44112 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Notices 

1CARB, ‘‘Request for Waiver Action Pursuant to 

Clean Air Act Section 209(b) for California’s Urban 

Bus Emission Standards,’’ EPA–HQ–OAR–2012– 

0745–0004, (November 16, 2009). 

2CARB, ‘‘Resolution 00–2,’’ February 24, 2000; 

CARB, ‘‘Executive Order G–00–060,’’ (November 

22, 2000); CARB, ‘‘Executive Order G–01–010,’’ 

(May 29, 2001). 

3CARB, ‘‘Secretary of State Face Sheet and Final 

Regulation Order,’’ effective January 23, 2001; 

CARB, ‘‘Secretary of State Face Sheet and Final 

Regulation Order,’’ effective May 29, 2001. 

completion of all necessary reviews, and 

the subsequent need to complete all 

federal authorizations within 90 days of 

the date of issuance of the Commission 

staff’s FEIS or EA. 

Any person may, within 60 days after 

the issuance of the instant notice by the 

Commission, file pursuant to Rule 214 

of the Commission’s Procedural Rules 

(18 CFR 385.214) a motion to intervene 

or notice of intervention. Any person 

filing to intervene or the Commission’s 

staff may, pursuant to section 157.205 of 

the Commission’s regulations under the 

NGA (18 CFR 157.205) file a protest to 

the request. If no protest is filed within 

the time allowed therefore, the proposed 

activity shall be deemed to be 

authorized effective the day after the 

time allowed for protest. If a protest is 

filed and not withdrawn within 30 days 

after the time allowed for filing a 

protest, the instant request shall be 

treated as an application for 

authorization pursuant to section 7 of 

the NGA. 

The Commission strongly encourages 

electronic filings of comments, protests, 

and interventions via the internet in lieu 

of paper. See 18 CFR 385.2001(a)(1)(iii) 

and the instructions on the 

Commission’s Web site (www.ferc.gov) 

under the ‘‘e-Filing’’ link. Persons 

unable to file electronically should 

submit an original and five (5) copies of 

the protest or intervention to the Federal 

Energy Regulatory Commission, 888 

First Street NE., Washington, DC 20426. 

Dated: July 16, 2013. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2013–17583 Filed 7–22–13; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9836–7] 

California State Motor Vehicle 

Pollution Control Standards; Urban 

Buses; Request for Waiver of 

Preemption; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: EPA is granting the California 

Air Resources Board (CARB) its request 

for a waiver of preemption for emission 

standards and related test procedures 

contained in its urban bus regulations as 

they affect the 2002 and later model 

years. Urban buses are conventionally 

powered by a heavy-duty diesel engine 

that falls within the heavy-duty vehicle 

classification of greater than 33,000 

pounds gross vehicle weight, and are 

intended primarily for intra-city 

operation, i.e., within the confines of a 

city or greater metropolitan area. 

DATES: Petitions for review must be filed 

by September 23, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2012–0745. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

working days from 8:30 a.m. to 4:30 

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

Center’s Web site is http://www.epa.gov/ 

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-rDocket@epa.gov, the telephone number 

is (202) 566–1742, and the fax number 

is (202) 566–9744. An electronic version 

of the public docket is available through 

the federal government’s electronic 

public docket and comment system. 

You may access EPA dockets at http:// 

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2012–0745 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

Air Quality (OTAQ) maintains a Web 

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

http://www.epa.gov/otaq/cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

Brenton M. Williams, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105. Telephone: (734) 214–4341. Fax: 

(734) 214–4053. Email: 

williams.brent@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Chronology 

By letter dated November 16, 2009, 

CARB submitted to EPA its request for 

a waiver of preemption pursuant to 

section 209(b) of the Clean Air Act 

(CAA or the Act), for its urban bus 

regulations.1 California’s urban bus 

regulations principally set requirements 

for California’s public transit agencies 

that operate urban buses and other 

transit vehicles; additionally, the 

rulemakings set emission standards for 

new urban bus engines. CARB formally 

adopted these urban bus regulations 

during five separate rulemakings that 

took place between 2000 and 2005: a 

2000 rulemaking, a 2002 rulemaking, a 

2004 rulemaking, a February 2005 

rulemaking, and an October 2005 

rulemaking. Collectively, the five 

rulemakings elevated the stringency of 

exhaust emission standards and test 

procedures for heavy-duty urban bus 

engines and vehicles. The 2000 

rulemaking included more stringent 

particulate matter (‘‘PM’’) emission 

standards for diesel-fueled urban bus 

engines through the 2006 model year; 

more stringent mandatory and optional 

nitrogen oxides (‘‘NOX’’) and nonmethane hydrocarbon (‘‘NMHC’’) 

standards for diesel-fueled urban bus 

engines through the 2003 model year; 

more stringent optional combined 

NMHC+ NOX and PM standards for 

alternatively-fueled urban bus engines 

through the 2006 model year; more 

stringent primary emission standards for 

diesel-fueled urban buses through the 

2006 model year; tightening of exhaust 

emission standards for 2007 and later 

model year heavy-duty urban diesel 

engines; and adoption of urban bus test 

procedures and label specifications. The 

2000 rulemaking was formally adopted 

by CARB on November 22, 2000 and 

May 29, 2001,2 and became operative 

under California law on January 23, 

2001 and May 29, 2001, respectively.3

The 2002 rulemaking allowed for an 

optional NMHC+ NOX standard for 

2004–2006 model year diesel-fueled 

urban bus engines when used in 

exempted transit fleets with 

commitments to demonstrate advanced 

NOX after-treatment technology, and 


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4CARB, ‘‘Resolution 02–30,’’ (October 24, 2002); 

CARB, ‘‘Executive Order G–03–023,’’ (September 2, 

2003). 

5CARB, ‘‘Secretary of State Face Sheet and Final 

Regulation Order,’’ effective November 15, 2003. 

6CARB, ‘‘Resolution 04–19,’’ (June 24, 2004). 

7CARB, ‘‘Secretary of State Face Sheet and Final 

Regulation Order,’’ effective January 31, 2004. 

8CARB, ‘‘Resolution 05–15,’’ (February 24, 2005). 

9CARB, ‘‘Secretary of State Face Sheet and Final 

Regulation Order,’’ effective January 31, 2006. 

10CARB, ‘‘Resolution 05–47,’’ (September 15, 

2005); CARB, ‘‘Resolution 05–53,’’ (October 20, 

2005); CARB Resolution 05–61,’’ (October 27, 2005); 

CARB, ‘‘Executive Order R–05–007,’’ (July 28, 

2006). 

11CARB, ‘‘Secretary of State Face Sheet and Final 

Regulation Order,’’ effective October 7, 2006. 

12See supra notes 5, 7, 9, 11, and 13. 

13CARB’s transit agency fleet rules are not 

covered by CARB’s waiver request and will not be 

subject to waiver analysis. CARB represents that the 

fleet rules are not preempted under CAA section 

209(a) because CARB’s directions to transit agencies 

to purchase and lease specified buses and vehicles 

with given engine technologies or with given 

emission limits by specified dates fall with the 

market participant doctrine, as articulated by the 

9th Circuit Court of Appeals. Tocher v. City of 

Santa Ana et al. (9th Cir. 2000) 219 F.3d 1040, 

1050. CARB, ‘‘Clean Air Act § 209(b) Waiver 

Support Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at page 1. 

14CARB, ‘‘Clean Air Act § 209(b) Waiver Support 

Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at page 4. 

15CARB, ‘‘Overview of the 2000, 2002, 2004, and 

2005 Transit Agency and Urban Bus Rulemakings,’’ 

EPA–HQ–OAR–2012–0745–0007, (November 2009), 

at page 1. 

16These standards were set for urban buses in a 

1998 CARB rulemaking for heavy heavy-duty diesel 

engines, which established standards for the 2004 

and later MY. Id. at 2. 

17 Id. at 2. 

18CARB, ‘‘Clean Air Act § 209(b) Waiver Support 

Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at page 9. 

19 Id. at 8. 

20 Id. at 9. 

established a certification procedure for 

hybrid electric buses. The 2002 

rulemaking was formally adopted by 

CARB on September 2, 2003,4 and 

became operative under California law 

on November 15, 2003.5 The 2004 

rulemaking added optional exhaust 

emission standards for diesel-fueled 

hybrid-electric urban bus engines for 

authorized transit agencies with NOX

mitigation plans for the 2004–2006 

model years. The 2004 rulemaking was 

formally adopted by CARB on June 24, 

2004,6 and became operative under 

California law on January 31, 2004.7 The 

February 2005 rulemaking clarified the 

optional standards for hybrid-electric 

buses that were allowed in the 2004 

rulemaking. The February 2005 

rulemaking was formally adopted by 

CARB on February 24, 2005,8 and 

became operative under California law 

on January 31, 2006.9 The October 2005 

rulemaking amended the urban bus 

standards to align with California’s 

existing exhaust emission standards for 

heavy-duty diesel engines. The October 

2005 rulemaking was formally adopted 

by CARB on July 28, 2006,10 and 

became operative under California law 

on October 7, 2006.11 The revisions to 

emission standards and test procedures 

resulting from these five sets of 

amendments were codified at title 13, 

California Code of Regulations, section 

1952.2 et seq., which was later 

renumbered to section 2023 et seq.12

CARB seeks a waiver of preemption 

pursuant to section 209(b) of the Clean 

Air Act for the emission standards and 

related test procedures contained in its 

urban bus regulations, as amended 

through 2000 and 2005. 

B. CARB’s Urban Bus Rulemakings 

There are two basic components to 

the rulemakings from 2000 to 2005 for 

urban buses: (1) More stringent emission 

standards for new urban bus engines 

applicable to urban bus engine 

manufacturers, along with amendments 

to the test procedures for determining 

compliance with the standards; and (2) 

transit agency fleet rules 13 applicable to 

public transit agencies that own or lease 

urban buses and other transit vehicles to 

provide transportation services to the 

public directly or through contracted 

services. This section discusses the 

emission standards and amendments to 

test procedures for which CARB 

requests a new waiver of preemption.14

1. 2000 Rulemaking 

The 2000 amendments to the urban 

bus emission standards made them 

increasingly more stringent in multiple 

stages depending on fuel type. First, 

CARB established a more stringent PM 

emission standard of 0.01 grams per 

brake horsepower-hour (‘‘g/bhp-hr’’) for 

2002 and later model year (MY) dieselfuel, dual-fuel, and bi-fuel urban bus 

engines produced on or after October 1, 

2002, representing an 80-percent 

reduction from the preexisting PM 

standard of 0.05 g/bhp-hr.15 Second, for 

the 2004 through 2006 MY, the 

amendments increased the stringency of 

NOX, NMHC, carbon monoxide (‘‘CO’’), 

and formaldehyde standards for all 

urban bus engines and provided 

optional standards as well. For urban 

bus engines other than diesel-fuel, dualfuel, and bi-fuel engines, the emissions 

standards for 2004 through 2006 were 

set at 2.4 g/bhp-hr for NOX+NMHC, 15.5 

g/bhp-hr for CO, and 0.05 g/bhp-hr for 

PM (0.07g/bhp-hr PM in-use).16 For 

diesel-fueled, dual-fuel, and bi-fuel 

urban bus engines in the 2004–2006 

model years, the standards were set at 

0.5 g/bhp-hr NOX, representing a 75- 

percent reduction in the preexisting 

NOX standard; 0.01 g/bhp-hr PM 

(maintaining the October 2002 

standards), 0.05 g/bhp-hr NMHC, 5.0 g/ 

bhp-hr CO, and 0.01 g/bhp-hr 

formaldehyde. Third, beginning with 

the 2007 MY, all urban bus engines 

(regardless of fuel type) had to meet 

more stringent emission standards for 

NOX at 0.2 g/bhp-hr, NMHC at 0.05 g/ 

bhp-hr, CO at 5.0 g/bhp-hr, and 

formaldehyde at 0.01 g/bhp-hr.17

The 2000 urban bus rulemaking also 

amended the ‘‘California Exhaust 

Emission Standards and Test 

Procedures for 1985 and Subsequent 

Model Heavy-Duty Diesel Engines and 

Vehicles’’ to be consistent with the 

urban bus standards described above. 

Additionally, the smog index label 

specifications and the incorporated 

Label Specifications were amended to 

be consistent with the requirements of 

the urban bus standards.18

2. 2002 Rulemaking 

In the 2002 urban bus amendments, 

CARB allowed manufacturers of MY 

2004–2006 diesel-fuel, dual-fuel, and bifuel urban bus engines to sell engines 

that did not meet the 2000 adopted 

standards (0.5 g/bhp-hr NOX, 

representing a 75-percent reduction in 

the preexisting NOX standard; 0.01 g/ 

bhp-hr PM (maintaining the October 

2002 standards), 0.05 g/bhp-hr NMHC, 

5.0 g/bhp-hr CO, and 0.01 g/bhp-hr 

formaldehyde,) to an exempted public 

transit agency as long as the engine was 

certified either to the standards that 

continued as the primary standards for 

MY 2004–2006 alternative fuel bus 

engines (2.4/2.5 g/bhp-hr NOX+NMHC), 

or to the optional October 2002–2003 

standards for diesel-fuel engines of 

NOX+NMHC standards between 1.8 and 

0.3 g/bhp-hr, in 0.3 g/bhp-hr 

increments.19

Additionally, CARB adopted a new 

interim certification procedure that 

could be used to determine the 

compliance of 2004 and later model 

year hybrid electric buses (HEB) with 

the urban bus standards. The purpose of 

providing this new procedure was to 

facilitate quantification of the emission 

benefits of the hybrid-electric drive 

system in various HEB platforms.20

3. 2004 Rulemaking 

The 2004 urban bus amendments 

relaxed the NOX exhaust emission 

standard for model years 2004–2006 

from 0.5 g/bhp-hr to 1.8 g/bhp-hr for 

diesel fuel hybrid-electric buses sold to 

a public transit agency that has been 

authorized by the Executive Officer of 


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44114 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Notices 

21CARB, ‘‘Overview of the 2000, 2002, 2004, and 

2005 Transit Agency and Urban Bus Rulemakings,’’ 

EPA–HQ–OAR–2012–0745–0007, (November 2009), 

at page 3. 

22 Id. at 4. 

24 70 FR 50322 (August 26, 2005). 

24 78 FR 719 (January 4, 2013). 

25See S. Rep. No. 90–403 at 632 (1967). 

26CAA § 209(b)(1)(A). 

27CAA § 209(b)(1)(B). 

28CAA § 209(b)(1)(C). 

29See, e.g., 74 FR 32767 (July 8, 2009); see also 

Motor and Equipment Manufacturers Association v. 

EPA (MEMA I), 627 F.2d 1095, 1126 (D.C. Cir. 

1979). 

30 ‘‘Once California receives a waiver for 

standards for a certain class of motor vehicles, it 

need only meet the waiver criteria of section 209(b) 

for regulations pertaining to those vehicles when it 

adopts new or different standards or accompanying 

enforcement procedures. Otherwise, California may 

adopt any other condition precedent to the initial 

retail sale, titling, or registration of those vehicles 

without the necessity of receiving a further waiver 

of Federal preemption.’’ 43 FR 36680 (August 18, 

1978). 

31See also Engine Mfrs. Ass’n v. EPA, 88 F.3d 

1075, 1094 (D.C. Cir. 1996). 

CARB to acquire such buses, as long as 

the transit agency demonstrates it will 

undertake measures to mitigate the 

excess NOX emissions.21

4. February 2005 Rulemaking 

The February 2005 amendments 

corrected the 2004–2006 MY emission 

standards for diesel hybrid-electric 

engines used in urban buses. When the 

standards were amended in the 2004 

rulemaking, CARB inadvertently 

omitted the then-existing standards for 

NMHC and CO. The February 2005 

amendments reinserted the engine 

exhaust emission standards of 0.5 g/ 

bhp-hr for NMHC and 15.5 g/bhp-hr for 

CO, and removed the formaldehyde 

standard.22

5. October 2005 Rulemaking 

The October 2005 amendments 

aligned the urban bus exhaust emission 

standards with California’s existing 

exhaust emission standards for heavyduty diesel-cycle engines, for which a 

federal waiver of preemption had 

already been granted.23 The alignment 

allows the urban bus manufacturers to 

use averaging, banking, and trading 

(ABT) and other provisions in 

California’s heavy-duty engine testing 

and certification procedures. The 

alignment also allowed for the following 

standards to be phased in through MY 

2010: 0.02 g/bhp-hr NOX, 0.14 g/bhp-hr 

NMHC, 0.01 g/bhp-hr PM, 15.5 g/bhp-hr 

CO, and 0.05 g/bhp-hr formaldehyde. 

C. EPA’s Review of California’s Urban 

Bus Waiver Request 

EPA announced its receipt of 

California’s request for a waiver of 

preemption pursuant to section 209(b) 

of the Act for the emission standards 

and related test procedures contained in 

its urban bus regulations, as amended 

through 2000 and 2005 in a Federal 

Register notice on January 4, 2013.24 In 

that notice, EPA offered an opportunity 

for public hearing and comment on 

CARB’s request. 

EPA invited comment, with respect to 

California’s emission standards and 

related test procedures contained in its 

urban bus regulations, on whether: (a) 

California’s determination that its motor 

vehicle emission standards are, in the 

aggregate, at least as protective of public 

health and welfare as applicable federal 

standards is arbitrary and capricious, (b) 

California needs such standards to meet 

compelling and extraordinary 

conditions, and (c) California’s 

standards and accompanying 

enforcement procedures are consistent 

with section 202(a) of the Act. 

No party requested an opportunity for 

a hearing to present oral testimony, and 

EPA did not receive any written 

comments. 

D. Clean Air Act New Motor Vehicle 

Waivers of Preemption 

Section 209(a) of the Act preempts 

states and local governments from 

setting emission standards for new 

motor vehicles and engines; it provides: 

No State or any political subdivision 

thereof shall adopt or attempt to enforce any 

standard relating to the control of emissions 

from new motor vehicles or new motor 

vehicle engines subject to this part. No state 

shall require certification, inspection or any 

other approval relating to the control of 

emissions from any new motor vehicle or 

new motor vehicle engine as condition 

precedent to the initial retail sale, titling (if 

any), or registration of such motor vehicle, 

motor vehicle engine, or equipment. 

Through operation of section 209(b) of 

the Act, California is able to seek and 

receive a waiver of section 209(a)’s 

preemption. If certain criteria are met, 

section 209(b)(1) of the Act requires the 

Administrator, after notice and 

opportunity for public hearing, to waive 

application of the prohibitions of 

section 209(a). Section 209(b)(1) only 

allows a waiver to be granted for any 

state that had adopted standards (other 

than crankcase emission standards) for 

the control of emissions from new motor 

vehicles or new motor vehicle engines 

prior to March 30, 1966, if the state 

determines that its standards will be, in 

the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards (i.e., if such state 

makes a ‘‘protectiveness 

determination’’). Because California was 

the only state to have adopted standards 

prior to 1966, it is the only state that is 

qualified to seek and receive a waiver.25

The Administrator must grant a waiver 

unless she finds that: (A) California’s 

above-noted ‘‘protectiveness 

determination’’ is arbitrary and 

capricious; 26 (B) California does not 

need such State standards to meet 

compelling and extraordinary 

conditions;27 or (C) California’s 

standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act.28 EPA has previously stated that 

consistency with section 202(a) requires 

that California’s standards must be 

technologically feasible within the lead 

time provided, giving due consideration 

to costs, and that California and 

applicable federal test procedures be 

consistent.29

The second sentence of section 209(a) 

of the Act prevents states from 

requiring, ‘‘certification, inspection or 

any other approval relating to the 

control of emissions from any new 

motor vehicle or new motor vehicle 

engine as condition precedent to the 

initial retail sale, titling (if any), or 

registration of such motor vehicle, 

motor vehicle engine, or equipment.’’ 

However, once EPA has granted 

California a waiver of section 209(a)’s 

preemption for emission standards and/ 

or accompanying enforcement 

procedures, California may then require 

other such conditions precedent.30 EPA 

can confirm that a California 

requirement is a condition precedent to 

sale, titling, or registration, if: (1) The 

requirements do not constitute new or 

different standards or accompanying 

enforcement procedures, and (2) the 

requirements do not affect the basis for 

the previous waiver decision. 

In contrast to section 209(a)’s 

preemption of state adoption of 

standards controlling emissions from 

new motor vehicles and motor vehicle 

engines, section 209(d) of the Act 

explicitly preserves states’ ability to 

regulate vehicles and engines in use. 

Section 209(d) provides that despite 

section 209(a)’s preemption, ‘‘Nothing 

in this part shall preclude or deny to 

any State or political subdivision 

thereof the right otherwise to control, 

regulate, or restrict the use, operation, or 

movement of registered or licensed 

motor vehicles.’’ 31

E. Deference to California 

In previous waiver decisions, EPA has 

recognized that the intent of Congress in 

creating a limited review based on the 

section 209(b)(1) criteria was to ensure 

that the federal government did not 

second-guess state policy choices. This 

has led EPA to state: 


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Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Notices 44115 

32 40 FR 23103–23104 (May 28, 1975); see also 

LEV I Decision Document at 64 (58 FR 4166 

(January 13, 1993)). 

33 40 FR 23104 and 58 FR 4166. 

34 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 

294, 95 Cong., 1st Sess. 301–02 (1977). 

35 MEMA I, 627 F.2d at 1122. 

36 Id. 

37 Id. 

38 Id. 

39See, e.g., 40 FR 21102–103 (May 28, 1975). 

40 MEMA I, 627 F.2d at 1121. 

41 Id. at 1126. 

42 Id. at 1126. 

43CAA § 209(b)(1)(A). 

44CAA § 209(b)(1)(B). 

45CAA section 209(b)(1)(C). 

46See, e.g., 74 FR 32767 (July 8, 2009); see also 

Motor and Equipment Manufacturers Association v. 

EPA (MEMA I), 627 F.2d 1095, 1126 (D.C. Cir. 

1979). 

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 shaped of 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 

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.32

EPA has stated that the text, structure, 

and history of the California waiver 

provision clearly indicate both a 

congressional intent and appropriate 

EPA practice of leaving the decision on 

‘‘ambiguous and controversial matters of 

public policy’’ to California’s 

judgment.33

This interpretation is supported by 

the House Committee Report discussion 

of the 1977 amendments to the Clean 

Air Act. Congress had the opportunity 

to restrict the waiver provision, but 

elected instead to expand California’s 

flexibility to adopt a complete program 

of motor vehicle emission controls. The 

amendment is intended to ratify and 

strengthen the California waiver 

provision and to affirm the underlying 

intent of that provision, i.e., to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare.34

F. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

EPA, 627 F.2d 1095 (DC Cir. 1979) 

(MEMA I), the U.S. Court of Appeals for 

the D.C. Circuit stated that the 

Administrator’s role in a section 209 

proceeding is to: 

consider all evidence that passes the 

threshold test of materiality and . . . 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.35

The court in MEMA I considered the 

standards of proof under section 209 for 

the two findings related to granting a 

waiver for an ‘‘accompanying 

enforcement procedure’’ (as opposed to 

the standards themselves): (1) 

Protectiveness in the aggregate and (2) 

consistency with section 202(a) 

findings. The court instructed that ‘‘the 

standard of proof must take account of 

the nature of the risk of error involved 

in any given decision, and it therefore 

varies with the finding involved. We 

need not decide how this standard 

operates in every waiver decision.’’ 36

The court upheld the Administrator’s 

position that, to deny a waiver, there 

must be ‘clear and compelling evidence’ 

to show that proposed procedures 

undermine the protectiveness of 

California’s standards.37 The court 

noted that this standard of proof also 

accords with the congressional intent to 

provide California with the broadest 

possible discretion in setting regulations 

it finds protective of the public health 

and welfare.38

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

proceedings, but found that the 

opponents of the waiver were unable to 

meet their burden of proof even if the 

standard were a mere preponderance of 

the evidence. Although MEMA I did not 

explicitly consider the standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ as 

compared to accompanying enforcement 

procedures, there is nothing in the 

opinion to suggest that the court’s 

analysis would not apply with equal 

force to such determinations. EPA’s past 

waiver decisions have consistently 

made clear that: ‘‘even in the two areas 

concededly reserved for Federal 

judgment by this legislation—the 

existence of ‘compelling and 

extraordinary’ conditions and whether 

the standards are technologically 

feasible—Congress intended that the 

standards of EPA review of the State 

decision to be a narrow one.’’ 39

Opponents of the waiver bear the 

burden of showing that the criteria for 

a denial of California’s waiver request 

have been met. As found in MEMA I, 

this obligation rests firmly with 

opponents of the waiver in a section 209 

proceeding: 

[t]he language of the statute and it’s 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must 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. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.40

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

As the court in MEMA I stated: ‘‘here, 

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 41 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 42

II. Discussion 

California’s urban bus regulations 

elevated the stringency of exhaust 

emission standards and test procedures 

for heavy-duty urban bus engines and 

vehicles. It is CARB’s contention that 

the new emission standards and test 

procedures for new urban buses and 

engines meet the criteria for a new 

waiver of preemption. The 

Administrator must grant a waiver 

unless the Administrator finds that: (a) 

California’s ‘‘protectiveness 

determination’’ is arbitrary and 

capricious; 43 (b) California does not 

need such state standards to meet 

compelling and extraordinary 

conditions; 44 or (c) California’s 

standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act.45 As noted above, consistency with 

section 202(a) requires that California’s 

standards must be technologically 

feasible within the lead time provided, 

giving due consideration to costs, and 

that California and applicable federal 

test procedures be consistent.46

A. California’s Protectiveness 

Determination 

Section 209(b)(1)(A) of the Clean Air 

Act requires EPA to deny a waiver if the 

Administrator finds that California was 

arbitrary and capricious in its 


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44116 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Notices 

47See EPA–HQ–OAR–2012–0745 for copies of 

Resolutions. 

48CARB, ‘‘Clean Air Act § 209(b) Waiver Support 

Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at page 13. 

49See Id. at 5; and see Id. at 13. 

50See, e.g., Approval and Promulgation of State 

Implementation Plans; California—South Coast, 64 

FR 1770, 1771 (January 12, 1999). See also 69 FR 

23858, 23881–90 (April 30, 2004) (designating 15 

areas in California as nonattainment for the federal 

8-hour ozone national ambient air quality standard). 

51 49 FR 18887, 18890 (May 3, 1984); see also 76 

FR 34693 (June 14, 2011), 74 FR 32744, 32763 (July 

8, 2009), and 73 FR 52042 (September 8, 2008). 

52See CARB, ‘‘Clean Air Act § 209(b) Waiver 

Support Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at pages 15–19. 

53 65 FR 59896 (October 6, 2000). 

54CARB, ‘‘Clean Air Act § 209(b) Waiver Support 

Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at page 20. 

55 Id. 

determination that its State standards 

will be, in the aggregate, at least as 

protective of public health and welfare 

as applicable federal standards. When 

evaluating California’s protectiveness 

determination, EPA generally compares 

the stringency of the California and 

federal standards at issue in a given 

waiver request. 

CARB approved more stringent 

emission standards for new urban 

transit buses and engines and the 

corresponding test procedures by 

Resolution 00–2 (February 24, 2000), 

Resolution 02–30 (October 24, 2002), 

Resolution 04–19 (June 24, 2004), 

Resolution 05–15 (February 24, 2005), 

and Resolutions 05–53 and 05–61 

(October 20 and 27, 2005, 

respectively).47 In the respective 

Resolutions, CARB determined that the 

amendments ‘‘would not cause 

California’s emission standards, in the 

aggregate, to be less protective of public 

health and welfare than the applicable 

federal standards.’’ 48 The amended 

California standards align with, or are 

more stringent than, the applicable 

federal urban bus standards for NOX, 

NMHC, PM, and CO for each of the 

respective model years covered by the 

amendments.49

There were no comments that 

expressed an opinion, nor has there 

been any evidence presented, suggesting 

that CARB was arbitrary and capricious 

in making its above-noted 

protectiveness findings. Based on the 

record, EPA cannot find that California 

was arbitrary and capricious in its 

findings that California’s new urban bus 

emission standards, in the aggregate, at 

least as protective of public health and 

welfare as applicable federal standards. 

B. California’s Need for State Standards 

To Meet Compelling and Extraordinary 

Conditions 

Under section 209(b)(1)(B) of the Act, 

EPA cannot grant a waiver if California 

‘‘does not need such State standards to 

meet compelling and extraordinary 

conditions.’’ To evaluate this criterion, 

EPA considers whether California needs 

its separate emission standards and test 

procedures to meet compelling and 

extraordinary conditions. 

Over the past forty years, CARB has 

repeatedly demonstrated the need for its 

motor vehicle emissions program to 

address compelling and extraordinary 

conditions in California.50 In the 

aforementioned Resolutions, CARB 

affirmed its longstanding position that 

California continues to need its own 

emission standards and test procedures 

to meet its serious air pollution 

problems. Likewise, EPA has 

consistently recognized that California 

continues to have the same 

‘‘geographical and climatic conditions 

that, when combined with the large 

numbers and high concentrations of 

automobiles, create serious pollution 

problems.’’ 51 Furthermore, there were 

no comments presenting any argument 

or evidence to suggest that California no 

longer needs separate emission 

standards and test procedures to address 

compelling and extraordinary 

conditions in California. Therefore, EPA 

has determined that we cannot deny 

California a waiver for its new urban 

bus standards under section 

209(b)(1)(B). 

C. Consistency With Section 202(a) of 

the Clean Air Act 

Under section 209(b)(1)(C) of the Act, 

EPA must deny a California waiver 

request if the Agency finds that 

California standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act. The scope of EPA’s review under 

this criterion is narrow. EPA has stated 

on many occasions that the 

determination is limited to whether 

those opposed to the waiver have met 

their burden of establishing that 

California’s standards are inconsistent 

with section 202(a). Previous waivers of 

federal preemption have stated that 

California’s standards are not consistent 

with section 202(a) if there is 

inadequate lead time to permit the 

development of technology necessary to 

meet those requirements, giving 

appropriate consideration to the cost of 

compliance within that time. 

California’s accompanying enforcement 

procedures would be inconsistent with 

section 202(a) if the federal and 

California test procedures conflict, i.e., 

if manufacturers would be unable to 

meet both the California and federal test 

requirements with the same test vehicle. 

1. Lead Time Is Adequate for 

Manufacturer Compliance 

CARB asserts that given the 

submission date of the waiver request 

(November 16, 2009), the technological 

feasibility of the amendments cannot be 

disputed given the fact that 

manufacturers have been able to certify 

engines in the lead time provided.52

EPA received no comments indicating 

that CARB’s urban bus amendments 

present lead-time or technology issues 

with respect to consistency under 

section 202(a) and the agency knows of 

no other evidence to that effect. Thus, 

EPA is unable to find that California’s 

urban bus standards are not 

technologically feasible within the 

available lead-time, giving appropriate 

consideration to the cost of compliance. 

2. Consistency of Test Procedures 

With regard to the consistency of the 

California test procedures with the 

applicable federal test procedures, 

CARB has adopted certification 

requirements in the 2000 rulemaking 

that are nearly identical to those 

adopted and affirmed by the EPA.53

Although the 2002 adopted Interim 

Certification Procedure for HEB is a new 

accompanying test procedure, it is 

optional, and the general test 

procedures and requirements necessary 

for certifying a diesel or gasoline heavyduty engine for sale in California may 

continue to be used by manufacturers 

for certification of urban bus engines.54

CARB asserts it is not aware of any 

instance in which a manufacturer is 

precluded from conducting a single set 

of tests on an urban bus engine to 

determine compliance with both the 

California and federal emission 

standards.55

EPA received no comments 

expressing any disagreement with these 

statements from CARB, and no 

comments presenting any evidence 

opposing CARB’s assertions regarding 

consistency with federal test 

procedures. EPA is unable to find that 

California’s urban bus test procedures 

impose requirements inconsistent with 

federal test procedures. 

For the reasons set forth above, 

California’s urban bus standards and 

accompanying enforcement procedures 


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Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Notices 44117 

56 Id. 

57 Id. 

58See, e.g., 49 FR 18887 (May 5, 1984), 47 FR 

1015 (January 8, 1982), and 46 FR 36237 (July 14, 

1981). 

59 46 FR 36742 (July 15, 1981), 45 FR 54131 

(August 14, 1980), and 43 FR 36579 (August 18, 

1978). 

60See, e.g., 68 FR 75500 (December 31, 2003). 

61CARB, ‘‘Clean Air Act § 209(b) Waiver Support 

Document Submitted by the California Air 

Resources Board,’’ EPA–HQ–OAR–2012–0745– 

0004, (November 2009), at page 21. 

are not inconsistent with section 202(a) 

of the Act. 

D. Other Issues 

The 2000 rulemaking required the 

addition of information to the emission 

control label for urban bus engines to 

help identify the engines certified to the 

optional emission standards.56 CARB 

asserts that because the labels do not 

pertain to a manufacturer’s ability to 

certify and produce engines that comply 

with the applicable emission standards, 

the emission control label specifications 

are not standards or accompanying 

enforcement procedures.57 The 

specifications are, however, subject to 

federal preemption under CAA section 

209(a) because the specifications are a 

condition precedent to the initial retail 

sale of the new engines in California.58

EPA has stated that ‘‘once California has 

received a waiver of federal preemption 

for its standards and enforcement 

procedures for a class of vehicles, it may 

adopt other conditions precedent to 

initial retail sale, titling or registration 

of the subject class of vehicles without 

the necessity of receiving a further 

waiver of federal preemption.’’ 59 In the 

instant case, CARB states that it has 

received previous waivers for urban bus 

engines.60 Therefore, CARB need not 

demonstrate that the labeling 

specifications independently meet the 

waiver criteria. EPA agrees with this 

assessment and the labeling 

specifications may be enforced in 

California without further action by the 

Administrator.61

E. Full Waiver of Preemption 

Determination for California’s Urban 

Bus Standards 

After a review of the information 

submitted by CARB, and given there 

were no parties opposing California’s 

request, EPA finds that California’s 

urban bus standards should receive a 

full waiver of preemption. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(b) waivers of preemption and 

section 209(e) authorizations to the 

Assistant Administrator for Air and 

Radiation. After evaluating CARB’s 

urban bus emission standards and test 

procedures and CARB’s submissions, 

EPA is taking the following action. EPA 

is granting a waiver of preemption to 

California for its urban bus emission 

standards and test procedures as they 

affect the 2002 and later model years. 

My decision will affect not only 

persons in California, but also 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce 

vehicles for sale in California. For this 

reason, I determine and find that this is 

a final action of national applicability 

for purposes of section 307(b)(1) of the 

Act. Pursuant to section 307(b)(1) of the 

Act, judicial review of this final action 

may be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by September 23, 2013. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

Act, 5 U.S.C. 801, et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: July 15, 2013. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2013–17700 Filed 7–22–13; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9836–4; Docket ID No. EPA–HQ–ORD– 

2006–0756] 

Notice of a Public Comment Period on 

the Draft IRIS Carcinogenicity 

Assessment for Ethylene Oxide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of public comment 

period. 

SUMMARY: EPA is announcing a 45-day 

public comment period on the draft IRIS 

assessment titled, ‘‘Evaluation of the 

Inhalation Carcinogenicity of Ethylene 

Oxide’’ (EPA/635/R–13/128a) and on 

the draft peer review charge questions. 

The draft assessment and draft peer 

review charge questions were prepared 

by the National Center for 

Environmental Assessment (NCEA) 

within the EPA Office of Research and 

Development (ORD). The 45-day public 

comment period on the draft Evaluation 

of the Inhalation Carcinogenicity of 

Ethylene Oxide and on the draft peer 

review charge questions begins on the 

day EPA posts the draft assessment and 

the draft peer review charge questions 

on the IRIS Web site and ends 45 days 

later. EPA anticipates posting the draft 

assessment and draft charge questions 

on or around July 23, 2013. Shortly after 

the draft carcinogenicity assessment is 

posted on the IRIS Web site, EPA will 

initiate a peer review of the draft 

assessment, which EPA anticipates will 

be undertaken by the Science Advisory 

Board. EPA is releasing this draft 

carcinogenicity assessment for the 

purpose of public comment. This draft 

assessment is not final, as described in 

EPA’s information quality guidelines, 

and it does not represent and should not 

be construed to represent Agency policy 

or views. 

DATES: The 45-day public comment 

period on the draft Evaluation of the 

Inhalation Carcinogenicity of Ethylene 

Oxide and on the draft peer review 

charge questions begins on the day EPA 

posts the draft assessment and the draft 

peer review charge questions on the 

IRIS Web site and ends 45 days later. 

The draft assessment and peer review 

charge questions will be posted to the 

IRIS Web site at http://www.epa.gov/ 

IRIS. Comments should be in writing 

and received by EPA within 45 days 

after posting the draft carcinogenicity 

assessment and the draft peer review 

charge questions on the IRIS Web site. 

EPA anticipates posting the draft 

assessment and draft charge questions 

on or around July 23, 2013. 

ADDRESSES: The draft IRIS 

carcinogenicity assessment titled, 

‘‘Evaluation of the Inhalation 

Carcinogenicity of Ethylene Oxide’’ is 

available primarily via the Internet on 

the IRIS Web site at http://www.epa.gov/ 

IRIS. A limited number of paper copies 

are available from the Information 

Management Team (Address: 

Information Management Team, 

National Center for Environmental 


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