do not affect the consistency of Ca lifornia’s requirements with section 202(a) of t he [CAA]; and raise no new issues affecting EPA’s previous waiver determination. 19

In addition, the Administrator has stated:

After California has received a waiver of Federal preemption for its standards and enforcement procedures fo r a class of vehicles, it may adopt other conditions precedent to initial retail sale, titling or registration of the subject class of vehicles wit hout the necessity of receiving an additional waiver of preemption. 20

B. Criteria for Granting Authorizat ions Under CAA Section 209(e) and

Confirmations that Amendments are Within the Scope of Previously

Granted Authorizations

Section 209(e)(2) of the CAA sets forth t he protocol for the Administrator to grant

California authorization to adopt and enforce standards and ot her requirements relating to controlling emissions from new and in-use nonroad engines that are not conclusively preempted by section 209(e)(1) – new engines less than 175 hp used in farm and construction equipment and vehicles and new engines used in new locomotives and locomotive engines. Closely tracking the new motor vehicle waiver process, section 209(e)(2) directs the Administrator to grant the authorization to California for standards and requirements for all other nonroad engines if California det ermines that the state’s standards will be, in the aggregate , at least as protective of public health and welfare as applicable federal standards, unl ess he finds that: (1) the protectiveness finding of the state is arbitrary and capricious; (2) Calif ornia does not need separate state standards to meet compelling and ex traordinary conditions; or (3 ) the state standards and accompanying enforcement pr ocedures are not consistent with CAA section 209.

The criteria for reviewing a California request for authorizat ion under section 209(e)(2) are nearly identical to the criteria that t he Administrator must consider under section 209(b). In light of these almo st identical protocols, EPA has confirmed that it would similarly interpret sections 209(b) and (e) where the language is similar. 21

19 Decision Document accompanying within-the-scope determination in 69 Fed.Reg. 59920 (October 6, 2004), at pp. 2-3; see also Decision Document accompanying wi thin-the-scope determination in 51 Fed.Reg. 12391 (April 10, 1986), at p. 2 and 46 Fed.Reg. 36742 (July 15, 1981).

20 Decision Document accompanying within-the-scope determination in 69 Fed.Reg. 59920 (October 6, 2004), at p. 2, citing 43 Fed.Reg. 36679 (August 18, 1978), 54 Fed.Reg. 13427 (April 3, 1989), and 55 Fed.Reg. 28824 (July 13, 1990).

21 Air Pollution Control; Preemption of State Regulatio n for Nonroad Engine and Vehicle Standards (Final 209(e) Rule) , 59 Fed.Reg. 36969, 36981 (July 20, 1994); see also Utility Authorization, Decision Document, at p. 11; see also 65 Fed.Reg. 69763, 69763-69764 (November 20, 2000).

18One deviation in language is that CAA section 209(e)(2) r equires the Administrator to consider not only consistency with CAA se ction 202(a) – as required under section 209(b)(1)(C) – but also other subs ections of section 209. In its 209(e) Final Rule, EPA interpreted this provision to require t hat California’s standards and accompanying enforcement provisions must also be cons istent with sections 209(a) and 209(e)(1). 22

As the Administrator stated in a recent authorization:

In [o]rder to be consistent with se ction 209(a), California’s [nonroad] standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engi nes. Secondly, California’s nonroad standards and enforcement procedures must be consistent with section 209(e)(1), which identifies the ca tegories permanently preempted from state regulation. California’ s nonroad standards and enforcement procedures would be considered incons istent with section 209 if they applied to the categories of engines or vehicles identified and preempted from State regulation in section 209(e)(1). Finally, and most importantly in terms of application to nonroad [aut horization requests ], California’s

nonroad standards and enforce ment procedures must be consistent with section 209(b)(1)(C). EPA will revi ew nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests. Under section 209(b )(1)(C), the Admini strator shall not grant California’s motor vehicle waiv er if she finds that California standards and accompanying enforcement procedures are not consistent with section 202(a )” of the [CAA]. 23

The Administrator has applied a similar analysis in findi ng that amendments to a nonroad standard or regulati on are within the scope of a previously granted

authorization.” 24

C. Principles Followed in Granting CAA Section 209(b) Waivers and 209(e)

Authorizations

1. The Burden Is on Those Who Challenge the Request

In considering a waiver, authorization, or a within-the-scope request, California’s regulations and protectiveness determination ar e presumed to satisfy the criteria for granting a waiver or author ization, and the burden to s how otherwise is on those persons challenging the waiver request. 25 As held by the court in MEMA I and long followed by EPA:

The language of the stat ute and its legislative hi story indicate that California’s regulations and California’s determination that they comply

22 59 Fed.Reg. 36969, 36983 (July 20, 1994).

23 65 Fed.Reg. 69763, 69764 fn. 5 (November 20, 2000).

24 Id., 69763-69764

. 25 MEMA I , 627 F.2d 1095, 1121

.

19with the statute, when pr esented to the Administrator are presumed to satisfy the waiver requirements and that the burden of proving otherwise is on whoever attacks them. [It is they who] bear the burden of persuading

the Administrator that the waiver request should be denied. 26

Given the identical structure and near ident ical language of sections 209(b) and 209(e)(2), the opponents of an authorization request should bear a similar burden of proof when arguing that authorization s hould be denied. EPA has so stated in all

off-road authorization decisions to date. 27

2. The Scope of the Waiver/Author ization Hearing Should Be Limited

As indicated above, the scope of the Administrator’s inquiry in determining whether to deny a waiver or authorization request is limited by the express terms of CAA sections 209(b)(1) and (e)(1). Once California determines that its standards are, in the aggregate, at least as protec tive of public health and welfare as applicable federal standards, the Administrator must grant the waiver or aut horization unless one of the three specified findings can be made.

This reading of the statute is consistent with the decision in MEMA I and prior EPA waiver decisions interpreting CAA section 209(b), which hold that the review of California’s decision to adopt separate standards is a narrow one. 28 In granting the waiver for the OBD II regulation in 1996, Ad ministrator Carol Browner concluded that she must grant a waiver if she could not find sufficient evidence in the record to support any of the above listed crit eria that would dictate not granting the waiver. 29 Much earlier

Administrator William D. Ruckleshaus stated:

The law makes it clear that the waiv er request cannot be denied unless the specific findings designated in the stat ute can properly be made. The issue of whether a proposed California requirement is likely to result in only marginal improvement in air quality not commensur ate with its cost or is otherwise an arguably unwise exercise of regulatory pow er is not legally pertinent to my

decision under section 209 . . . . 30

26 Id .; See also Decision Document accompanying OBD II Waiver Determination (61 Fed.Reg. 53371), at p. 15-16.

27 OHRV Authorization , Decision Document, at pp. 16-17; Utility Authorization, Decision Document, at p. 14; 60 Fed.Reg. 48981 (September 21, 1995) ( HDOR Authorization) , Decision Document, at p. 13.

See also Waiver of Federal Preemption California Low-Emission Vehicle Standards , 58 Fed.Reg. 4166 (January 7, 1993) (LEV Waiver) , Decision Document, at p. 21.

28 See 40 Fed.Reg. 23102, 23103 (May 28, 1975).

29 61 Fed.Reg. 53371 (October 11, 1996).

30 36 Fed.Reg. 17158 (August 31, 1971). See also 40 Fed.Reg. 23102, 23104; 58 Fed.Reg. 4166 (January 7, 1993), Decision Document, at p. 20.

203. Deference Must Be Given to California’s Policy Judgments

As indicated in the waiver decisions cit ed above, in granting waivers to California’s motor vehicle program, EPA has routinel y deferred to the policy judgments of

California’s decision-makers. EPA has rec ognized that the int ent of Congress in creating a limited review of California’s det erminations regarding its need for separate

standards was to ensure that the federal gover nment did not second-guess the wisdom of state policy. 31 Administrators have recognized t hat the deference is wide-ranging:

The structure and history of the California waiver provision clearly indicate both a Congressional intent and an EPA pr actice of leaving the decision on ambiguous and controversial matters of public policy to California’s judgment.

* * * * * *

It is worth noting . . . I would feel constrained to approve a California approach to the problem which I might also feel unable to adopt at the federal level in my own capacity as a regulator. The whole approach of

the Clean Air Act is to force the dev elopment of new types of emission control technology where that is needed by compelling the industry to “catch up” to some degree with newly promulgated standards. Such an approach . . . may be attended with co sts, in the shape of a reduced product offering, or price or fuel economy penalties, and by risks that a wider number of vehicle classes may not be able to complete their development work in time. Sinc e a balancing of these risks and costs against the potential benefit s from reduced emissions is a central policy decision for any regulatory agency under the statutory scheme outlined above, I believe I am required to give very substantial deference to California’s judgments on this score. 32

By authorizing California to adopt its own emission standards for nonroad vehicles and engines and by establishing almost identical requirements for EPA review of authorizing requests under section 209(e)(2) as it requires for waiver decisions under section 209(b), Congress unmistakably intended that the EPA accord similar deference to California’s decisions under 209(e)(2). 33

31 40 Fed.Reg. 23102, 23103.

32 40 Fed.Reg. 23102, 23104 (emphasis added). See also 58 Fed.Reg. 4166, Decision Document, at p. 64.

33 See discussion in Engine Manufacturers Association v. U.S. EPA (EMA) , 88 F.3d 1075, 1090 (D.C. Cir. 1996), wherein the court recogn ized California's leadership in emis sion control regulation in both new motor vehicles and new and in-use nonroad engines.

21VI. THE NEW ENGINE REQUIREMENTS

A. The New Engine Requirements Are Akin to an Operational Control on In-Use Vehicles and Accordingly Are Not Preempted By CAA Section 209(a)

The new engine requirements are akin to an in-use operational control of motor vehicles and accordingly are not preempted by CAA section 209(a). CAA section 209(d) provides that California and other states are not precluded fr om controlling, regulating or restricting the “use, operation, or movement of registered or licensed motor vehicles,” and since the states are expr essly authorized to impose thes e categories of controls, California does not need a waiver of pr eemption pursuant to section 209(b).

In the EMA case, EPA and the Court of Appeals for the D.C. Circuit recognized that states are not precluded fr om regulating the extending idling of on-road vehicles:

[A]s the EPA points out, the longs tanding scheme of motor vehicle emissions control has always permi tted the states to adopt in-use regulations – such as carpool lanes, restrictions on car use in downtown areas, and programs to control extended idling of vehicles – that are expressly intended to control em issions. ... Section 209(d) does, therefore, protect the power of the states to adopt such in-use regulations. 34

As discussed in Section VII., infra , CARB’s in-use idling ATCM that requires operators of commercial heavy-duty diesel vehicles – including those with 2008 and subsequent model engines – to manually shut off engines after five minutes of continuous idling clearly constitutes an in-use operational control under section 209(d) that is not preempted by section 209(a). EPA itself utilized this reasoni ng in approving Texas’ SIP revision that incorporated idling li mits on vehicles over 14,000 pounds. 35 Texas’ measure is analogous to ARB’s new engine requi rements in that it prohibits extended idling beyond five minutes when the vehicle is not in motion, 36 and EPA stated it was approving the measure in part because it was consistent with CARB’s 2008 truck idling regulation 37 ; EPA also stated that the Texas measure “does not alter the relationship or the distribution of power and responsibilit ies established in the Clean Air Act.” 38

The new engine requirement s differ from the in-use idling ATCM in that they place the compliance burden of shutting off the engine onto the engine computers rather than the vehicle operators, but this is a distinct ion without significance. The new engine requirements essentially present a more te chnically advanced means of enforcing a vehicular anti-idling measure of the type that CAA section 209(d) explicitly authorizes

34 EMA

, supra, 88 F.3d 1075, 1094. Emphasis supplied.

35 70 Fed. Reg. 18308 (April 11, 2005).

36 Id . at 18309.

37 Ibid

. 38 Id . at 18310.

22states to adopt and enforce. CARB is aw are that the new engi ne measures could be alleged to violate the principles set forth in Allway Taxi, Inc. v. City of New York 39 and therefore be preempted by CAA section 209(a) because the measures effectively regulate the design of new engines and pl ace the burden of compliance on engine manufacturers, but this allegation disregards the findings in the rulemaking record that engine shutdown systems are software- based controls that have been and are presently available as standar d features in most commercially available on-road heavy-duty engines, so that nearly all engines already incorporate all the software and hardware needed to comply wit h the new engine requirements

. 40 Furthermore, the new engine requirements apply to either engine manufacturers or original equipment manufacturers, but the nature of the heavy-duty diesel v ehicle marketplace virtually ensures that heavy-duty vehicle manufacture rs rather than engine manufacturers will be primarily responsible for complying with the new engine requirements (i.e., vehicle manufacturers know which applications will be powered by any given engine, so they can order the applicable engine fr om the engine manufacturers). This is consistent with CARB staff’s findings that engine manufacturers (including Detroit Diesel Corporation, Cummins, and Caterpillar) presently make engine shutdown systems available as standard features, but most fleet owners and operators do not activate such engine shutdown systems. These factors suffi ciently demonstrate t hat the new engine requirements avoid the concerns articulated by the Allway Taxi court in that they do not require changes to or redes ign of the engine, and thus do not place an impermissible

burden on the manufacturer to in corporate new changes or des igns on future engines. The new engine requirements are consequently not subject to any preemption under section 209(a).

CARB therefore requests that EPA confirm t hat the new engine requirements are akin to in-use operational controls of motor v ehicles, and accordingly are not preempted by CAA section 209(a) and are enf orceable by California without further action by the

Administrator.

B. Alternatively, the New Engine Requirements Are “Other Conditions

Precedent” to Initial Sale , Titling Or Registration that Fall Within the Scope of the Waiver Of Preempti on Issued for California’s 2007 and Newer Heavy-Duty Diesel Engine Standards

The new engine requirements provide manu facturers with two compliance options – either install a system that automatically shuts down an engine after five minutes of continuous idling, or certify the engine to an optional NOx idling standard of 30 grams per hour. These requirement s constitute neither a standard nor an accompanying enforcement procedure because t he primary automatic shut-down requirement does not pertain to a manufacturer’s ability to ce rtify and produce engines that comply with applicable emission standards. 41 They are instead a condition precedent to the initial

39 340 F.Supp. 1120 (S.D.N.Y) aff’d 468 F.2d 624 (2d Cir. 1972).

40 ISOR Section V.A. To date, CARB has certifi ed 46 2008 model year HDDE engine families. See

section VI.C.2 of this document.

41 See 54 Fed.Reg. 13427 (April 3, 1989) and 43 Fed.Reg. 36679 (August 18, 1978).

23retail sale of new engines and vehicles in Ca lifornia; since California has received a waiver of preemption for its standar ds and enforcement standards for 2008 and subsequent heavy-duty diesel engines, no further waiver action is necessary for the new engine requirements.

1. The New Engine Requirements Are Not Standards Relating to the

Control of Emissions

In Engine Manufacturers Ass’n. v. South Coast Air Quality Management District , 541 U.S. 246 (2004), the U.S. Supreme Court inte rpreted the phrase “standard relating to

the control of emissions from new motor v ehicles or new motor vehicle engines” in CAA section 209(a) as describing a requirement th at a vehicle or engine “not emit more than a certain amount of a given pollutant,” be “equipped with a certain type of pollution-control device,” or “have some other design feature relat ed to the control of

emissions.” 42 The Court noted this interpretation was consistent with the use of the term “standard” throughout Title II of the CAA “to denote requirements such as

numerical emission levels wit h which vehicles or engines must comply . . . or emission-control technology with which they must be equipped, e.g. [section 202(a)(6), which requires the Administrator to promul gate regulations requiring that new light-duty motor vehicles be equipped with onboard vapor recovery systems].” 43

a. The Primary Compliance Option for the New Engine R equirements Neither Limits Levels of Pollutants Nor Require s Engines to Incorporate Specified Pollution Control Devices or Design F eatures Related to the Control of

Emissions

The primary compliance option of the new engine requirements requires new 2008 and later model-year heavy-duty diesel engines to be equipped with idling shutdown systems. This option overlays the previ ously adopted and waived emission standards and other requirements applicable to the cert ification of such engines, but does not independently establish numer ical limits on the emissions from those engines. The primary compliance option also does not require that new heavy-duty diesel engines be equipped with polluti on control devices or incorporate design features

related to the control of emissions. An engine shutdown system shuts off the engine after five minutes of continuous idling, but does not otherwise reduce or control engine or vehicle emissions. In fact, if an engine shutdown system was to catastrophically fail, the engine would likely still be abl e to demonstrate compliance with current certification and in-use standards because, as previ ously mentioned, compliance with those

standards is determined in accordance with te st procedures that do not include extended operation at idling m odes. It is notable that an engine shutdown system does not even fall within the definition of an “emission related part” as defined in EPA’s aftermarket program. 44

42 Id. at 253.

43 Id.

44 40 CFR section 85.2102 and 45 Fed.Reg. 78448, 7 8450 (Nov. 25, 1980) (F inal Rule for EPA’s voluntary aftermarket part self-certi fication program that limits eligibility to parts affecting emissions; EPA

24b. The Optional NOx Idlin g Standard Does Not Constitute an Emission Standard Requiring a Waiver of Preemption

The new engine requirements also provide m anufacturers the option of certifying new engines to an optional NOx idling emission standard and accompanying test procedure. Although this compliance option might initia lly appear to be a “standard relating to the

control of emissions from new motor vehicl es or new motor vehicle engines” because it specifies a quantified limit of NO x emissions as measured over a specific test cycle, it is important to note that this secondary option was onl y proposed in conjunction with a primary compliance option that is clearly both technically feasible and cost effective (see Section III.B.1.a.(iv) above). Moreover, because manufacturers are not compelled to certify engines to the optiona l NOx standard but only do so on a voluntary basis, this compliance option cannot be construed as a mandated emissions standard relating to

the control of emissions fr om new motor vehicle engines. 45

2. The New Engine Requirements Are Not Accompanying Enforcement

Procedures

Neither the primary nor the optional complianc e options of the new engine requirements are “accompanying enforcement procedures” because neither establishes criteria by

which CARB will determine whether 2008 and newer HDDEs in trucks with a GVWR greater than 14,000 pounds comply with the existing, previously waived standards applicable to those engines. 46 As discussed above, t he existing 2007 and subsequent model-year HDDE standards do not specify quantifiable limits on emissions generated during operational modes involving extended idling over five continuous minutes; therefore, ARB cannot use ei ther option to determine if a new 2008 or newer engine complies with non-existent criteria.

explains that only parts, “that could fail in a manne r that would cause a vehicle to exceed applicable emission standards ... should be eligible for certif ication.”) Under this cr iterion, an engine shutdown system would not be a system affect ing emissions since if it catastr ophically failed, the engine would still likely be able to demonstrate compliance with its certification and in-use standards because compliance

with those standards is determined in accordance with test procedures that do not include operations at extended idling.

45 See Motor and Equipment Mfrs. Ass’n, Inc. v. Environmental Protection Agency (MEMA II) , 627 F.2d 1128, 1132 (D.C. Cir. 1979) (a regulatory compliance option constitutes a mandate only if the regulation does not specify another compliance option.)

46 MEMA I, supra , 627 F.2d 1095, 1111-1113, American Automobile Manufacturers Association v. Cahill (2nd Cir. (N.Y.) 1998) 152 F.3d 196, 200.

253. Since the New Engine Require ments are Neither Standards nor Accompanying Enforcement Procedures, They Must Constitute “Other

Conditions Precedent” That do not Necessitate an Additional Waiver

Action

Since the new engine requirements constitu te neither standards nor accompanying enforcement procedures, they must fall within the remainin g “catch-all” category of restrictions in CAA section 209(a) – other requirements relating to the control of emissions that are imposed as a “condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.” As discussed in Section V.A. above, once EPA has granted a waiver for a class of vehicles, California may adopt other conditions prec edent without the need for additional waiver action. EPA has granted CARB a waiver of federal preemption for emission standards and associated test procedures applicable to the categories of engines subject to the new engine requirements of the 2008 truck idling requirements, and the new engine requirements are neither new motor vehi cle emission standards nor accompanying enforcement procedures. Accordingly, CARB requests EPA’s confirmation that the previous section 209(b) waiver issued fo r CARB’s 2007 and subsequent model-year HDDE emission standards and test procedures relieves CARB of the need to

demonstrate that the s pecifications independently meet t he waiver criter ia, and that the new engine requirements may be enforced in California without further action by the

Administrator.

C. Should EPA Determine that the Ne w Engine Requirements Constitute “Emission Standards Relating to the Control of Emissions from New Motor Vehicle Engines,” Such Requi rements Fall Within the Scope of Previous Waivers of Preemption

If EPA declines to accept either of CARB’s preceding characterizations of the new engine requirements, CARB then requests t hat EPA confirm that the requirements fall within the scope of the waiver of pr eemption published on August 26, 2005 for

California’s amendments to the 2007 HDDE standards and related test procedures. 47

In adopting the 2008 Truck Idling Requirem ents in Resolution 05-55, the Board expressly found that the require ments fell within the scope of previous waivers in that

the amendments do not undermine the Board’s previous determinations that its emission standards, in the aggregate, are at least as protective of public health and welfare as comparable federal standards, do not affect the consistency of California’s requirements with section 202(a) of the C AA, and raise no new issues affecting the Administrator’s previous waiver determinations. (Reference 5, Resolution 05-55, p. 9). The new engine requirements accordingly fall within the scope of the waiver for

amendments to CARB’s 2007 HDDE standards and accompanying test procedures. Application of each of t he scope-of-the-waiver criteria is discussed below.

47 70 Fed.Reg. 50322 (August 26, 2005).

261. The New Engine Requirement s Do Not Undermine California’s Protectiveness Determination Regard ing its 2007 HDDE Standards and

Test Procedures

The 2008 Truck Idling Requirements do not undermine the Board’s previous

determinations that the new motor vehicl e engine emission standards established by the amendments to its heavy-duty diesel engine standards for 2007 and subsequent model-year vehicles and engines and related te st procedures, are, in the aggregate, at least as protective of public health and we lfare as applicable federal standards. The Board based its previous protectivene ss determinations upon a comparison of the amended standards and test procedur es to the applicable feder al standards. This comparison indicated that CARB’s am endments would make California’s emission standards and test procedures virtually identical to the federal requirements. In granting California a waiver of preemption fo r the 2007 HDDE amendment s, the Assistant

Administrator of EPA stated that he could not find that “CARB’s de termination, that its 2007 California Heavy-duty Diesel Engine Standards are, in the aggregate, at least as protective of public health and welf are, is arbitrary and capricious.” 48 The new engine requirements at issue in this request in no way reduce the stringency of either the underlying exhaust emission standards or t he associated test procedures; instead EPA may find that they impose additional requi rements that are not reflected in EPA’s regulations.

2. The New Engine Requirements Do Not Affect the Consistency of CARB’s Heavy-Duty Engine Requireme nts with CAA Section 202(a)

The Administrator has stated that California’s standar ds and accompanying test procedures are inconsistent wit h section 202(a) if: (1) there is inadequate lead time to implement the new procedures, giving appropr iate consideration to the cost of compliance within the applicable time frame, or (2) the federal and California test procedures impose inconsistent certification requirements so as to make manufacturers

unable to meet both sets of requirements with the same vehicle. 49

a. Technical Feasibility of the New Engine Requirements

The CARB staff set forth its bases for dete rmining that the engine shutdown system and the optional NOx idling standard compliance options are technically feasible in the ISOR

and the FSOR. Sections III.B.1.a. and b. of this document provide a brief summary of the compliance options that staff believes engine and origin al equipment manufacturers will likely utilize to comply with these options.

48 70 Fed.Reg. 50322 (August 26, 2005). See also Decision Document accompanying 2007 HDDE Waiver Determination, at pp. 7-8.

49 See, e.g. , 46 Fed.Reg. 26371, 26371 (May 12, 1981). Ev en where there is incompatibility between the California and federal test procedures, EPA has granted a waiv er under circumst ances where EPA accepts a demonstration of federal compliance based on California test results, thus obviating the need for two separate tests. (43 Fed.Reg. 1829, 1830 (January 12, 1978); 40 Fed.Reg. 30311, 30314 (July 18, 1975).)

27(i) Engine Shutdown Compliance Option

The technology needed to comply with the new engine shutdown system option presently exists, and in fact has been widely available as a standar d feature in most commercially available on-road heavy-duty engines. Engine manufacturers including Detroit Diesel Corporation, Cummins, and Cate rpillar presently build engine shutdown systems into their engines’ electronic control software and make those engine shutdown systems available as standard features, but most fleet owners and operators have elected not to activate these capabilities. CARB staff further found that only minor modifications to the programming of curr ently available HDDE electronic control software would be needed to comply wit h the new engine shutdown system requirement. CARB has currently certif ied 46 2008 model year HDDE engine families; 22 of these families incorpor ate an engine shutdown system. 50

The cost of compliance within the lead time pr ovided was also appropriately considered. As stated in Section VII.C of the ISOR, staff estimated that the compliance costs associated with this option would be mini mal – $100 per engine to cover additional administrative costs and minimal reprogr amming costs. Al though one commenter suggested that the engine shutdown require ment might require hardware changes to a vehicle’s electronic control module (ECM) as well as software changes, CARB staff disagrees that hardware changes would be required. 51

These considerations demonstrate that the new engine shutdown system compliance option is technologically feasible considering the cost of compliance within the lead time provided.

Several commenters asserted that the new engine shut down timer requirement fails to comply with the lead-time and stabili ty requirements of section 202(a)(3)(C) of the CAA, which specifies that no new em ission standard may take effect earlier than four model years after it is promulgated (“lead-time” requirem ent), or before the prior

emission standard has been in effect for at least three model years (“stability” requirement). The comment ers asserted that the engine shutdown requirement violates the lead-time requirement because it takes effect in the 2008 model year, less than two model years from its date of adopti on. The commenters also alleged that the engine shutdown requirement vi olates the stability requirement because heavy-duty on-highway engines are already subject to em ission control requirements applicable to 2007 through 2010 model-year engines. Therefor e, the CAA’s stab ility requirement prevents CARB from imposing any new em ission control requirements until 2013.

As CARB stated in the FSOR, 52 even if a waiver under secti on 209(a) is required for the engine shutdown timer requirement, the l ead-time and stability pr ovisions of CAA section 202(a)(3)(C) do not apply to this r equirement. First, sect ion 202(a)(3)(C) only

50 These engine families are manufactured by Caterpillar , Detroit Diesel Corporation, International Truck and Engine Corporation, General Motors, and Isuz u. Data current as of March 8, 2008.

51 FSOR, Section III (Comment 8 and Agenc y Response thereto; pp. 21-22).

52 FSOR, response to Comment 70, pp. 56-58.

28applies to standards “promulgated or revis ed under this paragraph [section 202(a) of the CAA],” that is, to standards promulgated by the Administrator of EPA. Because CARB adopted the new engine requirement pursuant to authority of California state law and the waiver provisions of section 209(b) of the CAA, the lead-time and stability requirements are simply inapplicable.

Second, EPA has historically only applied a “two-pronged” test of whether California

standards are consistent with CAA section 202(a) as required by section 209(b)(1)(C). The standards must be: (1) technologically feasible in the lead time provided considering the cost of compliance, and (2) compatible with the fe deral test procedures so that a single vehicle could be subjected to both tests. No more should be required. 53
This is in accord with the legislative histor y of section 209. When the California waiver provisions and the “consist ent with section 202(a)” language were first placed in the CAA in 1965, section 202(a) consisted of just one sentence requiring adequate lead time in consideration of technological feas ibility and economic costs. In the 1977 CAA amendments, Congress amended section 209 “to afford California the broadest possible discretion in selecting the best mean s to protect the health of its citizens and the public welfare.” 54 At the same time, Congre ss expanded section 202(a) to add several directives to EPA regarding its adopt ion of emission standards, including the four-year lead time requirement for heavy- duty vehicles. Given Congress’s expressed

intent to strengthen the waiver provisions, it is un likely Congress intended to apply the specific 4-year requirement to California.

Finally, even if the engine shutdown require ment were to be deemed a “standard” for purposes of CAA section 209(a), it still s hould not be considered to be a standard for purposes of the four-year lead- time requirement CAA section 202(a)(3)(C). The four-year lead-time requirement was designe d to assure that manufacturers have sufficient time to redesign and employ emi ssion control hardware. As stated above in Section VI.A, the new engine requirements do not necessitate redesign of current engines. Similarly, the lead-time and stability requirements of section 202(a)(3)(C) were not intended to encompass a software chan ge that does not affect the emissions monitored under the applicable test procedur es or engine design. The software changes needed to comply with the engine s hutdown requirement are much more

limited than those needed to implement on-board diagnostic requirements which Congress itself has determined do not necessitate four years lead time. 55

CARB also believes that t he commentators are misreading t he stability requirement in CAA section 202(a)(3)(C). That section simp ly states that any standard promulgated under 202(a) shall apply “for a period of no less than 3 model years,” and does not support an interpretation that limits the EPA’s authority to regulate heavy-duty vehicles or engines to once every three model years.

53 “Neither the court nor the agency has ever interpreted compliance with section 202(a) to require more.” Motor & Equipment Mfrs Assoc. v. Nichols , 142 F.3d 449, 463 (D.C. Cir. 1998).

54 H. R. Rep. No. 294, 95th Cong., 1st Sess. 30 1 (1977), reprinted in 4 Leg. Hist. at 2768.

55 The 1990 amendments to the CAA mandated EPA to adopt by November 1991 OB D requirements that take effect for model-year 1994.

29(ii) Optional NOx Idling Emission Standard

If the Administrator grants California a waiver of preemption for a primary motor vehicle emission standard (which necessarily require s the Administrator to find that the standard is technically feasible), the Admi nistrator may also waive an optional compliance procedure associated with t he primary compliance option. In MEMA II,

supra, petitioners challenged EPA’s issuance of a waiver for California’s optional 100,000 mile certification procedures. T hese procedures provided manufacturers an alternative to certifying vehicles to a 50,000 mile certification proc edure, for which EPA had previously issued California a waiver from preemption. The MEMA II court held EPA properly granted the waiver , even if the waiver decision did not include any evidence that the optional procedure was te chnically feasible for gasoline fueled vehicles. “The [optional] certification procedure is an option, and only if it is one among several technologically infeasible options is the California program in peril. ... No manufacturer is being required to c hoose between two impossible options.” 56

In this case, CARB only included the optional NOx idling emission standard to accommodate engine manufacturers’ requests fo r an alternative compliance option to the new engine shutdown timer requirement. As demonstrated above, the shutdown timer requirement is technologically feasib le within the lead time provided, and under the reasoning of the MEMA II court, EPA should find that the optional NOx idling compliance option also falls within the sc ope of the previously granted waiver for CARB’s 2007 HDDE standards and accompany ing test procedures. As in the MEMA II case, no manufacturer is compelled to follow two technologically infeasible options.

CARB acknowledges that staff did not antic ipate manufacturers would widely utilize the optional NOx idling emission standard option until the 2010 model year because “NOx aftertreatment devices are not anticipat ed to be employed and other engine idling controls/strategies have not been fully demonst rated” and because it is unlikely that engine manufacturers will equip their engines with NOx aftertreatment devices capable of complying with the NOx emissi on standard before the 2010 model year. 57 However,

as discussed in Section IV.A.iii of the IS OR, several manufacturers indicated that existing NOx aftertreatment devices (such as NOx adsorbers) did demonstrate the potential to reduce NOx emissions during idling. 58 Most significantly, substantially more manufacturers have certified 2008 model-y ear engines to this option than staff previously anticipated. 59 In fact, Cummins, Volvo, Hi no, and Mitsubishi have certified

their entire line of 2008 HDDEs to the optional NOx idling standard, and manufacturers that currently utilize the engine shutdown syst em option have indicated they may later certify their engines to this option via r unning changes. The strategies utilized by manufacturers to comply with the optional NOx idling standard largely do not require any additional hardware or modifications to emission control systems or components,

56 MEMA II , 627 F.2d 1128, 1132 (D.C. Cir. 1979).

57 ISOR, pp. 13 and 28.

58 Id. , p.11

59 These manufacturers include Cummins, Hino, Mitsubi shi, and Volvo. As of March 2008, 24 of the 46 HDDE engine families certified by CARB in 2008 ar e certified to the optional NOx idling standard.

30but only involve modifications to existi ng software (e.g., m odifying exhaust gas recirculation rates and/or the pulse widths of the fuel injectors during idle operating

modes.

b. The New Engine Requirements Do Not Impose Inconsistent Certification Requirements

Neither the new engine shutdown system nor the optional NOx idli ng emission standard option present any issues of test proc edure inconsistency because there are no analogous federal requirement s. The federal heavy-duty diesel standards for 2007 and newer model-year engines do not require engines to shut off after five or fifteen minutes of continuous idling or require engines to not exceed 30 grams of NOx per hour as measured over a prescribed te st cycle (either the idle m ode of the supplemental steady-state test, the idle porti on of the transient test cycle, or another test procedure, subject to advance Executive Officer approval). In fact, the optional NOX idling emission standard test procedures expre ssly provide they can be performed immediately after any testing conducted using the Federal Test Procedure or supplemental emissions tests. 60 Therefore, engine manufa cturers are not precluded from conducting one set of tests on 2008 and newer model-y ear heavy-duty diesel engines to determine compliance with both California and federal procedures.

3. The New Engine Requirements Do Not Raise New Issues Affecting the

Waiver Determination for CARB’s Amendments to its 2007 HDDE

Standards and Test Procedures

No new issues are presented by the new en gine requirements that affect the waiver

determination for amendments to Califor nia’s 2007 heavy-duty diesel standards and associated test procedures. The require ments do not extend the previously waived standards to a previously unregulated class of vehicles, establish significantly more stringent standards, or require significant new technological efforts to comply with the new engine requirements. The primary compliance opti on (engine shutdown system) will only require manufactur ers to perform minor repr ogramming of the software incorporated in existing engine or vehicle computers, and will not require any

modifications to hardware. Engine shutdown systems are software based controls that are presently available as standard features in most commercially available on-road heavy-duty engines. In fact, because commercially available engines already incorporate engine shutdown capability in their software, any reprogramming will only require minimal effort to ac tivate the idling shutdown cap abilities of new engines. Manufacturers will not need to develop new technologies or to produce and install mechanical components or systems into new engines beyond those already present in existing engines.

60 California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model heavyDuty Diesel Engines and Vehicles, Pa rt II, section 86.1360 -2007.B.4.2.1(a).

31VII. THE IN-USE IDLING ATCM REQUIREMENT IS AN OPERATIONAL CONTROL

ON IN-USE VEHICLES THAT IS NOT PREEMPTED BY CAA SECTION 209(a)

AND ACCORDINGLY DOES NOT NEED A SECTION 209(b) WAIVER

The 2008 truck idling requirement that extends the idling ATCM requirements to sleeper trucks as of January 1, 2008 constitutes an in-u se operational control of motor vehicles and does not require a waiver. CAA Section 209(a) only preempts stat es from adopting or attempting to enforce standards related to the control of emissions from new motor vehicles or new motor vehicle eng ines and the amendments to title 13 CCR section 2485 only apply to in-use motor v ehicles. Moreover, CAA section 209(d) provides that:

Nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, r egulate, or restrict the use, operation, or movement of registered vehicles.

Taken together, CAA sections 209(a) and (d) make clear that t he idling limits imposed on sleeper truck operators are not pr eempted and accordingly need no CAA section 209(b) waiver action.

VIII. THE ALTERNATIVE TECH NOLOGY REQUIREMENTS

As a threshold matter, it should be noted t hat the alternative te chnology requirements merely establish performance requirements fo r technologies used to supply power for truck cab or sleeper berth climate cont rol purposes and/or for other on-board

accessories that would otherwise have been generated by the conti nuous idling of the truck’s main engine. The decision to utilize such alternative technologies is entirely optional.

As previously described, the alternativ e technology requirements are dependent upon the model year of the truck engine utilizing the APS, and alte rnative technologies that comply with the performance requirem ents may be used on both new and in-use

HDDEs and HDDVs.

Currently, the most widely used on-board aux iliary devices on sleeper trucks are APSs powered by small diesel-fueled inte rnal combustion engines equipped with generators/alternators. These APSs are subject to existing CARB off-road emission standards because they are not used to propel mo tor vehicles. The va st majority of off-road engines used in APS applications ar e rated at less than 19 kW (26.03 hp), and therefore the following discussi on of APS engines is limited to off-road engines rated at or below this power rating.

32A. The Performance Requirements fo r Non-Diesel Fueled APS Engines and for Diesel-Fueled APS Engines Used on HDDVs Equipped with 2006 and Older HDDEs are Within the Scope of Previously Granted Authorizations

As noted in Section IV., since 1995 all new 1995 through 2007 m odel-year nonroad CI APS engines sold in California have been requi red to meet the applicable California Tier 1 or Tier 2 nonroad engine stand ards. EPA has administered largely identical federal standards for these engines since the 1997 model year. The California standards for new 1995 through 2007 model-year engines are covered by an outstanding authorization and subsequent withi n-the-scope confirmations. 61 California’s Tier 4 standards applicable to 2008 and subsequent m odel year engines are identical to EPA’s standards, and will be covered by the nonroad engine Tier 4 authorization that CARB

will soon submit. California’s standards for t he SI engines that could be used in an APS are also covered by a granted authorization. 62

As discussed in Section III.B.3.a. and b ., the 2008 Truck Idling Requirements add a requirement that starting January 1, 2008, a diesel-fueled APS engine on an HDDV equipped with a 2006 or older model-year HDDE may be operated in California only if the APS engine is certified to the applicable California or federal non-road emission standards. This requirement is effectively subsumed by the broader requirement that in order to be operated in Calif ornia starting January 1, 2008, an APS using any kind of internal combustion engine on an HDDV must be certified to applicable California or federal nonroad engine emission standards for its fuel type and power category. These provisions largely ensure that the preexisting standards for new nonroad engines are enforced while APSs are oper ated. The engine in any new APS acquired by the truck operator in response to the new in-use idling restrictions will be dire ctly subject to the preexisting off-road engine standar ds and certification requireme nts. By requiring that APSs operating in California be California or federally certifi ed, the requirement effectively prohibits the use of uncertified pre-1995 model year engines. Because of the links to the preexisting standards and certification requirem ents, the new requirements fall within the scope of prior authorizations fo r these engines. Consideration of each of the within-the-scope crit eria demonstrates this conclusion.

1. Protectiveness

In adopting the 2008 Truck Idling Requirement s, the Board approv ed Resolution 05-55 (Reference 5), in which it expressly declared:

BE IT FURTHER RESOLVED that the Board hereby determines, pursuant section 209(e)(2) of the feder al Clean Air Act, that the emission standards and other requirements related to the control of emissions adopted as part of this Airborne Toxi c Control Measure are, in the aggregate, at least as protective of public health and welfare as applicable

61 60 Fed.Reg. 37440 (July 20, 1995); 65 Fed.Reg. 69763 (November 20, 2000); 65 Fed.Reg. 69767 (November 20, 2000); 68 Fed.Reg. 65702 (November 21, 2003).

62 71 Fed.Reg. 75536 (December 15, 2006).

33federal standards, that California needs the adopted standards to meet compelling and extraordinary conditi ons, and that t he amended standards and accompanying enforc ement procedures are consistent with the provisions of section 209.

The CAA only authorizes EPA to adopt st andards and other requirements for new nonroad engines, vehicles, and equipment, 63 and only California may adopt emission

standards and other emission-related r equirements for in-use nonroad engines. 64
Accordingly, EPA has not adopted any standar ds or requirements for in-use APS engines and there is no question that the alternative technology requirements applicable to non-diesel fueled APS engines and diesel -fueled engines used on HDDVs equipped with 2006 and older model-year HDD Es are at least as protec tive of public health and welfare as applicable federal standards. 65

2. Consistency with CAA Section 209

As previously stated, section 209(e)(2 ) requires consistency with the several subsections of section 209; that is the Admi nistrator must consider not only consistency with section 202(a) – as required under section 209(b )(1)(C) – but also other

subsections of section 209. 66 In its 209(e) Final Rule, EPA interpreted this provision to require that California’s standards and accom panying enforcement provisions must also be consistent with sections 209(a) and 209(e)(1). 67

a. Consistent wit h CAA Section 209(a)

The APS requirements are cons istent with CAA section 209( a) which preempts states and political subdivisions from adopting or attempting to enforce any standard relating to

the control of emissions from new motor vehi cles or new motor vehicle engines. APSs are not subject to section 209(a) preemption because they are not new motor vehicles or new motor vehicle engines. Although A PSs may be installed on heavy-duty diesel vehicles, they do not propel the vehicles and therefore cannot be considered a motor vehicle engine. 68 APS engines clearly fall within the definition of nonroad engine established by Congress.

63 CAA section 213, which provides in relevant part:

If the Administrator makes an affirmativ e determination under paragraph (2) the Administrator shall, within 12 months after completion of the study under paragraph (1), promulgate and from time to time revise r egulations containing standards applicable to emissions from those classes or categories of new nonroad engines and new nonroad

vehicles....

64 EMA v. U.S. EPA, 88 F.3d 1075 at 1089-1090.

65 Id. , at 1089.

66 Air Pollution Control; Preemption of State Regul ation for Nonroad Engine and Vehicle Standards (“Section 209(e) Rule”), 59 Fed.Reg. 36969, 36983 (July 20, 1994).

67 Id.

68 See CAA section 216(2).

34In the Section 209(e) Rule, EPA defined “nonroad engine” to mean:

(1) Except as discussed in (2) below, a nonroad engine is any internal combustion engine:

(i) in or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function (such as garden tractors, off-highway mobile cranes and bulldozers); or (ii) in or on a piece of equipment that is intended to be propelled while performing its function (such as la wnmowers and string trimmers);

or (iii) that by itself or in or on a piece of equipment, is portable or transportable, meaning designed to be and capable of being carried

or moved from one location to anot her. Indicia of transportability include, but are not limited to wheels, skids, carrying handles, dolly, trailer, or platform.

(2) An internal combustion engine is not a nonroad engine if:

(i) the engine is used to propel a motor vehicle or a vehicle used solely for competition, or is subject to st andards promulgated und er section 202 of the [CAA]; or (ii) the engine is regulated by t he New Source Performance Standard promulgated under secti on 111 of the [CAA]; or (iii) the engine otherwise included in (1)(iii) remains or will remain at a location for more than 12 consecutive months or a shorter period of time for an engine located at a seasonal source.... 69

APS engines fall within the scope of section (1)(iii) of this definition, as they are engines incorporated in systems that are designed to be and capable of being transported by motor vehicles and do not meet any of the conditions for exclusion under paragraph (2). As stated, they are not used to propel a motor vehicle or vehicle used solely in competition; they are also not subject to section 111 of the CAA, and are not stationary sources in that they are constantly being transported from one location to another.

69 59 Fed.Reg. 36969, 36971 (July 20, 1994).

35b. Consistent with CAA Section 209(e)(1)

The APS requirements are not inconsistent with section 209(e)(1). That section establishes the federal preemption prohibiting states and local subdivisions from adopting or enforcing any standar d or other requirement re lating to the control of emissions of new engines used in farm and construction equipment that are smaller than 175 hp or engines used in new locomotives. APS engines are not used in locomotives and are not primarily used in farm and construction equipment and

vehicles.

In the Section 209(e) Rule , EPA established a “Primary Us e Test” to determine whether equipment using nonroad engi nes are preempted under section 209(e)(1). 70 Under that test, if the universe of a specific type of equipment or vehicle is used more than a majority of time in farm or construction uses than it would be considered a farm or construction piece of equipment or vehi cle for purposes of section 209(e)(1). 71 EPA defined “construction equipment or vehicle” and “farm equipment or vehicle” as follows:

Construction equipment or vehicle means any internal combustion engine-powered machine primarily us ed 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 and/or commercial harvesting of food, fiber, wood, or commercial organic products or for the processing of su ch products for further use on the

farm. 72

APSs are not primarily used in construction vehicles or equipment and are seldom, if ever, found on construction sites. Similarl y, APSs systems are not primarily used in vehicles or equipment engaged in the commercial prod uction or harvesting of food, fiber, wood, etc. and are seldom found on farms or agricultural lands.

c. Consistent with CAA Section 209(b)(1)(C)

(i) General

CAA section 209(b)(1)(C) provi des that no waiver shall be granted if the Administrator

finds that the state standards and acco mpanying enforcement procedures are not consistent with section 202(a) of the CAA. EPA has historically interpreted consistency with section 202(a) using a two- prong test: (1) that there is sufficient lead time to permit the development of technology necessa ry to meet the standards and other requirements, giving appropriate consideration to the cost of compliance in the time

70 Id. , at 36977.

71 Id. , at 36978, 36986.

72 Id. , at 36986.

36frame provided and (2) that t he California and federal test procedures are sufficiently compatible to permit manufacture rs to meet both the state and federal test requirements with one test vehicle or engine. 73

(ii) Technical Feasibility of APS Requirements

As described above, the alternative tec hnology requirements specify different requirements that are dependent on the model year, fuel type, and the horsepower category of the APS engines, and for diesel fueled APSs, the model year of the engine

in the HDDV.

In evaluating technical feasib ility under section 202(a) of th e CAA, the Administrator considers the factors previously discussed in Section VI.C.2 of this document. In applying these factors, it is readily apparent that the APS requirements are technologically feasible within the applicab le time frame, because the requirements simply require that any internal combus tion off-road engine used in an APS comply with

the California off-road and/or federal non-road emission standards and test procedures applicable for its fuel type and power category. The technological feasibility of these requirements has already been fully cons idered by EPA in granting California

authorizations under section 209 (e) for its small off-road engine and off-road CI engine standards and test procedures. 74 The only substantive authorization request still pending EPA’s review is for California’s 2004 amendments to new off-road CI engines, but given that these most recent amendments harmonize CARB’s standards and test procedures with the federal st andards and test procedures specified in its Tier 4 rulemaking (40 CFR Part 89) and the subsequent Omnibus Technical Amendments, 75

CARB is confident that EPA will find that these amendments satisfy the technical feasibility requirement s of section 202(a).

Moreover, since EPA has also establishe d emissions standards and test procedures applicable to small nonroad engine s since the 1997 model year, 76 it has fully explored the same issues relating to technical f easibility in promulga ting federal standards and requirements relating to smaller nonroad eng ines. These engines have been produced and used in APSs for years, and no comment er raised any issue regarding the feasibility of using a certif ied California or federal off-road engine on a HDDV equipped

with a 2006 or older HDDE. The fact that the APS requirements apply to operators and owners of heavy-duty diesel vehicles and not to off-road engine manufacturers should not affect this analysis. Traditional lead-t ime assumptions that apply to manufacturers of new engines as opposed to the time that end-users may elect to install in-use

73 See 61 Fed.Reg. 53371, 53372 (October 11, 1996); Decision Document at p.2 ( OBD II Waiver

Decision ).

74 See Section IV of this waiver support document, which provides a brief overview of California’s regulations and authorization requests for off-road engines rated at or less than 19 kW.

75 70 Fed.Reg. 40240 (July 13, 2005).

76 “ Control of Air Pollution; Emission for New Nonroad S park-ignition Engines At or Below 19 Kilowatts; Final Rule; 60 Fed.Reg. 34581-34657 (July 3, 1995).

37engines and equipment do not apply when c onsidering in-use performance standards. 77
There is no lead time required for tooling a production line and there is no clear end date for beginning the base time of production. 78 In this case what matters is whether the APSs needed for compliance will be commercially available in time for owners/operators to comply with the January 1, 2008 effe ctive date, and no commenter disputed such availability. Indeed, the lack of comment s from engine manufacturers effectively confirms that Tier 4 engines should be available in the time provided for compliance by end users.

The APS requirements do not modify the test procedures specified for certifying a California or federal off-road engine, and accordingly, the Administrator’s prior determinations of test procedure cons istency still remain in effect.

d. No New Issues

Finally, the APS requirements do not raise any new issues affecting the Administrator’s previous authorization determinations.

B. THE PERFORMANCE REQUIR EMENTS FOR DIESEL-FUELED APS
ENGINES OPERATED ON HDDVs EQ UIPPED WITH 2007 AND NEWER

HDDEs EITHER FALL WITHIN THE SCOPE OF PREVIOUSLY GRANTED
AND PENDING AUTHORIZATIONS OR QUALIFY FOR A NEW

AUTHORIZATION

The APS requirements specify that, star ting January 1, 2008, diesel APS engines that are operated in California on HDDVs equi pped with 2007 and subsequent model-year HDDEs must comply with the California or federal non-road emission standards and test procedures applicable to the horsepower cat egory of the engines and must additionally

either:

(i) have their exhaust routed into the tru ck’s exhaust system so that the APS PM emissions are controlled by the tru ck’s PM trap, (title 13, CCR section 2485(c)(3)(A)1.b), or

(ii) be equipped with a level 3 verified PM control strategy (i.e., achieve an 85 percent or greater PM reduction efficiency). 79 (Title 13, CCR section 2485(c)(3)(A)1.a.) CARB’s verification pr ocedures involve a thorough evaluation of the emission reduction capability of a trap and of its durability to ensure that the emission reductions achieved by the tr ap are both real and durable, and that production units in the field are achieving emission reductions t hat are consistent

77 Cf.

, International Harvester v. Ruckelshaus (D.C. Cir. 1973) 478 F.2d 615 and Natural Resources

Defense Council v. U.S. EPA (D.C. Cir 1981) 655 F.2d 318.

78 Id.

79 The PM trap verification procedure and in particular, the level 3 verification level, are specified in title 13, CCR sections 2700 to 2710.

38with the verification. They also require the manufacturer to warrant that its PM trap is free from defects in design, materials, workmanship, and that operation of the trap achieves the emission reduction levels it was verified to, or

(iii) subject to advance Executive Office r approval, use other procedures to demonstrate an equivalent level of emissi ons compliance (compared to routing the exhaust or using a level 3 verified PM c ontrol strategy). (T itle 13, CCR section 2485(c)(3)(A)2.)

1. Option 1 of the Performance Require ments for Diesel APSs is Within the Scope of California’s Pending Authorization Request for CARB’s 2000

and 2004 Amendments to Californ ia’s Off-Road CI Regulations

CARB will soon be filing a request for authorization for it s 2000 and 2004 amendments applicable to new California off-road CI engi nes that harmonize CARB’s standards and test procedures with the federal standards and test procedures specified in EPA’s Tier 4 rulemaking and the subsequent Omnibus Technical Amendments. 80 These

amendments establish CARB Tier 4 exhaus t emission standards for new off-road CI engines rated less than 19 kW that will be implemented starting with the 2008 model year. CARB is confident that once EPA appr oves this authorization request, it will also determine that Option 1 of the performance requirements applicable to diesel-fueled APSs falls within the scope of the aut horization request for CARB’s 2000 and 2004

amendments to California’ s off-road CI engines.

The first compliance option of the Alternat ive Technology Requirements specifies that owners or operators electing to operate a diesel-fueled APS on a HDDV equipped with a 2007 or newer model-year HDDE must r oute the APS’ exhaust into the HDDV’s exhaust system upstream of the vehi cle’s particulate matter trap.

This option satisfies the protectiveness cr iterion of CAA section 209(e)(2) for the reasons set forth above under Section VIII.A.1 – viz., only California may adopt

emission standards and other emission-rela ted requirements for in-use nonroad engines, and EPA has not adopted any requirements applicable to this ca tegory of in-use APS engines. There is no question that this option’s requirements are at least as protective of public health and welfare as applicable federal standards. New 2008

diesel-fueled APSs will be certified to eit her CARB or federal Tier 4 standards. As stated, in CARB’s 2004 rulemaking, Califor nia merely harmonized its regulations with those already adopted by EPA. In Resolu tion 04-43 (Reference 12), the Board found

that the amended emission standards and test procedures do not undermine its previous determinations that California’s emission standards for off-road CI engines under 19 kW are at least as protective of pub lic health and welfare as applicable federal

standards.

80 40 CFR Part 89 and 70 Fed.Reg. 40240 (July 13, 2005).

39This option is also not inconsistent with C AA section 209. It nei ther applies to motor vehicles and motor vehicle engines that are preempted under sect ion 209(a) nor to nonroad engines that are specifically preempted under section 209(e)(1).

Finally, this option is consistent with section 209( b)(1)(C) in that it is technically feasible within the specified lead time. CARB di d not receive any comments questioning the technical feasibility of rout ing a diesel APS’ exhaust ups tream of the main engine’s diesel particulate trap 81 and at least one major engine ma nufacturer has submitted an application for certification for its fully integrated APS an d truck exhaust system for the 2008 model-year. The option also raises no issues of test procedure inconsistency because it does not alter the test procedures specified for certifying a California or federal off-road engine. Opti on 1 also does not raise any new issues affecting the Administrator’s previous authorization determinations or the pending authorization request for 2000 and 2004 CI engines. Accordingl y, the first option falls within the scope of CARB’s authorization request fo r its 2000 and 2004 amendments applicable to new California off-road CI engines.

2. Options 2 and 3 of the Performa nce Requirements for Diesel APSs Meet

the Criteria for a New Authorization

The second compliance option specifies that owners or operators electing to operate a diesel-fueled APS on a HDDV equipped with a 2007 or newer model-year HDDE must equip the APS with a level 3 verified PM cont rol strategy, to reduce baseline PM emissions an additional 85 percent. The thir d compliance option allows the use of a

diesel-fueled APS that utilizes an alternative control meas ure that has demonstrated an equivalent level of emissions compliance com pared to either routing the exhaust to the HDDV’s main PM trap or using a level 3 veri fied PM control strategy. Because these requirements subject in-use off-road engines to much more stringent particulate matter

emission standards than those established in California’s Tier 4 standards for new off-road CI engines, 82 CARB requests that the Administ rator grant a new authorization for options 2 and 3. No basis exists fo r the Administrator to deny this request.

a. Protectiveness

In adopting Resolution 05-55 (Reference 5), t he Board found that to the extent the Alternative Technology Requirements component of the 2008 Truck Idling Requirements affects off-r oad engines, the emission standar ds and other requirements related to the control of emissions are, in the aggregate, at least as protective of public health and welfare as applicabl e federal standards. Calif ornia and federal Tier 4 emission standards for off-road CI engines are identical, and because options 2 and 3 now require these off-road CI engines to comply with more stringent PM emission

81 However, commenters did raise issues regarding the effect such a modification would have on a HDDV’s warranty. See FSOR, comments 35 and 36 and Agency Responses thereto.

82 The PM standard for new off-road CI engines rated at or less than 19 kW is 0.40 g/kw-hr; Options 2 and 3 would require Tier 4 engines to emit no more than 0.06 g/kw-hr.

40standards, it follows that these options are more stringent than applicable federal regulations, which do not require level 3 veri fied PM strategies (or their equivalent).

b. The Requirements are Needed to Meet Compelling and Extraordinary

Circumstances

In adopting Resolution 05-55, the Board also confirmed CARB’s longstanding position

that California continues to need its own nonroad engine and vehicle program to meet serious air pollution problems. The Admini strator has previously and consistently recognized that California meets the co mpelling and extraordinar y criterion when granting waivers for motor vehicles under section 209(b) and authorization for California’s nonroad regulations under section 209(e) of the CAA.

The relevant inquiry under section 209(e)(2)( A)(ii) is whether Ca lifornia needs its own emission control program to meet compelling and extraordinary conditions, not whether any given standard is necessary to meet such conditions. 83 In approving waivers under section 209(b), the Administ rator has determined that:

“[C]ompelling and extraordinary condition s” does not refer to levels of pollution directly, but primarily to t he factors that t end to produce them: geographical and climatic conditions that, when combined with large numbers and high concentrations of automobiles, create serious air pollution problems. 84

California and the South Coast and San Joaqui n Valley air basins in particular continue to experience some of the wo rst air quality in the nation. 85 The geographical and climatic conditions, and the tremendous grow th in vehicle population and use that moved Congress to authorize California to es tablish separate vehicle standards in 1967, still exist today. EPA recently confirmed t he ARB’s judgment, on behal f of the State of California, on this matter. 86

In the California Clean Air Act of 1988, the California Legislature found that:

[D]espite the significant reductions in vehicle emissions which have been achieved in recent years, continued growth in population and vehicle miles traveled throughout California have the potential not only to prevent

83 Final 209(e) Rule , 59 Fed.Reg. at 36982. The Administrator has recognized that even if such a standard by standard test were applied to California, it "would not be applicable to its fullest stringency due to the degree of discretion given to California in dealing with its mobile source pollution problems." (41 Fed.Reg. 44209, 44213, (October 7, 1976 ); 49 Fed.Reg. 18887, 18892 (May 3, 1984).)

84 49 Fed.Reg. at 18890. There the Administrator found that California need not demonstrate its particulate problem (or diesel vehicles’ contribution to it) is the worst in the country in order to adopt a particulate matter standard affecting diesel vehicles. Id. at 18891-92.

85 See e.g. Approval and Promulgation of State Impl ementation Plans; California – South Coast

, 64 Fed.Reg.1770, 1771 (January 12, 1999).

86 California State Motor Vehicle Pollution Control St andards; Waiver of Federal Preemption – Notice of Decision, 68 Fed.Reg.19811, 19812 (April 22, 2003).

41attainment of the stat e standards, but in some cases, to result in worsening of air quality. 87

In response to the undisputed severe air qua lity problems in Califor nia, the California Legislature authorized CARB to consider adopting, inter alia , standards and regulations for nonroad engines. 88 Given the serious air pollution problems California faces and the

resultant need to achieve the maximum r eductions in emissions, the California Legislature and CARB believe it is necessary to develop emission controls for nonroad

sources as well as for motor vehicles. 89 CARB continues to find such previously uncontrolled nonroad engines to be significant em ission sources for which controls are necessary to meet federal and state air quality standards. 90

By adding federal and state authority to regulate nonroad engines, Congress and California’s Legislature, respectively, acknowledged the incr easing importance of reducing emissions from all mobile sour ces, including nonroad engines. The Administrator has repeatedly agreed with CA RB that California’s continuing extraordinary conditions justify s eparate California nonroad programs. 91 Nothing in these conditions has changed to warrant a change in this determination. Accordingly,

for all the aforementioned reason s, there can be no doubt of th e continuing existence of compelling and extraordinary conditions justif ying California’s need for its own nonroad vehicle and engine emissions control program.

c. The Requirements Are C onsistent with CAA Section 209

The requirements of title 13, CCR secti ons 2485(c)(3)(A)1 and 2485(c)(3)(A)2 are consistent with CAA section 209. First, by their terms, the requ irements apply only to off-road sources, and not motor vehicles as defined by 40 CFR section 85.1703. Second, the options do not apply to new nonroad engines under 175 hp used in farm

and construction vehicles or to locomotives. 92 The options are also fully consistent with CAA section 202(a).

(i) Technology Required to Comply wit h Option 2 Is Feasible Given the Lead

Time Provided and the Costs of Compliance

Option 2 is consistent with section 202(a) in that the required technology is feasible within the lead time provided and considering the costs of compliance. CARB has not yet issued a verification for any level 3 particu late matter control st rategies for diesel APS applications, but several APS manufacturers have submitted applications to verify level 3 particulate matter devices for APS applic ations for idling trucks that are presently being reviewed and processed by staff. Also , major engine manufac turers (Cummins

87 California Health and Safety Code section 43000.5.

88 California Health and Safety Code sections 43013 and 43018.

89 See California Health and Safety Code sections 41750, 41754, 43000.5, 43013 and 43018.

90 Resolution 03-37. See also ISOR at Chapter II.

91 Utility Authorization , Decision Document, at p. 33; OHRV Authorization , Decision Document, at pp. 27-29; and HDOR Authorization , Decision Document, at pp. 16-18.

92 CAA section 209(e)(1).

42and Caterpillar) are developing integrated main engine/APS systems that they expect to offer as factory options.

During the development of CARB’s Tier 4 of f-road emission standard s, aftertreatment technology was not commercially available fo r smaller diesel engines, such as the engines powering diesel APSs, and staff theref ore could not specifically elaborate on the feasibility of applying PM a ftertreatment to these smalle r diesel engines. However,

there is no inherent PM emissi on characteristic that would prevent a manufacturer from applying a PM filter system us ed on larger diesel engines to smaller diesel engines. The lower exhaust temperatur es from smaller engines wil l likely require an active regeneration strategy to prevent the PM filter from clogging, but PM aftertreatment strategies being developed for 2007 and newer on-road HDDEs will also employ active regeneration strategies to prevent the possib ility of PM filter failure under certain low exhaust temperature operations. Therefore, on-road diesel PM filter technologies that will be deployed on HDDEs beginning in 2007 can be applied to diesel fueled APSs with only modifications to active regeneration strategies and to accommodate the smaller PM filter sizes. Furthermore, PM traps and regeneration strategies designed for use in transportable refrigeration units (TRUs) and T RU generator sets can be readily adapted to APSs, since these applications use the same categories of small diesel engines that are operated under similar engine speeds and loads. The technological feasibility discussion for Option 2 is set forth in greater detail the ISOR at pp. 28-29.

The cost of compliance within the lead ti me provided was also given appropriate

consideration. CARB staff estimated t hat businesses that purchase new 2007 and subsequent model-year sleeper trucks will incu r a cost of approximately $7,000 to $10,100 (cost of an APS with additional PM control and, for California certified trucks, an engine shutdown system for 2008 and su bsequent model-year engines). However,

staff also concluded that these additional costs could be recovered within 2.5 years through reduced fuel consumption and maintenance requirement s. Therefore, overall, the proposed requirements would benefit HDDV owners because they will realize a net savings from improved operating costs. 93

Moreover, Option 2 constitutes only one of seve ral alternatives available to owners or operators. It bears repeating t hat the 2008 Truck Idling Requ irements were deliberately designed to be “technology neutral.” Specifically, the regulation provides regulated entities a wide range of compliance options, and does not mandate or compel regulated entities to utilize any one specific technol ogy or strategy. Fo r example, heavy-duty diesel vehicles using 2008 and newer engine s certified to the optional NOx idling

emission standard 94 are exempted from t he in-use idling ATCM, provided they are located beyond 100 feet of a restricted area (title 13 CCR section 2485(d)(1)(A)). 95 As

93 Staff’s analysis in the ISOR was based on a diesel fu el price of $2.40 a gallon. Diesel prices are now significantly higher ($3.44/gallon). Diesel Jumps to a Record High at the Pump , Los Angeles Times (November 27, 2007) (Reference 13).

94 Title 13 CCR section 1956.8(a)(6)(C)

95 Title 13 CCR section 2485(d)(1)(B)provides that the HDDV must also labeled in accordance with title 13 CCR section 1956.8(b).

43stated, during the rulemaking, CARB staff di d not anticipate that manufacturers would widely utilize this compliance option before 2010 96 , but staff now indicates that substantially more manufacturers will be certifying 2008 model-year engines to this option than it previously anticipated. 97 Other options include Option 1 (routing the APS exhaust), utilizing a non-diesel fueled AP S, Option 3 (using an emissions control strategy that is equivalent to Option 1 or 2 on a diesel APS), or another idle reduction technology (discussed in greater detail below).

(ii) Technology to Comply wit h Option 3 Is Presently Available

The Alternative Technology Requirements also allow the use of any compliance strategy provided it is at least as effectiv e in reducing idling emissions as the emission requirements applicable to internal com bustion engine powered APSs or the optional NOx idling em ission standard 98 . Such alternatives include, without limitation, battery powered APSs, thermal energy st orage systems, truck stop elec trification, and off-board power infrastructure such as that dev eloped by IdleAire Technologies. These technologies are described in greater det ail in Section V of the ISOR, and representatives from companies producing such alternative te chnologies testified at the October 20, 2005 public hearing that their products were presently commercially available and had payback periods of less than a year, which is comparable to staff’s projected payback period of 1.5 to 2.5 years. 99

The anticipated compliance cost s associated with these alternatives are set forth in Section V of the ISOR. As expected, t hese costs are generally higher than those associated with more proven technologie s, but have costs with payback periods comparable to those proj ected for Option 2.

It should also be noted that many if not most of the technologies that could be used to comply with Option 3 could also be used to comply with the Other Idle Reduction Technology compliance provision described below.

(iii) Options 2 and 3 Are Consis tent with Federal Test Procedures

Options 2 and 3 present no issue regarding incompatibility between California and federal test procedures that would prevent manufacturers from meeting both California and federal test requirements with one test engine. Specific ally with respect to the Level 3 verified PM control strategy and equivalent compliance levels, no incompatibility

96 ISOR, p. 13; FSOR, pp. 23-24.

97 These manufacturers include Caterpillar, Cummins , Detroit Diesel Corporation, Ford, and Hino.

98 Title 13 CCR section 2485(c)(3)(C).

99 Specifically, Webasto’s Blue Cool Truck parking cooler (thermal energy st orage system) has a payback period of 30 weeks or less [Transcript of October 20, 2005 Public Hearing in the 2008 Truck Idling Requirements rulemaking, hereinafter “Transcript,” 221:23 to 224:5; (Reference 8)]; IdleAire stated that it intended to expand its truck stop electr ification services in California to approximately three to four times the amount of its current levels [Transcript 225:21-23] ; Idling Solutions and Coval Partners discussed its battery powered system that is cu rrently available and has a projected payback period of less than one year [Transcript, 234:5 to 235:20].

44issue arises because EPA does not have any comparable in-use standards and lacks the authority to adopt such requirements. 100

For the foregoing reasons, CARB requests that the Administrator grant a new authorization for Options 2 and 3 to the Performance Requirements for Diesel APSs.

C. The “Other Idle Reduction Technologi es” Option Either Falls Within the Scope of Previously Granted Authorizations and Waivers or Meets the

Criteria for a New Authorization

Title 13 CCR section 2485(c)(3)(C) allows the us e of technologies that will reduce idling emissions provided they are at least as effective in reducing emissions as the requirements applicable to APSs as describ ed above, or the optional NOx idling emission standard. These technologies include batteries, fuel cells, power inverter/chargers for on-shore electrical power , on-shore electric power infrastructure (truck stop electrification) and other technologies that produce minimal or no emissions.

To the extent this alternative establishes requirements equivalent to those applicable to non-diesel and diesel fueled APSs operat ed on HDDVs equipped with 2006 and older HDDEs, it falls within the scope of previ ously granted authorizatio ns for the reasons specified in Section V III.A. of this document.

To the extent this alternative establishes requirements equivalent to those applicable to diesel fueled APSs operated on HDDVs eq uipped with 2007 and newer HDDEs and to the performance requirements of Option 1 (routing APS exhaust into the main PM trap), it falls within the scope of authorization for the reasons specified in Section VIII.B.1 of

this document.

To the extent this alternative establishes requirements equivalent to those applicable to diesel fueled APSs operated on HDDVs eq uipped with 2007 and newer HDDEs and to the performance requirements of Options 2 and 3 (requiring a level 3 verified PM control strategy or equivalent), it qualifies for a new authorization for the reasons specified in

Section VIII.B.2 of this document.

Finally, to the extent this alternative est ablishes requirements equivalent to the optional NOx idling emission standar d, it falls within the scope of the previously granted waiver for CARB’s 2007 HDDE standards and accompany ing test procedures for the reasons specified in Section VI.C. of this document.

D. The Fuel-Fired Heater Requi rements Are Not Preempted and Accordingly Do Not Require an Authorization

Title 13 section 2485(c)(3)(B) states that f uel-fired heaters must generally comply with

the emission limits contained in Califor nia’s Low Emission Vehicle program requirements. This requirement does not require an author ization because CAA

100 See CAA section 213; EMA v. U.S. EPA, supra, 88 F.3d 1075.

45section 209(e) only preempts states from adopting or attempting to enforce standards

related to the control of emissions from nonr oad engines or nonroad vehi cles.

Fuel-fired heaters ar e neither nonroad engines nor vehicles.

IX. LABELING REQUIREMENTS

The 2008 Truck Idling Requirements contain engi ne and vehicle labeling provisions. The engine labeling requirement require s that new 2008 and subsequent model-year California certified HDDEs be equipped with a label containing an unconditional statement of compliance with appropriate model-year California regulations (subsection

35.A.1.3 of the “Ca lifornia Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model heavy-Duty Die sel Engines and Vehicles”).

The vehicle labels will aid enf orcement personnel in clearly and easily identifying those HDDVs that are either equi pped with HDDEs certified to the optional NOx idling emission standard or are equipped with APSs that comply with the proposed performance requirements. The first v ehicle labeling provision requires engine

manufacturers that elect to certify 2008 and later model -year HDDES to the optional NOx idling emission standard to produce a vehicle label to identify the vehicle as being equipped with a “Clean Idle” engine. 101 The second vehicle labeling provision requires that a 2007 or newer model-year HDDV equipped with an APS complying with applicable performance specifications have a label affixed to the vehicle hood that

identifies the vehicle us es a “Verified Clean APS.” 102

A. The Engine and Optional NOx Id ling Labeling Requirements Constitute “Other Conditions Precedent” That Do Not Require Further Waiver

Action

Because the engine and optional NOx idling labeling require ments do not pertain to a manufacturer’s ability to certify and produce motor vehicles or motor vehicle engines that comply with applicable emission standards , the requirements ar e not standards or accompanying enforce ment procedures. 103 The specifications are, however, subject to federal preemption pursuant to Clean Air Act Section 209(a) because they are a condition precedent to the initial retail sale of new vehicles in California. 104

EPA has stated with respect to the applicati on of Section 209 of the Clean Air Act:

101 Title 13, CCR section 1956.8(a)(6)(C) and subs ection 35.B.4 of the “California Exhaust Emission

Standards and Test Procedures for 2004 and Su bsequent Model heavy-Duty Diesel Engines and

Vehicles”.

102 Title 13, CCR sections 2404, 2424 and 2485(c)(3)(D) and subsection 35. B.4 of the “California Exhaust

Emission Standards and Test Procedures for 2004 and Subsequent Model heavy-Duty Diesel Engines

and Vehicles”.

103 54 Fed.Reg. 13427 (April 3, 1989); 43 Fed.Reg. 36679 (August 18, 1978).

104 See, e.g. , 49 Fed.Reg. 18887 (May 5, 1984); 47 Fed.R eg. 1015 (January 8, 1982); 46 Fed.Reg. 36237 (July 14, 1981).

46Once California has received a waiv er of federal preemption for its standards and enforcement procedures fo r a class of vehicles, it may adopt other conditions precedent to initial retail sale, titling or registration of the subject class of vehicles without the necessity of receiving a further waiver of Federal preemption. 105

EPA has also stated in a prior determinat ion regarding emission control labeling:

EPA’s prior issuance of waivers for t he affected classes of vehicles and engines, based on California’s st andards and/or accompanying enforcement procedures, removes t he prohibitions of section 209(a) regarding such conditions precedent for these classes. Hence no waiver under section 209(b) is required fo r California to enforce the amended [Emission Control] Label Specifications. 106

As discussed in Section IV.A. above, CARB has previously received a section 209(b) waiver for the amendments to its heavy- duty diesel engine standards for 2007 and subsequent model-year engines and related test procedures. Therefore, with respect to these amendments, CARB requests confirmation that the previous section 209(b)

waiver relieves CARB of the need to demonstr ate that the specific ations independently

meet the waiver criteria and that the amended specifications may be enforced in California without further action by the Administrator.

B. The Auxiliary Power System Labe ling Requirement Is an Accompanying

Enforcement Provision

The APS labeling requirement is intended to ensure effective enf orcement of the underlying APS performance standards by r equiring manufacturers certifying a compliant APS to produce label to be affi xed to the HDDV, and is therefore an accompanying enforcement provision. In adopting the Alternative Technology Requirements, the Boar d determined that these requirem ents, in the aggregate, are as protective of public health and welfare as applicable federal standards, and that the requirements are necessary to meet compelling and extraordinary conditions. 107 No issues regarding consistency of the APS la beling requirement with section 202(a) were raised during the rulemaking process.

To the extent that the APS labeling requirements help enforce elements for which CARB is seeking confirmation that the elements are within the scope of previous authorizations or waivers, CARB is requesti ng that the confirmation decision include the APS labeling requirements. To the extent that the APS labeling requirements help

enforce elements for which CARB seeks a new authorization, it similarly requests that the authorization include the APS labeling requirement.

105 46 Fed.Reg. 36742 (July 15, 1981), footnotes om itted; 45 Fed.Reg. 54131 (August 14, 1980); 43 Fed.Reg. 36579 (August 18, 1978).

106 54 Fed.Reg. 13427 (April 3, 1989).

107 Resolution 05-55.

47X. CONCLUSION

Based on the foregoing, CARB respectfully requests that the Administrator grant California’s requests for the waiver and aut horization actions as described in this document pursuant to CAA section 209. To a ssist you in reviewing the requests, CARB is enclosing two CD-ROMs, each containing the following referenced documents to be

included in the record of this waiver proceeding.

Reference Materials from the 2008 Truck Idling Requirements Rulemaking

1. Public Hearing Notice, dated August 23, 2005.

2. Staff Report: Initial Statement of Reasons for Proposed Rulemaking, with Appendices A and B.

3. Copy of Slides for Staff Presentation.

4. Notice of Availability of Modified Tex t, with Attachments 1 and 2, issued June 28,

2006.

5. Resolution 05-55, dated October 20, 20005, with Attachment C.

6. Executive Order R-06- 003, dated September 1, 2006.

7. Final Statement of Reasons for Rule making, Including Su mmary of Comments and Agency Response.

8. Transcript of October 20, 2005 Public Hearing in the 2008 Truck Idling Requirements rulemaking

9. Fully endorsed STD 400 face sheet and Final Regulation Order as approved by

OAL and filed with the Secret ary of State January 18, 2007, for amendments to title 13, California Code of Regulations , sections 1956.8, 2404, 2424, 2425, 2485 and incorporated test procedures.

10. The final version of the document inco rporated by reference in the regulations contained in the Final Regulation Order:

California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diese l Engines and Vehicles, as amended September 1, 2006, incorporated by re ference in § 1956.8, title 13, CCR.

11. Office of Administrative Law Approval Notice, dated October 16, 2006.

4849 Other Relevant Materials

12. Resolution 04-43

13. Diesel Jumps to a Record High at the Pump , Los Angeles Times (November 27, 2007).

CARB Contacts

Technical questions or requests for additional technical information on this item should be directed to Stephan Lemieux, Manager of CARB’s On-Road Heavy-duty Diesel Section, at (626) 450-6162. Legal questions s hould be directed to Alex Wang, Senior Staff Counsel, at (916) 323-9610.