1 

WAIVER AND AUTHORIZATION REQUEST 

 SUPPORT DOCUMENT 

CALIFORNIA’S REGULATION FOR MOBILE CARGO HANDLING 

EQUIPMENT AT PORTS AND INTERMODAL RAIL YARDS 

 (CHE REGULATION) 

Submitted by the California Air Resources Board Pursuant to 

 Clean Air Act Section 209(b) and 209(e)(2) 

January 29, 2007 
1

I. INTRODUCTION AND BACKGROUND 

 

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

the U.S. Environmental Protection Agency (U.S. EPA) confirm that certain requirements 

of California’s Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal 

Rail Yards (CHE Regulation) be treated as if they fall within the scope of previously 

granted waivers and authorizations under Clean Air Act (CAA) section 209(b) and 

209(e)(2),1

 and grant a new authorization pursuant to CAA section 209(e)(2) to adopt 

and enforce some of the elements of the regulation as they apply to nonroad2 engines. 

Section II of this document describes the regulation in detail, and Section III describes 

the specifics and rationale for California’s request as it applies to the various elements 

of the regulation. 

The Board approved the CHE Regulation at a public hearing on December 8, 2005, by 

Resolution 05-62 (enclosed herewith). At the direction of the Board, after making 

modifications to the regulation available on June 2, 2006 for supplemental public 

comment, ARB’s Executive Officer formally adopted the CHE Regulation by issuing 

Executive Order R-06-007 on October 17, 2006. (Both the modifications to the 

regulation and the Executive Order are enclosed herewith.) The requirements are 

codified at title 13, California Code of Regulations (CCR) section 2479.3

 The California 

Office of Administrative Law approved the regulation on December 6, 2006, and it 

became operative on December 31, 2006. 

The regulation was adopted under California’s Air Toxics Program, set forth in Health 

and Safety Code (HSC) sections 39650 through 39675, and ARB’s general authority to 

adopt and implement regulations for on- and off-road motor vehicles. The Air Toxics 

Program mandates the identification and control of toxic air contaminants (TACs) in 

California. The identification phase of the Air Toxics Program requires ARB, with 

participation of other state agencies such as the Office of Environmental Health Hazard 

Assessment, to evaluate the health impacts of, and exposure to, substances and to 

identify those substances that pose the greatest health threat as TACs. The ARB's 

evaluation is made available to the public and is formally reviewed by the Scientific 

Review Panel (SRP) established under HSC section 39670. Following ARB's 

evaluation and the SRP's review, the Board may formally identify a TAC at a public 

hearing. Following the identification of a substance as a TAC, Health and Safety 

Code sections 39658, 39665, 39666, and 39667 require ARB, with the participation of 

the air pollution control and air quality management districts (districts), and in 

consultation with affected sources and interested parties, to prepare a report on the 

need and appropriate degree of regulation for that substance. 

In 1998, the Board identified diesel particulate matter (diesel PM) as a toxic air 

contaminant with no Board-specified threshold exposure level. A needs assessment for 

diesel PM was conducted between 1998 and 2000, which resulted in ARB developing a 

Risk Reduction Plan to Reduce Particulate Matter Emissions from Diesel-Fueled 

 

1

 In particular, the waiver for 2007 and subsequent model year heavy-duty diesel engine standards, 

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption; Notice of 

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

2

 In this request, the federal term “nonroad” and the California term “off-road” are used interchangeably. 

3

 Unless otherwise noted, all section references are to title 13, CCR. 
2

Engines and Vehicles (Diesel RRP). The Diesel RRP presented information that 

identified the available options for reducing diesel PM and recommended regulations to 

achieve further reductions. The scope of the Diesel RRP was broad, addressing all 

categories of engines, both mobile and stationary. 

Once ARB has evaluated the need to regulate a TAC, HSC section 39667 requires that 

ARB adopt regulations to reduce emissions of the TAC from vehicular sources, such as 

mobile cargo handling equipment, to the lowest level achievable through the application 

of best available control technology (BACT) or a more effective control method, after 

consideration of cost, risk, environmental impacts, and other specified factors. In 

adopting the CHE Regulation, the Board considered all of the above. 

The CHE Regulation will reduce emissions of diesel PM and oxides of nitrogen (NOx). 

The regulation will also result in future reductions of reactive organic gases because of 

requirements that accelerate turnover of the equipment. Diesel PM emission reductions 

are needed to reduce the potential cancer risk and other adverse impacts to the people 

who live in the vicinity of California’s major ports and intermodal rail yards. The CHE 

Regulation will provide 865 tons of diesel PM emission reductions and 18,633 tons of 

NOx emission reductions throughout California between the years of 2007 and 2020. 

These emission reductions will occur in areas near ports and intermodal rail yards, 

many of which are non-attainment for the State and federal ambient air quality 

standards for PM10, PM2.5 and ozone. 

II. SUMMARY OF THE MOBILE CARGO HANDLING REGULATION4

 A. Emission Standards

The CHE Regulation is designed to use BACT to reduce the general public’s exposure 

to diesel PM and NOx emissions from mobile cargo handling equipment at ports and 

intermodal rail yards. Mobile cargo handling equipment is any engine-propelled vehicle 

used to handle cargo at ports and intermodal rail facilities and vehicles used to perform 

routine and predictable maintenance and repair activities and includes, but is not limited 

to, yard trucks, top handlers, side handlers, rubber-tired gantry (RTG) cranes, forklifts, 

dozers, and loaders. 5 In addition to required performance standards, the regulation 

includes record keeping and reporting requirements that will provide up-to-date 

information on cargo handling equipment and activities and aid in enforcement of the 

regulation. 

 

4

 A detailed discussion of the adopted Mobile Cargo Handling regulation is set forth in the Staff Report: 

Initial Statement of Reasons, a copy of which is enclosed herewith. 

5

 The term “motor vehicle” used herein is more expansive than the comparable federal term defined at 40

Code of Federal Regulations (CFR) Part 85 § 85.1703. Under California Vehicle Code §§ 415 and 670, 

which are referenced in HSC §§ 39039 and 39059, define a motor vehicle as any vehicle capable of 

being propelled down a highway. In California, both on-road and off-road vehicles may be classified as a 

motor vehicle. 
3

 1. Newly Purchased, Leased, or Rented Equipment and Vehicles

The requirements for newly purchased, leased, or rented equipment, as well as in-use 

equipment, affect owners and operators of mobile cargo handling equipment, as well as 

persons who sell, offer for sale, purchase, lease, or rent such equipment for use at ports 

or intermodal rail yards in California. 

The CHE Regulation requires, beginning January 1, 2007, that engines equipped in 

newly purchased, leased, or rented (jointly referred to as newly acquired6

) mobile cargo 

handling equipment/vehicles meet specific performance standards. These standards 

vary depending on the classification of the newly acquired equipment and vehicles (i.e., 

whether the engine is used in off-road equipment and vehicles or registered as on-road 

motor vehicles), and the availability of certified on-road engines for use in off-road 

equipment and vehicle applications. The regulation specifically addresses yard trucks 

that are mobile utility vehicles, generally used off-road at ports and intermodal rail yard 

facilities. They are used to carry cargo containers with or without chassis and are 

commonly referred to as utility tractor rigs, yard tractors, yard goats, yard hostlers, yard 

hustlers, or prime movers. They are very similar to heavy-duty on-road truck tractors, 

except that the majority are equipped with off-road engines. 

Some yard trucks are registered to operate on California highways. For these vehicles, 

the regulation requires that if they are newly acquired after January 1, 2007, they must 

be equipped with engines that are certified to the on-road engine emission standards for 

the model year in which they are newly acquired.7

 

For yard trucks that are not registered for on-road operation, the regulation requires that 

that they have engines that are either certified to the on-road emission standards for the 

model year in which a yard truck is newly acquired8 or to the final Tier 4 off-road 

emission standards for the engine’s rated horsepower.9

For mobile cargo handling equipment other than yard trucks (non-yard trucks), the 

regulation provides that these vehicles be treated similarly to yard trucks if they are 

registered for on-road use. That is, if a non-yard truck is newly acquired after 

January 1, 2007, and if it is registered for on-road operation, it must be equipped with 

an engine that that has been certified to meet the on-road emission standards for the 

model year in which the non-yard truck mobile cargo handling equipment was newly 

acquired.10

If the non-yard truck is not registered for on-road use, its engine must – if technically 

feasible and available in the market for sale, lease, or rental – meet one of the following 

 

6

 Acquired means the date that a purchase order, lease, or rental agreement is signed, not the date that it 

arrives to be placed into service. 

7

 Section 2479(e)(1)(A)1.a., referencing title 13, CCR, § 1956.8. On-road registered yard trucks acquired 

in 2007 would be required to have an engine that meets the on-road emission certification standards for 

2007 model year engines. 

8

Id. 

9

 Section 2479(e)(1)(A)1.b., referencing the state and federal final Tier 4 off-road certification standards 

set forth respectively at title 13, CCR, § 2423 and 40 CFR Part 89; see also 69 F.R. 38958, 39072-3 

(June 29, 2004). 

10 Section 2479(e)(1)(B)1.a. 
4

two certification standards for the model year in which the equipment was newly 

acquired: the on-road engine certification standards or, alternatively, the off-road Tier 4 

certification standards for the model year and rated horsepower of the engine.11 If 

neither of the first two options is feasible or available, the regulation requires the newly 

acquired non-yard truck be equipped with an engine that meets the most stringent 

certified off-road engine for the type of vehicle and application for the model year in 

which the vehicle is newly acquired.12 Additionally, within one year of acquiring the new 

vehicle, the owner or operator must install the highest level verified diesel emission 

control strategy (VDECS)13 available on the market. If no VDECS becomes available by 

the end of the one-year period, the owner or operator must install the highest level 

VDECS within six months after one becomes available.

14

 

2. In-Use Mobile Cargo Handling Equipment

 a. Yard Trucks

The CHE Regulation requires in-use yard trucks, whether registered or not, to meet 

performance standards based on BACT by choosing one of three options: (1) meet the 

2007 or later model year certified on-road engine standards; (2) meet the certified Tier 4 

off-road standards; or (3) apply VDECS that reduce emissions to levels that are at least 

as stringent as diesel PM and NOx emissions of a certified final Tier 4 off-road diesel 

engine for the same horsepower rating.15 Additionally, owners and operators are 

required to follow different compliance schedules for meeting the in-use performance 

requirements depending upon the number of non-newly acquired yard trucks in their 

fleets, the model year of the trucks, whether the trucks are equipped with on-road or offroad engines, and whether the engines were equipped with VDECS by December 31, 

2006.16 Owners and operators of fleets having three or fewer vehicles must meet the 

following schedule: 

 

11 Section 2479(e)(1)(B)1.b. 

12 Section 2479(e)(1)(B)1.c. 

13 Id. In 2003, ARB adopted Verification Procedure, Warranty and In-Use Compliance Requirements for 

In-Use Strategies to Control Emissions from Diesel Engines (Verification Procedure), title 13, CCR, §§ 

2700-2710. 

14 Section 2479(e)(1)(B)1.c. 

15 Section 2479(e)(2)(A). 

16 Section 2479(e)(2)(B), Table 1, Compliance Schedule for In-Use Yard Truck Fleets of Three or Less.. 
5

Off-road without VDECS Installed by 

December 31, 2006 

 Off-road with VDECS Installed by 

December 31, 2006 

Model Year Compliance Deadline Model Year Compliance Deadline 

Pre-2003 Dec. 31, 2007 Pre-2003 Dec. 31, 2008 

2003 Dec. 31, 2010 2003 Dec. 31, 2011 

2004 Dec. 31, 2011 2004 Dec. 31, 2012 

2005 Dec. 31, 2012 2005 Dec. 31, 2013 

2006 Dec. 31, 2013 2006 Dec. 31, 2014 

 

On-road without VDECS Installed by 

December 31, 2006 

 On-road with VDECS Installed by 

December 31, 2006 

Model Year Compliance Deadline Model Year Compliance Deadline 

Pre-2000 Dec. 31, 2007 Pre-2000 Dec. 31, 2008 

2000 Dec. 31, 2008 2000 Dec. 31, 2009 

2001 Dec. 31, 2009 2001 Dec. 31, 2010 

2002 Dec. 31, 2010 2002 Dec. 31, 2011 

2003 Dec. 31, 2011 2003 Dec. 31, 2012 

2004 Dec. 31, 2012 2004 Dec. 31, 2013 

2005 Dec. 31, 2013 2005 Dec. 31, 2014 

2006 Dec. 31, 2014 2006 Dec. 31, 2015 

The regulation provides owners or operators that have installed VDECS prior to 

December 31, 2006 to delay compliance one year. For example, an owner or operator 

with a fleet of three or fewer in-use yard trucks with pre-2003 model-year certified or 

non-certified off-road engines, without VDECS, must comply with the in-use 

performance standards by December 31, 2007. By comparison, the owner or operator 

of three or fewer pre-2003 in-use vehicles with off-road engines that had VDECS 

installed before December 31, 2006 has until December 31, 2008 to comply. 

The regulation provides owners or operators of larger fleets with additional time by 

allowing them to phase-in compliance over several years.17 The compliance schedule 

is set forth below. As with smaller fleets of three or less, the compliance dates for fleets 

of four or more depend upon several factors: the model year of the vehicles within the 

fleet, whether the vehicles are equipped with on-road or off-road engines, and whether 

the engines have had VDECS installed on or before December 31, 2006. Similar to 

smaller fleets, owners and operators of fleets of four or more are provided with an 

additional year before compliance if their fleets have been retrofitted with VDECS. In 

the first year that a fleet is required to comply, the owner or operator must bring at least 

three of its vehicles from the entire fleet into compliance or a specified percentage of the 

group category (i.e., model-year off-road with or without VDECS, model-year on-road 

with or without VDECS), whichever is greater. In subsequent years, the owner or 

operator must meet the compliance date and percentage for the specific category group 

of vehicles as set forth in the following table. 

 

17 Section 2479(e)(2)(B) Table 2, Compliance Schedule for In-Use Yard Truck Fleets of Four or More. 
6

Off-road without VDECS Installed by 

December 31, 2006 

 Off-road with VDECS Installed by 

December 31, 2006 

Model 

Year 

% of Model Year Compliance 

Deadline 

Model 

Year 

% of Model Year Compliance 

Deadline 

Greater of 3 or 50% Dec. 31, 2007 Greater of 3 or 50% Dec. 31, 2008 Pre-2003 

100% Dec. 31, 2008 

Pre-2003 

100% Dec. 31, 2009 

Greater of 3 or 25% Dec. 31, 2010 Greater of 3 or 25% Dec. 31, 2011 

2003 50% Dec. 31, 2011 50% Dec. 31, 2012 

100% Dec. 31, 2012 

2003 

100% Dec. 31, 2013 

Greater of 3 or 25% Dec. 31, 2011 Greater of 3 or 25% Dec. 31, 2012 

2004 50% Dec. 31, 2012 50% Dec. 31, 2013 

100% Dec. 31, 2013 

2004 

100% Dec. 31, 2014 

Greater of 3 or 25% Dec. 31, 2012 Greater of 3 or 25% Dec. 31, 2013 

2005 50% Dec. 31, 2013 50% Dec. 31, 2014 

100% Dec. 31, 2014 

2005 

100% Dec. 31, 2015 

Greater of 3 or 25% Dec. 31, 2013 Greater of 3 or 25% Dec. 31, 2014 

2006 50% Dec. 31, 2014 50% Dec. 31, 2015 

100% Dec. 31, 2015 

2006 

100% Dec. 31, 2016 

On-road without VDECS Installed by 

December 31, 2006

On-road with VDECS Installed by 

December 31, 2006 

Model 

Year 

% of Model Year Compliance 

Deadline 

Model 

Year 

% of Model Year Compliance 

Deadline 

Greater of 3 or 25% Dec. 31, 2007 Greater of 3 or 25% Dec. 31, 2008 

Pre-2000 50% Dec. 31, 2008 50% Dec. 31, 2009 

100% Dec. 31, 2009 

Pre-2000 

100% Dec. 31, 2010 

Greater of 3 or 25% Dec. 31, 2008 Greater of 3 or 25% Dec. 31, 2009 

2000 50% Dec. 31, 2009 50% Dec. 31, 2010 

100% Dec. 31, 2010 

2000 

100% Dec. 31, 2011 

Greater of 3 or 25% Dec. 31, 2009 Greater of 3 or 25% Dec. 31, 2010 

2001 50% Dec. 31, 2010 50% Dec. 31, 2011 

100% Dec. 31, 2011 

2001 

100% Dec. 31, 2012 

Greater of 3 or 25% Dec. 31, 2010 Greater of 3 or 25% Dec. 31, 2011 

2002 50% Dec. 31, 2011 50% Dec. 31, 2012 

100% Dec. 31, 2012 

2002 

100% Dec. 31, 2013 

Greater of 3 or 25% Dec. 31, 2011 Greater of 3 or 25% Dec. 31, 2012 

2003 50% Dec. 31, 2012 50% Dec. 31, 2013 

100% Dec. 31, 2013 

2003 

100% Dec. 31, 2014 

Greater of 3 or 25% Dec. 31, 2012 Greater of 3 or 25% Dec. 31, 2013 

2004 50% Dec. 31, 2013 50% Dec. 31, 2014 

100% Dec. 31, 2014 

2004 

100% Dec. 31, 2015 

Greater of 3 or 25% Dec. 31, 2013 Greater of 3 or 25% Dec. 31, 2014 

2005 50% Dec. 31, 2014 50% Dec. 31, 2015 

100% Dec. 31, 2015 

2005 

100% Dec. 31, 2016 

Greater of 3 or 25% Dec. 31, 2014 Greater of 3 or 25% Dec. 31, 2015 

2006 50% Dec. 31, 2015 50% Dec. 31, 2016 

100% Dec. 31, 2016 

2006 

100% Dec. 31, 2017 
7 

Several examples follow: 

Example 1: An owner or operator has an in-use fleet of four vehicles with pre-2003 

model-year certified off-road engines that have not been equipped with VDECS prior to 

December 31, 2006. The owner or operator would be required to bring three of its 

vehicles into compliance by December 31, 2007 and the fourth vehicle by December 31, 

2008. 

Example 2: An owner or operator has an in-use fleet of four vehicles. Two of the 

vehicles are equipped with pre-2003 model-year certified off-road engines and were not 

equipped VDECS prior to December 31, 2006. The other two vehicles have pre-2000 

model year certified on-road engines without VDECS. Again, the owner would be 

required to bring at least three vehicles into compliance by December 31, 2007. In 

selecting the three vehicles to convert in 2007, the owner or operator would be required 

to convert the two pre-2003 model-year off-road engines because the regulation 

requires that 50 percent of these vehicles come into compliance by the end of 2007. 

The owner or operator would then have until December 31, 2009 to bring the last pre2000 model-year on-road vehicle into compliance. 

Example 3: An owner or operator has an in-use fleet of eight vehicles. Two of the 

vehicles have pre-2003 model-year certified off-road engines that have not had VDECS 

installed prior to December 31, 2006. Two others are 2001 model-year on-road engines 

that also did not have VDECS installed prior to December 31, 2006. The other four 

engines have had VDECS installed prior to December 31, 2006. Of these four, two are 

2004 model-year off-road engines and two are 2005 on-road engines. The regulation 

requires the owner or operator to bring the two pre-2003 off-road engines into 

compliance by December 31, 2007. It would also need to bring one additional vehicle 

from the other classifications into compliance on that date, because the regulation 

requires at least three vehicles from the entire fleet be converted in the first year that an 

owner or operator commences compliance. If the owner or operator chose to convert 

one of the two 2001 on-road vehicles into compliance in 2007, it would not need to bring 

the second into compliance until December 31, 2011, when 100 percent of that category 

must comply. It would then need to have one of the two 2004 vehicles with off-road 

engines equipped with VDECS converted by December 31, 2013 and the other by 

December 31, 2014. By December 31, 2015, one of the 2005 model year on-road 

engines would need to be in compliance, with the other brought into compliance by 

December 31, 2016. 

b. Non-Yard Trucks

The CHE Regulation also requires in-use (non-newly acquired) non-yard trucks to use 

BACT to meet specified performance standards based on the vehicle’s application. The 

regulation identifies three categories of non-yard trucks: basic container handling 
8

equipment,18 bulk cargo handling equipment, and RTG cranes. As with yard trucks, the 

regulation sets forth a time table for compliance depending upon the size and modelyear composition of the in-use fleet.19

 

Compliance Date20

Non-Yard Truck Fleets of 4 or More 

Engine Model 

Years 

Non-Yard Truck 

Fleets of 3 or Fewer 

First 3 or 25% 

(whichever is greater) 50% 75% 100% 

pre-1988 2007 2007 2008 2009 2010 

1988-1995 2008 2008 2009 2010 2011 

1996-2002 2009 2009 2010 2011 2012 

2003-2006 2010 2010 2011 2012 2013 

Fleets of three or fewer vehicles must be in full compliance by December 31 of the year 

designated for compliance for the model year of the vehicles’ engines. For example, an 

owner or operator has a fleet of three non-yard truck vehicles – one with a pre-1988 

model-year engine, one with a 1990 model-year engine, and one with a 2002 model 

year engine. The owner or operator must have the pre-1988 engine in compliance by 

December 31, 2007, the 1990 engine by the end of 2008, and the 2002 engine by 

December 31, 2009. 

Owners and operators of fleets of four or more vehicles are allowed to phase-in the 

conversion of their fleets, providing them with more time in which to comply. In the first 

year in which compliance is required, the owner or operator must at least bring three 

vehicles or 25 percent of its fleet, whichever is greater, into compliance. Increasing 

percentages of the fleet would have to be in compliance over the next several years. 

Examples follow: 

Example 1: The in-use non-yard fleet is comprised of 100 vehicles, all of which are 

equipped with pre-1988 model-year engines. The owner or operator of the fleet must 

bring 25 engines into compliance by December 31, 2007, 25 more engines by 

December 31, 2008, 25 more engines by December 31, 2009, and the final 25 engines 

by December 31, 2010. 

Example 2: The in-use non-yard fleet is comprised of 100 vehicles, 50 of which have 

pre-1988 model-year engines and 50 of which have 1988-1995 model-year engines. 

The owner or operator would have to bring 13 pre-1988 engines into compliance by 

December 31, 2007; 12 more pre-1988 engines and 13 1988-1995 engines by 

 

18 While forklifts are used to handle both containerized and bulk cargo, for the purposes of this regulation, 

they are considered to be part of the basic container handling equipment category. 

19 Section 2479(e)(3), Table 3: Compliance Option Compliance Schedule for Non-Yard Truck In-Use 

Mobile Cargo Handling Equipment. 

20 Compliance date refers to December 31st of the year indicated. 
9

December 31, 2008; 13 pre-1988 and 12 1988-1995 engines by December 31, 2009; 

the final 12 pre-1988 and 13 1988-1995 engines by December 31, 2010; and the final 

12 1988-1995 engines by December 31, 2011. 

Example 3: The in-use non-yard fleet is comprised of 100 vehicles, 25 of which have 

pre-1988 model-year engines, 25 of which have 1988-1995 model-year engines, and 50 

of which have 1996-2002 model year engines. The owner or operator would have to 

bring six pre-1988 engines into compliance by December 31, 2007; seven more pre1983 engines and six 1988-1995 engines by December 31, 2008; six pre-1988, seven 

1988-1995 engines, and 13 1996-2002 engines by December 31, 2009; the final 6 pre1988, six 1988-1995 engines, and 12 1996-2002 engines by December 31, 2010; and 

the final six 1988-1995 engines and 13 1996-2002 engines by December 31, 2011; and 

12 1996-2002 engines by December 31, 2012. 

Owners and operators of each category have three BACT-based compliance options for 

meeting the in-use performance requirements for non-yard trucks. While some of the 

BACT options are the same for the different vehicle categories, others differ because of 

the types of vehicles in each category, which reflect differences in design, engines 

used, operational variance, VDECS availability, ability to repower the equipment, 

average useful life of the vehicles and engines, the level of diesel PM emission health 

risk posed, capital costs, and cost-effectiveness. 

i. Basic Container Handling Equipment 

Basic container handling equipment consist of top handlers, side handlers, reach 

stackers, forklifts, straddle carriers, and any other equipment type (except RTG cranes) 

that handles cargo containers. The first compliance option allows an owner or operator 

to use an engine or power system – including diesel, alternative fueled, or heavy-duty 

pilot ignition engine – certified to the 2007 or later model year on-road or the Tier 4 offroad engine standards for the rated horsepower and model year of the engine. 21 The 

second option allows an owner or operator to bring basic container handling equipment 

into compliance by using a pre-2007 model year certified on-road engine or a certified 

Tier 2 or Tier 3 off-road engine and applying the highest level VDECS available for the 

type of engine is used. But if no VDECS or a Level 1 VDECS is the highest level 

available, the owner or operator must also upgrade the vehicle’s engine to either a 

certified Tier 4 off-road engine or install a Level 3 VDECS by December 31, 2015.22

 

The third option allows the owner or operator to use a pre-Tier 1 or Tier 1 off-road 

engine equipped with the highest level VDECS available. But, as with the second 

option, if no VDECS or if a Level 1 or 2 VDECS is the highest level available, the owner 

or operator must upgrade the equipment’s engine to either a certified Tier 4 off-road 

engine or a Level 3 VDECS by December 31, 2015.23 

 

21 Section 2479(e)(3)(B)1.a. 

22 Section 2479(e)(3)(B)1.b. 

23 Section 2479(e)(3)(B)1.c. 
10

ii. Bulk Cargo Handling Equipment 

Bulk cargo handling equipment consist of dozers, loaders, excavators, mobile cranes, 

sweepers, railcar movers, aerial lifts, and any other equipment type (except forklifts) that 

handles non-containerized or bulk cargo. As with basic container handling equipment, 

the CHE Regulation requires the owner or operator to select one of three BACT 

compliance options. 

The first option is identical to that required for basic containerized equipment: use of 

engines certified to the 2007 or later model year on-road engine standards or the Tier 4 

off-road engine standards for the engine’s rated horsepower and model year. 24 While 

the 2007 model year certified on-road engine is not available in the higher horsepower 

ranges, it may be available for some of the equipment in this category in the lower 

horsepower ranges. The second option is also the same as that for container handling 

equipment: the owner or operator may use a pre-2007 model year certified on-road 

engine or a certified Tier 2 or 3 off-road engine for the rated horsepower and model year 

of the engine, and the engine must be equipped with the highest level of VDECS 

available. Again, if no VDECS is available or if the highest level VDECS available is 

only Level 1, then by December 31, 2015, the owner operator must either replace the 

engine with a Tier 4 certified off-road engine or have a Level 3 VDECS installed.25 The 

third option allows the owner or operator use a pre-Tier 1 or certified Tier 1 off-road 

engine with the highest level VDECS available, but if no VDECS is available or if the 

highest available VDECS is only Level 1, the owner or operator must either replace the 

engine with a Tier 4 certified off-road engine or install a Level 3 VDECS by December 

31, 2015.26

 iii. RTG Cranes 

RTG cranes are in a category of their own because of their unique operation, size, 

costs, effective life, and retrofit options. While there is a limited selection of VDECS 

currently available for this category of equipment, ARB is coordinating a study to identify 

and demonstrate high efficiency retrofit emission control systems for RTG cranes (as 

well as for top handlers and side handlers) that should soon lead to verification of 

several models.27 

As with the other two categories of non-yard truck equipment, the CHE Regulation

requires the owner or operator to select one of three BACT compliance options. Like 

the previous two categories, the first option allows the owner or operator to use an 

engine or power system certified to the 2007 or later model year on-road or Tier 4 offroad engine standards for the rated horsepower and model year of the engine.28 While 

 

24 Section 2479(e)(3)(B)2.a. 

25 Section 2479(e)(3)(B)2.b. 

26 Section 2479(e)(3)(B)2.c. 

27 Additional information on this project is available in Appendix H of the Staff Report. 

28 Section 2479(e)(3)(B)3.a. 
11

2007 model-year certified on-road engines will not immediately be available for most 

RTG cranes because of their high horsepower ratings, they may be available for some 

of the smaller horsepower RTG cranes. The second option allows the owner or 

operator to use either a pre-2007 model year certified on-road or certified Tier 2 or 3 offroad engine equipped with the highest level VDECS available.29 The third option allows 

the owner or operator to use a pre-Tier 1 off-road engine or a certified Tier 1 off-road 

engine equipped with the highest level VDECS available. If no VDECS is available or if 

the highest level VDECS available is a Level 1 or 2, then the owner or operator must 

also have the engine either replaced with a Tier 4 certified off-road engine or have a 

Level 3 VDECS installed by either December 31, 2015 or the model year of the initially 

compliant engine plus 12 years, whichever is later. 30 

B. Compliance Flexibility

In addition to the flexibility provided to owners and operators to achieve compliance with 

the emission standards through the various BACT options, the CHE Regulation

expressly provides other means to assist them in complying with the regulation. 

1. Extensions

Owners and operators may be eligible to receive additional time beyond the specified 

compliance dates set forth in the regulation. There are five different types of 

compliance extensions available; they, however, may not be combined or used 

consecutively, unless expressly permitted. Owners and operators may apply for the 

following types of extensions: (1) a one year extension if an engine is within one year of 

retirement;31 (2) an annual extension for up to two years for non-yard truck mobile cargo 

handling equipment if no VDECS is available for the specific equipment;32 (3) an annual 

extension, through December 31, 2005, for use of experimental diesel particulate matter 

emission control strategies if no VDECS is available for a non-yard truck mobile cargo 

handling equipment engine or if the available VDECS is not feasible for a specific 

vehicle application;33 (4) an extension excusing an owner or operator from compliance 

until receipt or installation of ordered complying product (i.e., new equipment, engine, 

VDECS) if the owner or operator had entered into a contractual order with an 

equipment, engine or VDECS manufacturer at least six months prior to the compliance 

date of the regulation but has not received the complying product by the compliance 

date because of manufacturer delays;34 and (5) an extension for up to three years for 

yard trucks that have been retrofitted with VDECS prior to December 31, 2005 by using 

incentive funding from public agencies (i.e., NOx and PM Bank or Carl Moyer Program) 

 

29 Section 2479(e)(3)(B)3.b.. 

30 Section 2479(e)(3)(B)3.c.. 

31 Section 2479(f)(1). 

32 Section 2479(f)(2). 

33 Section 2479(f)(3). 

34 Section 2479(f)(4). 
12

if the funding program stipulated minimum use requirements that would expire after the 

required compliance date.35

 

2. Alternative Compliance Plan for Non-Yard Truck Cargo Handling Equipment

The regulation includes an alternative compliance plan (ACP) option for owners and 

operators of non-yard truck cargo handling equipment that would allow them to 

demonstrate that equivalent emission reductions can be achieved through the use of 

alternative strategies.36 Alternative strategies can include equipment engine 

modifications, exhaust treatment control, engine re-powering, equipment replacement, 

the use of alternative fuels or fuel additives, and operational controls. Applications for 

the ACP must be approved by the Executive Officer, and until such approval is granted, 

the owner or operator would be required to meet the performance requirements in 

subsection (e)(3). 

C. Other Requirements

1. In-Use Fuel Requirements

The CHE Regulation requires owners and operators to use one of several specified 

fuels, including CARB diesel fuel, alternative fuels, Executive Officer-approved 

alternative diesel fuel that has been approved under the Verification Procedure, CARB 

diesel fuel used in conjunction with fuel additives that have been approved under the 

Verification Procedure, or any combination of the above. 

 2. Record-Keeping and Reporting Requirements

For enforcement purposes, the CHE Regulation contains record-keeping and reporting 

requirements. Owners and operators are required for all mobile cargo handling 

equipment in their fleet to maintain records; affix a label (or an alternative method 

approved by the Executive Officer) to each vehicle with information regarding, among 

other things, the compliance strategy used or, alternatively, planned compliance date; 

submit a compliance plan and annual statement of compliance; and perform annual 

reporting by submitting to the ARB contact information, location of their equipment, and 

equipment populations by model year group and type. These requirements will enable 

staff to monitor the implementation of the regulation and provide more accurate 

estimates of pollutant reductions. 

 

35 Section 2479(f)(5). 

36 Section 2479(h). 
13

III. WAIVER/AUTHORIZATION ANALYSIS 

A. Introduction

 1. Waivers 

Section 209(b) of the CAA sets forth the protocol for granting California waivers to the 

general preemption of section 209(a), which prohibits states and their local subdivisions 

from adopting and enforcing standards and other requirements relating to the control of 

emissions from new motor vehicles and new motor vehicle engines. Under section 

209(b), the Administrator must grant a waiver to California if the state has determined 

that its 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 procedures are not consistent 

with section 202(a) of the CAA. 

In considering whether to grant waivers for 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 welfare as applicable federal standards and, 

(2) whether the enforcement procedures are consistent with section 202(a).37

The Administrator has applied a similar analysis in finding that amendments to a 

standard or regulation are within the scope of a previously granted waiver. 

If California acts to amend a previously waived standard or accompanying 

enforcement procedure, the change may be included within the scope of 

the previous waiver if it does not undermine California’s determination that 

its standards, in the aggregate, are as protective of public health and 

welfare as comparable Federal standards, does not affect the consistency 

of California’s requirements with section 202(a) of the [CAA], and raises 

no new issues affecting the Administrator’s previous waiver 

determination.38

 

37 Motor and Equipment Manufacturers Association v. EPA (MEMA) (D.C. Cir. 1979) 627 F.2. 1095, 1111, 

1113. 

38 Decision Document accompanying scope of waiver determination in 51 Fed.Reg. 12391 (April 10, 

1986), at p. 2 (footnotes omitted); see also 46 Fed.Reg. 36742 (July 15, 1981). 
14

2. Authorizations 

Section 209(e)(2) of the CAA sets forth the protocol for the Administrator granting 

California authorization to adopt and enforce standards and other requirements relating 

to controlling emissions from new and in-use nonroad engines that are not otherwise 

specifically preempted from under 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 all other nonroad engines if California determines that the state’s 

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

applicable federal standards, unless he finds that: (1) the protectiveness finding of the 

state is arbitrary and capricious; (2) California does not need separate state standards 

to meet compelling and extraordinary conditions; or (3) the state standards and 

accompanying enforcement procedures are not consistent with CAA section 209. 

Section 209(e)(2) of the CAA, like section 209(b), requires California to obtain the 

Administrator’s approval (i.e., waiver or authorization). In reviewing a California request 

for authorization under section 209(e)(2), the Administrator must consider nearly 

identical criteria as under section 209(b). In light of these almost identical protocols, 

U.S. EPA has confirmed that it would similarly interpret sections 209(b) and (e) where 

the language is similar.39 

One deviation in language is that CAA section 209(e)(2) requires that the Administrator 

must consider not only consistency with CAA section 202(a) – as required under section 

209(b)(1)(C) – but also other subsections of section 209. In its 209(e) Final Rule, U.S. 

EPA interpreted this provision to require that California’s standards and accompanying 

enforcement provisions must also be consistent with sections 209(a) and 209(e)(1).40 

As the Administrator stated in a recent authorization: 

In [o]rder to be consistent with section 209(a), California’s [nonroad] 

standards and enforcement procedures must not apply to new motor 

vehicles or new motor vehicle engines. Secondly, California’s nonroad 

standards and enforcement procedures must be consistent with section 

209(e)(1), which identifies the categories permanently preempted from 

state regulation. California’s nonroad standards and enforcement 

procedures would be considered inconsistent 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 [authorization requests], California’s 

nonroad standards and enforcement procedures must be consistent with 

 

39 Air Pollution Control; Preemption of State Regulation 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). 

40 59 Fed.Reg. 36969, 36983 (July 20, 1994). 
15

section 209(b)(1)(C). EPA will review nonroad authorization requests 

under the same “consistency” criteria that are applied to motor vehicle 

waiver requests. Under section 209(b)(1)(C), the Administrator shall not 

grant California’s motor vehicle waiver if she finds that California 

standards and accompanying enforcement procedures are not consistent 

with section 202(a)” of the [CAA].41 

As indicated in the above quotation, the Administrator has applied a similar analysis in 

finding that amendments to a standard or regulation are within the scope of a previously 

granted authorization.42 

B. 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 

regulation and protectiveness determination are presumed to satisfy the criteria for 

granting a waiver or authorization, and the burden to show otherwise is on those 

persons challenging the waiver request.43 As held by the court in MEMA and long 

followed by U.S. EPA: 

The language of the statute and its legislative history indicate that 

California’s regulations and California’s determination that they comply 

with the statute, when presented 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.44

2. The Scope of the Waiver/Authorization 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 protective of public health and welfare as applicable federal 

standards, the Administrator must grant the waiver or authorization unless one of the 

three specified findings can be made. 

This reading of the statute is consistent with the decision in MEMA and prior U.S. EPA 

waiver decisions interpreting CAA section 209(b), which hold that the review of 

 

41 65 Fed.Reg. 69763, 69764 (November 20, 2000). 

42 Id., 69763-69764.

43 Motor Equipment Manufacturers Association v. EPA (MEMA) (D.C. Cir. 1979) 627 F.2d 1095, 1121. 

44 Id.; See also Decision Document accompanying OBD II Waiver Determination, at p. 15-16. 
16

California’s decision to adopt separate standards is a narrow one.45 In granting the 

waiver for the OBD II regulation in 1996, Administrator 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 criteria that would dictate not granting the waiver.46 Much earlier 

Administrator William D. Ruckleshaus stated: 

The law makes it clear that the waiver request cannot be denied unless 

the specific findings designated in the statute can properly be made. The 

issue of whether a proposed California requirement is likely to result in 

only marginal improvement in air quality not commensurate with its cost or 

is otherwise an arguably unwise exercise of regulatory power is not legally 

pertinent to my decision under section 209 . . . . 47

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

As indicated in the waiver decisions cited above, in granting waivers to California’s 

motor vehicle program, U.S. EPA has routinely deferred to the policy judgments of 

California’s decision-makers. U.S. EPA has recognized that the intent of Congress in 

creating a limited review of California’s determinations regarding its need for separate 

standards was to ensure that the federal government did not second-guess the wisdom 

of state policy.48 Administrators have recognized that the deference is wide-ranging: 

The structure and history of the California waiver provision clearly indicate 

both a Congressional intent and an U.S. EPA practice 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 development 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 costs, 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. Since a balancing of these risks and costs 

 

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

46 61 Fed.Reg. 53371 (October 11, 1996). 

47 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. 

48 40 Fed.Reg. 23102, 23103. 
17

against the potential benefits 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.49

C. The Requirements for Newly Acquired Yard Trucks Registered for On-Road 

Operation Are Covered by the Previously Granted Waiver for 2007 Heavy-Duty 

Diesel Vehicles

To the extent the requirements for newly acquired yard trucks registered for on-highway 

operation requires the purchase, lease, or rental of new on-road motor vehicle engines 

and vehicles, the requirements are covered by the waiver granted by U.S. EPA for 

California’s regulations establishing emission standards for 2007 and subsequent model 

year on-road heavy-duty diesel engines. 50 The CHE Regulation requires that on or 

after January 1, 2007, newly acquired yard trucks registered for highway operation must 

be equipped with new 2007 or subsequent model year on-road heavy-duty engines. To 

meet the requirements in the first year, most owners and operators will likely have to 

acquire new motor vehicles and engines, and such requirements arguably fall under the 

preemption of CAA section 209(a), for which California must obtain a waiver.51 If a 

waiver is required, the Administrator should confirm that it falls within the scope of the 

previously granted waiver. 

1. Protectiveness 

In adopting Resolution 05-62, the Board expressly found that the requirements for newly 

acquired registered yard trucks fall within the scope of the 2007 heavy-duty diesel 

engine waivers in that the requirements applicable to such vehicles do not undermine 

the Board’s previous determination that its emission standards, in the aggregate, are 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 CAA; and raise 

no new issues affecting the Administrator’s previous waiver determination. 

 

49 40 Fed.Reg. 23102, 23104 (emphasis added). See also 58 Fed.Reg. 4166, Decision Document, at 

p. 64. 

50 California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption; Notice of 

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

51 See EMA v. South Coast Air Quality Management District (2004) 541 U.S. 246, holding that 

requirements regarding the acquisition of vehicles by a vehicle fleet operator do not escape CAA 

section 209(a) preemption just because they address the purchase of vehicles rather than their 

manufacture or sale. In later years, the need to purchase new engines and vehicles under the CHE 

Regulation becomes increasingly less necessary as an owner or operator should be able to purchase 

non-new model year engines and vehicles so long as they meet the 2007 model year emission standards. 

To the extent the in-use performance standards apply to non-new yards trucks registered for on-road 

operation, a waiver is not required. CAA section 209(a) only preempts states from adopting or attempting 

to enforce standards relating to the control of emissions from new motor vehicles or new motor vehicle

engines. If the requirements do not apply to new engines and vehicles, they do not require a waiver 

under CAA section 209(b). 
18

In reviewing California’s protectiveness finding, the Administrator may not deny a waiver 

on protectiveness grounds unless he or she finds that those challenging the waiver 

have presented clear and convincing evidence that the Board’s protectiveness finding is 

arbitrary and capricious.52 This standard is in accord with “the congressional intent to 

provide California with the broadest possible discretion in setting regulations it finds 

protective of the public health and welfare.”53 There is no question that the Board’s 

finding is justified and correct in that ARB adopted heavy-duty engine standards that 

parallel the federal 2007 heavy-duty emission standards,54 and the mobile cargo 

handling requirements for newly acquired registered yard trucks do not modify those 

requirements. Accordingly, California was neither arbitrary nor capricious in finding that 

the adopted requirements for registered yard trucks are, in the aggregate, at least as 

stringent as comparable federal regulations. 

2. Consistency with CAA Section 202(a) 

The requirement that registered yard trucks use 2007 and subsequent model-year onroad engines is consistent with section 202(a) of the CAA. U.S. EPA has historically 

interpreted consistency with section 202(a) under a two-prong test: (1) that there is 

sufficient lead time to permit the development of technology necessary to meet the 

standards and other requirements, giving appropriate consideration to the cost of 

compliance in the time frame provided, and (2) that the California and federal test 

procedures are sufficiently compatible to permit manufacturers to meet both the state 

and federal test requirements with one test vehicle or engine.55

 

Yard trucks registered for on-road operation are rightfully already subject to ARB’s onroad heavy-duty exhaust emission standards codified at title 13, CCR, section 1856.8, 

and all trucks registered for on-road operation are required to be equipped with certified 

engines. The CHE Regulation is intended to ensure that any yard truck – regardless of 

model year – newly acquired, on or after January 1, 2007, be equipped with a 2007 or 

subsequent certified model year on-road engine. The technological feasibility for 

applying these engines to yard trucks is not at issue. There is no dispute that certified 

on-road engines have been used in yard truck applications for years. No stakeholder, 

including engine or vehicle manufacturers or end users of the vehicles, have disputed 

this or have raised any concerns regarding the feasibility of using certified engines in 

yard truck applications. 

The CHE Regulation does not modify the test procedures for certification of the 

California 2007 and subsequent model-year heavy-duty engines. Accordingly, the 

 

52 See MEMA, 627 F.2d at 1120-1122. 

53 Id., at 1122. 

54 40 CFR Part 86, § 86.007 et seq. 

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

Decision). 
19

Administrator’s determination in granting the waiver of California’s 2007 heavy-duty 

emission standards is not affected. 

 

For the foregoing reasons, the Administrator should confirm that the CHE Regulation 

requirements for newly acquired yard trucks falls within the scope of the previously 

granted 2007 and subsequent model-year heavy-duty engine emission standards 

waiver. 

D. The Requirements for Newly Acquired Non-Yard Trucks Registered for Operation 

on Public Roadways Are Similarly Covered by the Previously Granted Waiver for 

2007 Heavy-Duty Diesel Vehicles

As with newly acquired yard trucks, the CHE Regulation requires that, on or after 

January 1, 2007, newly acquired non-yard trucks that are registered for on-highway 

operation must be equipped with an on-road engine meeting the 2007 and subsequent 

model year on-road emission standards.56 Being registered for on-road operation, 

these vehicles should already be subject to the 2007 on-road heavy-duty regulation, but 

to the extent that they have been mistakenly registered with certified off-road engines, 

this regulation will clear up any confusion. As with on-road yard trucks, the 

requirements effectively mandate in the first year of the regulation that newly 

purchased, leased, and rented vehicles be equipped with new 2007 model-year 

engines. Such requirements arguably fall within the scope of the CAA section 209(a) 

preemption and would require ARB to obtain a waiver under CAA section 209(b). To 

the extent that this is the case, the requirements reasonably fall within the scope of the 

2007 on-road heavy-duty diesel waiver.57

 

E. The Requirements for Newly Acquired Off-Road Yard Trucks Should Be Analyzed 

Similarly to a Within-the-Scope Authorization Request

The CHE Regulation requires that on or after January 1, 2007, newly acquired off-road 

yard trucks must be equipped with a 2007 or subsequent model year on-road heavyduty engine or an off-road engine certified to meet the final Tier 4 off-road emission 

standards for the rated horsepower.58 ARB respectfully requests that the Administrator

analyze these options in a manner similar to a “within the scope” of a preexisting CAA 

section 209 determination. The special circumstances, which are explained below, 

surrounding the adopted emission standard options for newly acquired off-road yard 

trucks suggest that such an analysis be applied here. 

 

56 Section 2479(e)(1)(B)1.a. 

57 See discussion above in section III.C. regarding registered on-road yard trucks. 

58 Section 2479(e)(1)(B), referencing the on-road emission standards at title 13, CCR, section 1956.8 and 

the off-road emission standards at title 13, CCR, section 2423. 
20

1. The Administrator Should Confirm that Option 1, Use of a Certified On-Road 

Engine, Falls within the Scope of a Preexisting Waiver 

As stated above, ARB and U.S. EPA adopted parallel emission standards for 2007 and 

subsequent model-year on-road heavy-duty diesel engines. And, the CHE Regulation

requires that all yard trucks registered for on-road operation that are newly acquired 

after January 1, 2007 be equipped with 2007 and subsequent model year certified onroad engines. 

Like on-road yard trucks, off-road yard trucks can be readily equipped with on-road 

heavy-duty engines. Indeed, since at least the 2000 model year, yard truck 

manufacturers have provided buyers with the option of equipping their off-road vehicles 

with on-road engines.59 The primary difference between on-road and off-road yard 

trucks is that off-road vehicles are typically equipped with governors to regulate their 

speed and do not have all the requisite safety devices to allow them to operate on 

public highways. Except to the extent that yard trucks registered for on-road operation 

do operate to some extent on public roadways, the typical operational environment for 

both on- and off-road yard trucks is on paved surfaces at port and intermodal rail yard 

facilities. 

A literal reading of CAA section 209(e) would require that California obtain a new 

authorization for option 1, even though EPA has already issued a waiver for 2007 and 

subsequent model year heavy-duty engines. ARB believes that such a literal reading is 

unduly rigid and restrictive and would serve no beneficial purpose while unjustifiably 

delaying ARB enforcement of this regulatory option. As recognized by U.S. EPA, a 

subsequently adopted California regulation or amendments to an existing regulation 

may fall within the scope of a previously granted waiver if the regulation/amendments 

do not undermine California’s initial protectiveness determination, are consistent with 

the technical feasibility requirements of CAA section 202(a),60 and raise no new issues 

not previously considered. 

Here, although Option 1 technically falls under the authority of CAA section 209(e), all of 

the criteria for a within the scope finding are met. First, and foremost, U.S. EPA has 

granted a waiver under section 209(b) for the emission standards and other 

requirements for 2007 and subsequent model-year on-road heavy-duty diesel engines. 

Option 1 allows owners and operators of off-road yard trucks to meet the requirements 

of section 2479(e)(1)(B)1.b. by purchasing vehicles equipped with certified on-road 

engines that are covered by the 2007 heavy-duty waiver issued by U.S. EPA. 

 

59 Staff Report at p. V-3. 

60 To the extent that the Administrator believes that since the option applies to nonroad vehicles, he must 

also consider whether the requirement is fully consistent with CAA section 209, no inconsistencies exist. 

Option 1, on its face, does not apply to motor vehicles as defined in 40 CFR §85.1703 or CAA section 

209(e)(1) preempted new nonroad engines under 175 horsepower used in farm or construction vehicles 

or equipment or new locomotives and locomotive engines. 
21

a. Protectiveness 

In Resolution 05-62, the Board found that to the extent the CHE Regulation affects 

nonroad vehicles or nonroad engines as defined in CAA section 216(10) and (11), the 

emission standards and other requirements related to the control of emissions in the 

regulation approved herein are, in the aggregate, at least as protective of public health 

and welfare as applicable federal standards. The requirements do not undermine 

previous protectiveness findings made by ARB in adopting its Tier 4 off-road CI 

emission standards in 2005, or the 2007 model-year heavy-duty on-road diesel 

emission standards adopted in 2003. By requiring newly acquired off-road vehicles to 

be equipped with 2007 and later on-road heavy-duty diesel engines -- with emission 

standards significantly more stringent than presently required for new off-road engines – 

Option 1 does not undermine ARB’s previous protectiveness determinations. 

b. Consistency 

The requirements of section 2479(e)(1)(A)1.b. are not inconsistent with CAA 

section 209. By their terms the requirements apply to neither motor vehicles preempted 

under CAA section 209(a) nor nonroad engines preempted under CAA section 

209(e)(1).61 Further, the requirements are consistent with CAA section 202(a) as 

required by 209(b)(1)(C). As stated, manufacturers of off-road yard trucks have been 

offering the option of installing on-road engines in off-road yard trucks since at least 

2000. Neither vehicle nor engine manufacturers have raised any concerns that 2007 

on-road engines cannot be used in 2007 off-road yard trucks or that 2007 on-road 

engines will not be available for such applications on or before January 1, 2007. Being 

that the 2007 on-road engines must be certified as on-road engines, ARB and U.S. EPA 

will be certifying the engines using the same test procedures that are used for all other 

on-road engines. Thus, no issue regarding inconsistent test procedures exists. Finally, 

since the on-road engines required for off-road yard trucks are identical to all other 

certified on-road engines, no new issues exist that were not considered in granting the 

2007 and subsequent model year waiver. The fact that the CHE Regulation applies to 

purchasers of newly acquired off-road yard trucks and not to manufacturers should not 

affect the above analysis. The crux of the analysis is whether sufficient lead time exists 

for development and availability of the new engines, giving appropriate consideration to 

costs. A key element in considering costs to the manufacturer is the increased cost to 

the manufacturer that will be passed onto the consumer. Accordingly, having found that 

the emission standards for new on-road engines are technologically feasible for the 

manufacturer, a similar finding should be made here as it applies to the purchaser. 

For the foregoing reasons and for purposes of administrative efficiency, the 

Administrator should find that Option 1 falls within the scope of the previously granted 

waiver for 2007 and subsequent model-year heavy-duty diesel engines. 

 

61 See section 2479(e)(1)(B), which makes it clear that these engines are not used in motor vehicles as 

defined by U.S. EPA in 40 CFR §85.1703) or engines under 175 hp used in farm and construction 

equipment and vehicles or engines used in locomotives. 
22

c. No New Issues 

For the reasons discussed above, the inclusion of Option 1 under the existing 2007 

heavy-duty diesel waiver would raise no issues that were not previously considered in 

granting the waiver. As stated, engine manufacturers have readily made available onroad engines for off-road yard truck applications. And stakeholders have raised no 

objection to the inclusion of Option 1 in this regulation, even though Option 1 may be 

the only feasible option in the early years of implementation. 

2. The Administrator Should Confirm that Option 2, Use of Final Tier 4 Off-Road 

Emission Standards, Be Treated Similarly to a Within the Scope Authorization 

Under Option 2, owners and operators may, alternatively, elect to equip off-road yard 

trucks with engines certified to the final Tier 4 off-road emission standards. For this 

requirement, as well as similar requirements for other off-road engines subject to the 

CHE Regulation, ARB respectfully requests that the Administrator apply the 

administrative construct that ARB first proposed for granting authorizations in its 

Request for Authorization Determination Pursuant to Clean Air Act Section 209(e) for 

Amendments to California’s Emission Standards and Test Procedures for New 1996 

and Later Off-Road Compression-Ignition Engines, dated July 16, 2004. 

Off-road yard trucks are typically equipped with engines greater than 175 horsepower 

(hp) (130 kilowatts (kW) per hour). As explained in ARB’s July 2004 authorization 

request new off-road CI engines, U.S. EPA granted initial authorization to California on 

September 21, 1995, to adopt and enforce emission standards and test procedures for 

heavy-duty CI engines equal to or greater than 175 hp.62 The authorized regulation 

established two tiers of emission standards for engines between 175 hp and 750 hp, 

and a single tier of standards for engines greater than 750 hp. 

Subsequent to issuance of the authorization, U.S. EPA, ARB, and the Engine 

Manufacturers Association signed a Statement of Principles (SOP) in 1996 to establish 

national emission standards for CI engines. Pursuant to the goals set forth in the SOP, 

U.S. EPA adopted emission control regulations for new nonroad CI engines on October 

23, 1998.63 ARB subsequently adopted comparable emission standards for California at 

a public hearing on January 28, 2000. In those amendments, the Board harmonized its 

emission standards to the federal nonroad diesel standards establishing three tiers of 

emission standards. In harmonizing with the federal regulation, ARB effectively delayed 

implementation of the previously adopted and authorized second tier of emission 

standards that were to be implemented in 1999. The amendments also established, in 

accord with the federal nonroad regulation, a third tier of emission standards for new 

 

62 60 Fed.Reg. 48981 (September 21, 1995). 

63 63 Fed.Reg. 56968 (October 23, 1998). 
23

engines starting in 2006. In July 2004, ARB requested that the Administrator confirm 

that these amendments were within the scope of the 1995 heavy-duty CI authorization. 

 

In June 2004, U.S. EPA adopted a fourth tier of emission standards for new nonroad 

engines.64 ARB then adopted, in December 2004,Tier 4 emission standards for new offroad CI engines that align with the federal nonroad emission standards. ARB is 

presently finalizing a letter requesting that the Administrator also confirm that these 

amendments fall within the scope of the previously granted 1995 authorization. 

As set forth in the July 2004 authorization request, ARB believes that that the 2000 

amendments (as well as the 2005 amendments) fall within the scope of the previously 

granted waiver – even though the amended emission standards are, in part, more 

stringent than the presently authorized standards. Importantly, these California 

standards are not more stringent than the adopted federal nonroad standards to which 

they are aligned, and also are in accord with the 1996 SOP. A finding that the 

amendments are within-the-scope of the previously issued authorization would provide 

administrative efficiency and flexibility to ARB while providing fairness to regulated 

manufacturers. ARB would be able to enforce its regulations fully and effectively, while 

minimum burdens would be placed on manufacturers that must in any event meet the 

federal regulations. As explained in the July 2004 authorization request and will be 

explained in the Tier 4 authorization request, the 2000 and 2005 amendments meet the 

criteria for confirming that an amendment is within the scope of a previously granted 

authorization: the amended standards are, in the aggregate, at least as protective of 

public health and welfare as applicable federal regulations, the California regulations 

are consistent with CAA section 202(a), and no new issues are presented that were not 

considered in U.S. EPA’s promulgation of its regulation. 

 

For similar reasons, the Administrator should find that the CHE Regulation’s optional 

requirement that owners and operators of newly acquired off-road yard trucks meet the 

final Tier 4 emission standards is within the scope of the previously granted 1995 

authorization. 

 

a. Protectiveness 

As stated above, in Resolution 05-62 the Board found that to the extent the CHE 

Regulation affects nonroad vehicles or nonroad engines as defined in CAA section 

216(10) and (11), the emission standards and other requirements related to the control 

of emissions in the regulation approved herein are, in the aggregate, at least as 

protective of public health and welfare as applicable federal standards. As with the 

Tier 1 through Tier 3 emission standards covered in the ARB’s July 2004 request for 

authorization, the Board adopted Tier 4 emission standards in 2005 for off-road CI 

engines that align with the federal Tier 4 nonroad diesel emission standards.65 Being 

 

64 Control of Emissions of Air Pollution from Nonroad Diesel Engines and Fuel , 69 Fed.Reg. 38957 (June 

29, 2004). 

65 Section 2423, amended December 7, 2005. 
24

that the federal and State Tier 4 emission standards are identical and that other 

requirements of the federal and state regulations closely parallel one another, the 

California standards and accompanying enforcement procedures are, in the aggregate, 

at least as protective as applicable federal provisions.66 As stated above, to the extent 

that the CHE Regulation applies to purchasers of new engines, that element should not 

should not affect this analysis. 

b. Consistency 

As stated above, the requirements for newly acquired off-road yard trucks, on their face, 

make it clear that they apply to neither on-road motor vehicles preempted under 

CAA section 209(a) nor nonroad engines preempted under CAA section 209(e)(1). 

Moreover, in adopting the federal nonroad diesel Tier 4 emission standards, the 

Administrator has fully considered and found that the subject engines meet the 

CAA section 202(a) requirements for sufficient lead-time for development and 

application of the requisite technology, giving appropriate consideration to costs. As 

indicated, the analysis should be the same for purchasers of new engines as for 

manufacturers. The costs passed on to purchasers by manufacturers are subsumed in 

the initial consideration of the costs to manufacturers. Additionally, the fact that such 

engines are not presently available should not deter from this analysis. Owners and 

operators have the alternative option of purchasing new on-road engines for newly 

acquired off-road yard trucks; and, as stated above, those engines are presently 

available for purchase. 

3. Alternatively, the Administrator Must Grant California a New Authorization for 

Options 1 and 2, If He Does Not Find a Within-the-Scope Type Construct 

Appropriate 

In the alternative, if the Administrator were to find that he cannot apply the suggested 

administrative construct to Options 1 and 2, ARB requests that he grant California a 

new authorization for the optional requirements. 

a. Protectiveness 

For the reasons previously stated, it cannot be reasonably challenged that the 

requirements as they apply to newly acquired off-road vehicles are at least as protective 

as applicable federal standards or that the Board’s determination was arbitrary or 

capricious. As stated, the requirements for newly acquired off-road yard trucks 

respectively parallel existing federal standards for heavy-duty on-road engines and nonroad CI engines and do not undermine the Board’s previous protectiveness findings. 

 

66 The one true difference between the federal and state regulations – ARB’s in-use enforcement protocol

– is at least as stringent as applicable federal procedures. 
25

b. The Requirements are Necessary to Meet Compelling and Extraordinary 

Circumstances 

In Resolution 05-62, the Board reaffirmed its longstanding position that California 

continues to need its own nonroad engine and vehicle program to meet serious air 

pollution problems unique to the State. The Administrator has previously and 

consistently recognized California’s unique needs when granting waivers for motor 

vehicles under CAA section 209(b) and authorization for California’s nonroad 

regulations under section 209(e). 

 

The relevant inquiry under CAA section 209(e)(2)(A)(ii) is whether California needs its 

own emission control program to meet compelling and extraordinary conditions, not 

whether any given standard is necessary to meet such conditions.67 In approving 

waivers under section 209(b), the Administrator has determined that: 

“[C]ompelling and extraordinary conditions” does not refer to levels of 

pollution directly, but primarily to the factors that tend to produce them: 

geographical and climatic conditions that, when combined with large 

numbers and high concentrations of automobiles, create serious air 

pollution problems.68

California and the South Coast and San Joaquin Valley air basins in particular continue 

to experience some of the worst air quality in the nation.69 The unique geographical and 

climatic conditions, and the tremendous growth in vehicle population and use that 

moved Congress to authorize California to establish separate vehicle standards in 1967, 

still exist today. I note that U.S. EPA recently confirmed the ARB’s judgment, on behalf 

of the State of California, on this matter.70

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 

 

67 49 Fed. Reg. 18887, 18892 (May 3, 1984).)

68

 Id.

69 See e.g. Approval and Promulgation of State Implementation Plans; California – South Coast, 

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

70

 California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption – Notice of 

Decision, 68 Fed.Reg.19811,19812 (April 22, 2003). 
26

attainment of the state standards, but in some cases, to result in 

worsening of air quality.71

In response to the undisputed severe air quality problems in California, the California 

Legislature authorized ARB to consider adopting, inter alia, standards and regulations 

for nonroad engines.72 Given the serious air pollution problems California faces and the 

resultant need to achieve the maximum reductions in emissions, the California 

Legislature and the ARB believe it is necessary to develop emission controls for 

nonroad sources as well as for motor vehicles.73 The ARB continues to find such 

previously uncontrolled nonroad engines to be significant emission sources for which 

controls are necessary to meet federal and state air quality standards.74 

By adding federal and state authority to regulate nonroad engines, Congress and 

California’s Legislature, respectively, acknowledged the increasing importance of 

reducing emissions from all mobile sources, including nonroad engines. The 

Administrator has repeatedly agreed with the ARB that California’s continuing 

extraordinary conditions justify separate California nonroad programs.75 Nothing in 

these conditions has changed to warrant a change in this determination. Accordingly, 

for all the aforementioned reasons, there can be no doubt of the continuing existence of 

compelling and extraordinary conditions justifying California’s need for its own nonroad 

vehicle and engine emissions control program. 

c. Consistency 

For the reasons set forth above, requirements of section 2479(e)(1)(A)b. are fully 

consistent with CAA section 209. 

F. The Administrator Should Find that Options 1 and 2 of the New Requirements for 

Newly Acquired Non-Yard Trucks Not Registered for On-Road Operation Are 

Within the Scope of Previously Granted Waivers and Authorizations and Should 

Grant a New Authorization for Option 3

On or after January 1, 2007, newly acquired non-yard trucks that are used exclusively 

off-road must be equipped with engines meeting one of the following options: 

Option 1: that have been certified to meet the on-road emission standards as specified 

in title 13, CCR, section 1956.8 for the model year in which the non-yard truck mobile 

cargo handling equipment and engines were newly purchased, leased, or rented; or 

 

71 California Health and Safety Code section 43000.5.

72 California Health and Safety Code sections 43013 and 43018. 

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

74 Resolution 03-37. See also Staff Report at Chapter II. 

75

 Utility Authorization, Decision Document, at p. 33; OHRV Authorization, Decision Document, at 

pp. 27-29; and HDOR Authorization, Decision Document, at pp. 16-18. 
27

Option 2: that have been certified to meet the Tier 4 off-road emission standards for the 

model year and rated horsepower of the newly purchased, leased, or rented non-yard 

truck mobile cargo handling equipment engines; or 

Option 3: if Options 1 and 2 are not available for a specific application and equipment 

type, the newly acquired non-yard truck must be equipped with engines that have been 

certified to meet the highest available level off-road diesel engine emission standards as 

specified in title 13, CCR, section 2423 for the rated horsepower and model year in 

which the equipment were newly purchased, leased, or rented, provided the owner or 

operator must install the highest level VDECS available within one year after the 

purchase, lease, or rental of the equipment, or, if a VDECS is not available by that date, 

within six months of when a VDECS becomes available.

76

 

1. To the Extent that New On-Road Heavy-Duty Engines May Be Used in NonYard Truck Applications, Option 1 Falls Within the Scope of a Previously 

Granted Waiver 

ARB respectfully requests that to the extent that certified on-road heavy-duty engines 

may be used in off-road non-yard truck applications, the Administrator should find that 

the Option 1 falls within the scope of the recently granted waiver for 2007 and later 

model-year heavy-duty engines, for the reasons discussed above in section III.E.1.77

 

2. To the Extent that Option 2 Applies to New CI Engines Equal to or Greater 

than 175 hp, It Falls Within the Scope of a Previously Granted Authorization 

Similarly, for the reasons discussed above in section III.E.2.,78 to the extent that off-road 

non-yard trucks use off-road CI engines equal to or greater than 175 hp, Option 2 falls 

within the scope of the 1995 off-road heavy-duty authorization. 

3. To the Extent that Option 2 Applies to New CI Engines Less than 175 hp, the 

Administrator Should Apply a New Construct Similar to a Within-the-Scope 

Determination 

It its July 2004 authorization request, ARB respectfully requested that the Administrator 

develop a new administrative construct for reviewing and applying authorization 

requests for regulations that harmonize and align with federal requirements. As stated, 

such a construct would allow California to fully implement and enforce its regulations to 

ensure the greatest emission benefits of the regulation. An approach that allows 

California to fully administer its program from the beginning rather than having a 

bifurcated system under which federal administration of the program would be handed 

off to California once the authorization is granted makes for a more efficient and fair 

process. Allowing ARB to assume immediate responsibility for administration of its own 

 

76 Section 2479(e)(1)(B)1.b. 

77 Supra., p. 21. 

78 Supra., p. 23. 
28

program should also prove advantageous for all stakeholders who, from a business 

perspective, would benefit from consistent application and approach of a 

state-administered program. 

ARB renews that request here. Although no authorization has previously been granted 

to California for CI engines less than 175 hp, the criteria for granting a within-the-scope 

determination are fully satisfied. First, the emission standards for new CI engines less 

than 175 hp are, in the aggregate, at least as stringent as comparable federal 

regulations for such engine ratings. Consistent with the 1996 SOP, ARB adopted the 

standards to harmonize with federal emission standards. Second, for the reasons set 

forth by U.S. EPA in adopting the federal Tier 4 standards, the standards are 

technologically feasible given the lead time provided and the costs incurred to comply. 

Third, the CHE Regulation does not modify the test procedures for certification of 

federal and state Tier 4 engines. The procedures are effectively identical and thus are 

not incompatible. Finally, no new issues are presented, even though the instant 

regulation is addressed to purchasers of non-yard trucks with CI engines installed and 

not the manufacturers of such engines. As previously stated, the same issues were 

fully explored and discussed in U.S. EPA’s consideration of technical feasibility for 

manufacturers in promulgating the federal standards. 

As discussed above, such a construct would allow California to fully implement and 

enforce its regulations to ensure the greatest emission benefits of the regulation. An 

approach that allows California to fully administer its program from the beginning rather 

than having a bifurcated system under which federal administration of the program 

would be handed off to California once the authorization is granted makes for a more 

efficient and fair process. Allowing ARB to assume immediate responsibility for 

administration of its own program should also prove advantageous for all stakeholders 

who, from a business perspective, would benefit from consistent application and 

approach of a state-administered program. 

4. If Options 1 And 2 Are Not Available for Non-Yard Truck Off-Road 

Applications, ARB Requests that the Administrator Grant a New Authorization 

for Option 3, and for Options 1 and 2 if He Cannot Confirm that the Latter 

Options Fall Within “Within-the-Scope” Type Constructs 

If Options 1 and 2 are not available for certain new non-yard truck off-road applications, 

ARB requests that the Administrator grant a new authorization for Option 3. Although 

ARB requested authorization for Tier 1, 2, and 3 emission standards in July 2004, it has 

not previously requested authorization for application of verified retrofit technologies 

(i.e., VDECS), nor has U.S. EPA considered VDECS in the context of non-yard truck 

applications. No basis exists for the Administrator to deny this request. 

ARB further requests that the Administrator issue a new authorization for Options 1 and 

2, if he cannot apply the within-the-scope type constructs as requested by ARB in 

sections III.F.1. through 3. above. 
29

a. Protectiveness 

As stated, in adopting Resolution 05-62 the Board found that to the extent the CHE 

Regulation affects off-road vehicles or engines, the emission standards and other 

requirements related to the control of emissions are, in the aggregate, at least as 

protective of public health and welfare as applicable federal standards. Federal and 

California emission standards for 2007 and subsequent model-year on-road heavy-duty 

engines are aligned as are federal and state Tier 4 emission standards for off-road CI 

engines. As described above, there should be no question that Options 1 and 2 are, in 

the aggregate, at least as stringent as federal emission standards for new on-road and 

nonroad vehicle engines. To the extent that Option 3 is the only available option for 

certain non-yard truck applications prior to introduction of new Tier 4 off-road engines, 

the requirements of Option 3 are more stringent than applicable federal regulations, 

which do not require VDECS for lower tier certified engines. 

b. The Requirements are Necessary to Meet Compelling and Extraordinary 

Circumstances79

For the reasons set forth in section III.E.3.b.,80 the Administrator cannot find that 

California does not need the adopted emission requirements for newly acquired nonyard off-road vehicles to meet compelling and extraordinary conditions. 

c. Consistency 

The requirements of title 13, CCR, section 2479(e)(1)(B) are fully consistent with CAA 

section 209. First, by its terms, the requirements only apply 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.81 The options are also fully consistent with CAA section 202(a). 

i. Option 1 

Option 1 is consistent with section 202(a) in that the required technology is feasible 

given the lead time provided and the costs of compliance. As stated, engine 

manufacturers will be producing engines meeting the 2007 on-road heavy-duty 

emission standards starting by January 2007. Moreover, Option 1 is only one of several 

options that an owner or operator may elect to use to comply with the regulation; to the 

extent that a non-yard, off-road vehicle can be equipped with an on-road engine, 

engines will be available at a compliance cost near that which is available for on-road 

vehicles. If an on-road engine cannot be used in a particular non-yard truck application, 

the owner and operator may elect to use one of the other two options. 

 

79 see supra, at pp. 25-26. 

80 Supra, at pp. 25-26. 

81 CAA § 209(e)(1). 
30

ii. Option 2 

In promulgating its nonroad Tier 4 emission standards, U.S. EPA fully considered and 

found the standards were achievable through application of technology which the 

Administrator determined will be available for the engines and vehicles to which such 

standards apply, giving appropriate consideration to the cost of applying such 

technology within the period of time available to manufacturers for compliance.82 While 

certification of interim Tier 4 standards for new off-road engines is not required prior to 

2008 and will be phased in for most engine categories over a four-year period, it is 

anticipated that some interim-certified Tier 4 engines will be available for purchase in 

2007. To the extent that such engines are available in the timeframes considered by 

U.S. EPA, Option 2 is consistent with CAA section 202(a). Indeed, the option does not 

accelerate compliance in that the CHE Regulation allows owners and operators to 

comply with the requirements by electing to use Option 3 if Tier 4 engines are not 

available before the compliance dates under the respective federal and state Tier 4 

regulations. 

iii. Option 3 

As stated, Option 3 provides additional compliance flexibility by allowing the owner or 

operator to use a lower certified tier engine if neither Options 1 nor 2 are available.83

 

Under the regulation, in such an event, the owner or operator must install the highest 

available certified tier engine on newly acquired non-yard trucks. If an owner or 

operator so elects, he must additionally commit to install the highest level of VDECS 

available within one year after the vehicle is acquired or, if a VDECS is not available by 

that date, within six months of a VDECS becoming available.84 

As can be seen, Option 3 does not prohibit the acquisition or use of equipment for which 

no VDECS technology exists. Owners and operators are obligated to install such 

VDECS only upon the VDECS becoming available. As discussed in the Staff Report, 

ARB found that “[t]here are various advanced exhaust aftertreatment technologies 

commercially available that can provide significant reductions in diesel PM, particularly 

when combined with ultra low-sulfur diesel fuel.”85 The principal technologies that have 

been successfully used to reduce diesel PM are diesel oxidation catalysts (DOCs), 

emulsified diesel fuel, and diesel particulate filters (DPFs). To date, several of these 

technologies have been verified as VDECS for certain non-yard truck applications and 

can be used to meet the performance requirements of the proposed regulation. By 

providing such compliance flexibility, the requirements of Option 3 meet the consistency 

criteria of section 202(a). 

 

82 CAA § 213(a)(3). 

83 Section 2479(1)(B)1.c. 

84 Id. 

85 Staff Report, at V-4. 
31

G. In-Use Performance Standards for Yard Trucks 

As discussed Part II of this document, the CHE Regulation requires that between 

December 31, 2007 and December 31, 2017, owners and operators convert their 

existing in-use yard truck fleet to vehicles having engines: 

 

• certified to 2007 or later on-road emission standards for the model year of the 

year purchased as specified in title 13, CCR, section 1956.8; or 

• certified to final Tier 4 off-road emission standards for the rated horsepower; or 

• equipped with a VDECS that results in emissions less than or equal to the diesel 

PM and NOx emission standards for a certified final Tier 4 off-road diesel engine 

of the same horsepower rating.86

1. In-Use Yard Trucks Registered for On-Road Operation Do Not Require a 

Waiver 

To the extent the in-use performance standards apply to non-new yards trucks 

registered for on-road operation, a waiver is not required. CAA section 209(a) preempts 

states from adopting or attempting to enforce standards relating to the control of 

emissions from new motor vehicles or new motor vehicle engines. By its terms, 

section 2459(e)(2) applies only to in-use (i.e., non-new) motor vehicles. 

2. The Administrator Must Grant California’s Request for Authorization for the 

Fleet Requirements for Non-New Off-Road Yard Trucks

a. Protectiveness 

It cannot be disputed that the adopted in-use emission requirements for the off-road 

yard truck fleet are at least as protective as public health and welfare as applicable 

federal regulations. This is because the CAA does not invest U.S. EPA with authority to 

adopt regulations for non-new nonroad engines.87 Consequently, since there are no 

applicable federal regulations for non-new nonroad engines, California’s requirements 

are, undisputedly, more stringent. 

 

86 Section 2479(e)(2). 

87 CAA § 213(a)(3) provides in pertinent part: “[T]he Administrator shall . . . promulgate (and from time to 

tie revise) regulations containing standards applicable to emissions from those classes or categories of 

new nonroad engines and new nonroad vehicles. . . .” (Emphasis added.) See also Engine 

Manufacturers Association v. U.S. EPA (D.C. Cir. 1996) 88 F.3d 1075. 
32

b. Extraordinary and Compelling Circumstances 

For the reasons set forth in section III.E.3.b.,88 the Administrator cannot find that 

California does not need the adopted emission requirements for non-new off-road yard 

to meet compelling and extraordinary conditions. 

c. Consistency with CAA Section 209 

By its terms, the CHE Regulation applies to off-road yard trucks and thus do not apply 

to motor vehicles as defined in 40 CFR section 85.1703, which are preempted under 

CAA section 209(a), or to nonroad engines preempted under CAA section 209(e)(1) –

new nonroad engines under 175 hp used in farm and construction equipment and 

vehicles and new engines used in locomotives. The optional requirements are also 

consistent with CAA sections 209(b)(1)(C) and 202(a). 

i. Option 1 

In the first years of the regulation’s implementation, it is expected that most, if not all 

owners and operators will elect the first option: replacing late model off-road yard trucks 

with vehicles equipped with certified 2007 and subsequent model year on-road heavyduty engines or re-powering such older vehicles with new certified on-road engines. As 

explained above, no technical feasibility issue exists with regard to availability of 

certified 2007 and subsequent year heavy-duty on-road engines.89 If owners and 

operators choose to comply by replacing or re-powering with certified on-road engines, 

such engines should be readily available by the regulation’s initial compliance date, 

December 31, 2007. Turnover of most yard truck fleets is fairly high, and since ARB 

has estimated that owners and operators of off-road yard trucks will incur little 

incremental cost in purchasing on-road engines in lieu of off-road engines, the 

compliance costs should not be significant. 

ii. Option 2 

The Tier 4 standards are scheduled to be phased in starting in 2011 for most heavyduty engine horsepower ratings. In promulgating its Tier 4 nonroad diesel regulation, 

U.S. EPA found that compliance was feasible by 2011. Although some Tier 4 engines 

might be available in earlier years, it is not anticipated that most owners and operators 

will avail themselves of this option during the first years of implementation, when they 

are required to begin updating the emission standards of their in-use fleets. 

 

88 Supra, at p. 25. 

89 See discussion supra at III.E.1, p. 20 and III.F.3.a., pp. 26-28. 
33

iii. Option 3 

As stated, 2007 and later certified on-road engines should be readily available for 

owners and operators to convert their fleets to lower emitting engines by December 31, 

2007. If they are not, the regulation provides a third option for compliance. However, 

this option may also not be available during the first year of implementation. The first 

year of fleet conversion requires owners and operators to reduce emissions on pre2003 off-road yard trucks by December 31, 2007. By this date, ARB does not expect 

any VDECS to be verified that are capable of reducing pre-2003 engines (engines that 

are either uncertified or certified to Tier 1 emission standards) to at least final Tier 4 

standards. Nonetheless, this is not expected to be a real-world problem because most 

yard trucks have a high turnover rate, and on-road engines under Option 1 are readily 

available. Further flexibility is provided by allowing owners and operators to receive a 

compliance extension of up to one year for engines near retirement. 

In later years, as the compliance schedule requires converting newer model-year 

vehicles that have engines certified to Tier 3 emission levels, VDECS will be available 

that will achieve the lower emissions equal to Tier 4 engine emission levels. For 

example, Huss Umwelttechnik has had a DPF verified as a Level 3 VDECS that will 

achieve at least 85 percent emission reductions on a Tier 3 engine, resulting in 

emissions equal to or less than Tier 4 emission standards. ARB fully expects more 

DPFs will be verified that will achieve such emission reductions in the coming months 

and years. 

H. The Administrator Must Grant California’s Request for Authorization for Its Fleet 

Requirements for Off-Road Non-Yard Trucks

As explained above,90 depending upon the category of non-new non-yard trucks (i.e., 

bulk container handling, bulk cargo handling, or rubber-tired gantry cranes), the CHE 

Regulation requires that owners and operators convert their fleet to lower emitting 

vehicles between December 31, 2007 and December 31, 2013. As with emission 

requirements for non-new yard trucks, California is not preempted by CAA 

section 209(a) from establishing emission standards for non-new, non-yard trucks and 

consequently does not have to receive a waiver from U.S. EPA. Recognizing, however, 

that California must obtain an authorization for non-new nonroad engines, ARB 

respectfully requests that the Administrator grant its request. 

1. Protectiveness and Compelling and Extraordinary Need 

For the reasons previously presented for granting an authorization for the off-road yard 

truck fleet requirements,91 the Administrator should similarly grant authorization for the 

non-new non-yard truck fleet requirements. The Board’s determination that the 

 

90 Supra, pp. 8-12. 

91 Supra, section III.F. 
34

adopted standards are at least as stringent as comparable federal regulations is 

undisputedly neither arbitrary nor capricious. U.S. EPA does not have authority to 

adopt emission standards for non-new, nonroad engines.92 Moreover, it cannot be 

disputed that California has an extraordinary and compelling need for its own in-use 

fleet emission reduction program.93 

2. Consistency 

 

The requirements for off-road non-yard truck fleets are consistent with CAA section 209. 

By the requirements’ terms, they do not apply to motor vehicles as defined by U.S. EPA 

and are, therefore, not preempted by CAA section 209(a). Moreover, the regulation is 

not intended to apply to new nonroad engines under 175 hp used in farm and 

construction equipment and vehicles or to those used in locomotives, which are wholly 

preempted under CAA section 209(e)(1). Finally, the regulations are consistent with 

CAA section 209(b)(1)(C) in that they are technologically feasible given the time for 

compliance after considering the cost of compliance.

94

The regulation provides owners and operators of the various types of non-yard trucks 

with significant flexibility in complying with the fleet conversion requirements. As stated, 

they may elect any of three options for phasing in compliance of their fleets. In 

summary, they may replace or re-power existing vehicles with 2007 and subsequent 

model-year certified on-road heavy-duty engines or certified Tier 4 off-road engines or 

retrofit earlier model-year certified on-road engines or certified Tier 1 through 3 off-road 

engines or non-certified off-road engines with the highest level of VDECS available on 

the market at the time compliance is required.95 Depending on the non-yard truck 

category and the level of VDECS initially used for compliance, the owner or operator 

may have additional compliance requirements to further upgrade or retrofit the engines 

to Tier 4 emission standards or to Level 3 VDECS by December 31, 2015. 

In adopting these options, ARB recognized that 2007 model year on-road engines, 

Tier 4 off-road engines, and higher level of VDECS may not be available for all non-yard 

truck applications in the early years of the fleet conversion requirement. To that end, 

the regulation makes the options contingent upon availability, fully anticipating that 

some vehicle engines may not be able to achieve maximum emission reductions 

immediately. However, as previously presented, in the year since the regulation’s 

adoption, one manufacturer, Huss Umwelttechnik, has had a DPF verified as a Level 3 

VDECS for use on all on-road and off-road engines through the 2006 model year.96 If 

for some reason VDECS are not presently applicable, the regulation effectively provides 

 

92 CAA § 213. 

93 see supra, section III.E.3.b.

94 CAA § 202(a). 

95 Non-certified engines are engines that were manufactured prior to the effective date requiring 

certification on new off-road engines under title 13 CCR, section 2423. 

96 See ARB Verification Program web page at http://www.arb.ca.gov/diesel/verdev/level3/level3.htm 
35

more than 11 years, to December 31, 2015, for full compliance to the maximum 

emission reduction levels. 

Beyond the flexibility provided directly by the options, an owner or operator, if 

necessary, may apply for various compliance extensions.97 They also may request that 

the Executive Officer approve alternative compliance plans that will ensure comparable 

emission reductions but provide owners and operators with additional flexibility in how 

they wish to operate their fleets.98 

Finally, no issue regarding compatibility of federal and state certification procedures for 

on-road or off-road engines exists. 

I. In-Use Fuel Requirements

Under the CAA and U.S. EPA’s regulations, California does not need to obtain a waiver 

or authorization from U.S. EPA for requirements pertaining to fuel specification 

standards. As the regulation applies to on-road motor vehicles, CAA section 

211(c)(4)(B) provides that “[a]ny State for which application of section 209(a) has at any 

time been waived under section 209(b) may at any time prescribe and enforce, for the 

purpose of motor vehicle emission control, a control or prohibition respecting any fuel or 

fuel additive.” Moreover, in the 2004 federal rule establishing Tier 4 emission standard 

for nonroad engines, U.S. EPA opined that the preemption prohibiting states from 

adopting fuel specification standards and enforcement procedures for motor vehicles 

does not apply to nonroad engines.99

 

J. Record-Keeping Requirements 

The record-keeping requirements of the CHE Regulation are intended to ensure 

compliance and effective enforcement of the incorporated emission standards. The 

requirements are thus accompanying enforcement provisions, which do not undermine 

the Board’s determination that the regulation, in the aggregate, is as protective of public 

health and welfare as applicable federal regulations. In adopting the record-keeping 

provision, the Board made a further finding that the requirements were necessary to 

protect public health, safety and welfare of residents of the state.100 No issue regarding 

the costs of compliance with the record-keeping requirements was raised during the 

rulemaking process. 

 

97 See summary, supra, at II.B., pp. 12-13. 

98 Supra, p.13. 

99 Control of Emissions of Air Pollution From Nonroad Diesel Engines and Fuel, 69 Fed.Reg 38958 (June 

29, 2004) [“today's action does not preempt state controls or prohibitions respecting characteristics or 

components of fuel or fuel additives used in nonroad [engines].”] See also U.S. EPA’s direct final rule, 

Control of Air Pollution: Emission Standards for New Nonroad Compression-Ignition Engines at or Above 

37 Kilowatts; Preemption of State Regulation for Nonroad Engine and Vehicle Standards; Amendments to 

Rules, 62 Fed.Reg.67733, fn 128 (December 30, 1997), amending Appendix A [section 209 does not 

preempt states from “regulating the use and operation of nonroad engines, such as sulfur limits on fuel.”] 

100 Resolution 05-62. 
36

To the extent the record-keeping requirements help enforce elements for which we seek 

confirmation that the elements are within the scope of previous waivers or 

authorizations, we request the confirmation decision include the record-keeping 

requirements. To the extent they help enforce elements for which we seek a new 

authorization, we similarly request that the authorization include the record-keeping 

requirements. 

IV. CONCLUSION

Based on the foregoing, ARB respectfully requests that the Administrator grant 

California’s request for waiver and authorization actions pursuant to CAA section 209. 

To assist you in reviewing the regulation, ARB is enclosing the following documents that 

it is incorporating into the record of this waiver proceeding. 

1. Notice of Public Hearing to Consider the Adoption of a Proposed 

Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal 

Rail Yards, Issued October 11, 2005. 

2. Staff Report: Initial Statement of Reasons for Proposed Rulemaking, with 

Appendices issued October 11, 2005,. 

3. Resolution 05-62, dated December 8, 2005. 

4. Notice of Availability of Modified Text, issued May 17, 2006. 

6. Executive Order G-05-010, dated October 17, 2006. 

7. Final Statement of Reasons for Rulemaking Including Summary of 

Comments and Agency Response. 

8. Final Regulation Order for title 13, California Code of Regulations, 

section 2479. 

ARB Contacts:

Technical questions or requests for additional technical information on this item should 

be directed to Dan Donohoue, Chief of ARB’s Emissions Assessment Branch, 

Stationary Source Division, at (916) 322-6023. 

Legal questions should be directed to Michael Terris, ARB’s Office of Legal Affairs, at 

(916) 445-9815.