Sei sulla pagina 1di 4


Citation: 42 Fed. Reg. 31639 1977

Provided by:
University of Michigan Law Library

Content downloaded/printed from HeinOnline

Fri Mar 31 12:17:34 2017

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at

-- The search text of this PDF is generated from

uncorrected OCR text.
its heavy-duty vehicles would suffer a 15 under the California heaLvy-duty regua- flI. DIscussioN
to 20 -percent fuel economy penalty in tions for the-1978 model year. Stringency and Compelling Conditions.
order to meet the 1983 California stand- Under section 209(b) of the Act. the Under one of the criteria of section 209
ards. Finally, the CARB estimated cost Administrator Is requireed to grant the (b) of the Act, I am authorized to with-
increases for 1983 model year gasoline-. State of California a w alver of Federal hold a waiver from California If I find
powered and diesel-powered heavy-duty preemption, after opport unity for a pub- that California "does not require stand-
vehicles of approximately 150 and 300 lic hearing, unless he finds that the ards more stringent than applicable Fed-
dollars per vehicle, respectively, above State of California dotes not require real standards to meet compelling and
1980 model year costs.4 standards more stringent than applicable extraordinary conditions." Based on the
III. FINDINGS AND DECISION Federal standards to aeet compelling findings of previous waiver decisions and
and extraordinary con itions, or that other information generally available,: I
Having given due consideration to the such State standards an d accompanying believe that both sets of 1979 California
record 6f the public hearing, all mate- enforcement procedure 5 are not con- standards are clearly more stringent
rial submitted for the record, and other sistent with section 202 iforcement
(a) of the pro-
Act. than the currently applicable 1977 and
relevant information, I find that I can- State standards and ento be consistent subsequent model year Federal standards
not make the determinations required cedures are deemed not ere is inadequate of 16 grams per brake horsepower hour
for a denial of a waiver under section with section 202(a) if thedevelopment and (gms/BHP-hr) hydrocarbons
209(b) of the Act, and therefore, I here- lead time to permit the c oxides of nitrogen (NOx), and(HC)40
by waive application of section 209 (a) of application of the requ Isite technology. BR-hr carbon monoxide (CO),gins/ as
the Act to the State of California with giving appropriate cons Ideration to the
respect to the following section of Title cost of compliance wi thin that time measured under the engine dynamome-
13 of '-the California Administrative frame, or if the Federa 1 and California ter procedure
Code: test procedures are inco osistent. For the Consistency. Under section 209(b), I
Section 1956.5, adopted October 5, reasons given below, I Iiave determined may also deny a California waiver re-
1976, and "California Exhaust Emission that I cannot make the Iindings required quest If I find that the California "stand-
Standards and Test Procedures for 1979 for the denial of a wal ver If California ards and accompanying enforcement
and Subsequent Model-Year Heavy-Duty satisfies the condition of this waiver, procedures are not consistent with sec-
Engines and Vehicles," adopted October However, if amendment s to the current tion 202(a)" of the Act. The various
5, 1976, with respect to the 1980-1982 Federal heavy-duty exhaust emission manufacturers all stressed that Call-
tion prcedures 'fornia should adopt heavy-duty exhaust
model year, and 1983 and subsequent. standards and certiflca td fcr the 1979 emission test procedures that were Iden-
model years California standards and are subsequently adopt
certification procedures. model year, I may then have to recon- tical to the applicable Federal procedures
A copy of the above standards and sider whether this Califiornia waiver will for each corresponding model year, and
procedures, as we]l as the record of the remain in effect. that any-waiver granted to California
should be conditioned on such action
hearing and those documents used in ar- IL BACKGRCoUN by California. Ih respo)3se to the ques-
'riving at this ,decision, is available for
public inspection during normal working On October 5, 1976, t1ie California Air tion of consistency, the CARB stated
hours (8:00 am. to A:30 pm.) at the Resources Board (CAR B) adopted ex- 2&-e 36 FR 8172 (April 30. 1971); 40 FR
U.S. Environmental Protection Agency, haust emission standardIs and certflca- 23102. 23105 (May 28, 1975); State of Call-
Public Information Reference Unit, tion procedures for 1979 and subsequent fornia, Air Resources Board Staff Report 76-
Room 2922 (EPA Library), 401 M model year heavy-duty motor vehicles 20-2, October 5, 1976. at 1; Letter from
Street, S.W., Washington, D.C. -20460. and engines. These Call fornia standards Stanley W. Legro, Assistant Administrator
Copies of the standards and test pro- are (expressed In grams per brake horse- for Enforcement, EPA. to William H. Lewis,
Jr. Executive Officer of the CARB, October
cedures are also available upon request power hour) : 15. 1975; Letter from William H. Lewis, Jr
from the California Air Resources Executive OMcer of the CARB. to Russell
Board, 1102 Q Street, Sacramento, Cali- Hydro- Train, former Administrator of the EPA.,
fornia 95812; Hydro. Carben Oxides carbong November 12, 1976; Transcript of Public
Model yer carbons men
Dated: June 10, 1977. * oxk d troth oluss! Hearing to Consider California's Request for
nltrogen Waiver of Federal
to Exhaust Preemption With Respect
Emhnlson Standards and Test
25 ........ 5Procedures for 1979 and Subsequent Model
Administrator. 1 ................... t orr Year Heavy Duty Motor Velltcles. and Ap-
[FR Doc.77-17838 Piled 6-21-77;8:45 aml 15 23 7,.5 .......... plicatlon of SHED Evaporative Test Proce-
19S to 192 ................ :5 ........ 5 dures for 1978 and Subeequent Model Year
or 2 .. 0 8.-87,
Motor Vehicles, January 27. 19T7 at 14.
[FRL 737-3] L0 111-112 (hereinafter Tr.'); Letter
1933 and
subsequent ..... .5 5........ 4.5 ffom George P. Hanley, General Motors Tech-
CALIFORNIA STATE MOTOR VEHICLE nical Center, General Motors Corporation, to
9Under the 1979 and 1,G0 to 11%standards, thp mnnu- Benjamia R.
Waiver of Federal Preemption facturers have the option of zrty lllc ch -tne Source Enforcement Division. EPA, February
family to either set o stnndards oppUtable in a gsen 18. 1977.
I. INTRODUCTION " model year. Although it is arguable that one set of
By this decision, issued under section On November 12, 197 6, California re- California standards (ie., 1.5 gms/BHP-hr.
209(b) of the Clean Air Act, as amended queted a waiver of Fed[eral preemption HC. 25 gmsBHP-hr, Co. 7.5 gms/BHP-hr.
(hereinafter the "Act")," I am granting for these standards an d accompanying NOx). as applicable to diesel-powered heavy-
the State of California a waiver of Fed- certification proceduers. A public ipUbic hearing duty vehicles and engines, may be less
a'n to stringent than the corresponding set of 1978
eral preemption to enforce the 1979 was helqlin January 27, 1977,purusantto California standards (I.e. 1.0 gms/BHP-br.
California heavy-duty motor vehicle and notice published by the EPA in the FaD- HC. 25 gms/BHP-hr. CO, 7.5 gms/BHP-hr.
ERAL REGISTER in order to consider this NOx). see Letter from George P. Hanley to
engine exhaust emission standards and waiver request and othe rs This decision Benjamin R. Jackson. supra at 2. In any
* certification procedures. It is a condition will deal solely with th e waiver request event, this set of Callfornl4 standattis is
of this waiver that California also adopt for the 1979 model yea r. The 1980 and clearly more stringent than the applicable
an alternate set of standards and certifi- subsequent model year standards and Federal standards. See State of California,
cation procedures for the 1979 model year certification procedures will be the sub- Air Resources Board. Stall Report 7-20--2.
supra at 10; Letter from William H. Lewis.
that are identical to those applicable ject of a waiver decision which will be Jr.. to Russell Train. supra at 1. 2.
published separately in the FEDERAL REG- 4 See 40 C.P.R. 86.077-10 (1976) (gasoline-
ISTER. fueled heavy-duty engines); 40 C.F.R.
See T!r.. supra note 9. at 98. 138. 8es77-11 (1916) (diesel-fueled heavy-duty
See State of California Staff Report, at 9. engines).
- 142 U.S.C. 1857f-6a(b). 3
,See 42 FR 1065 (Jaunu .y 5. 1977). See Tr. at 160-161. 168-170. 185-186.



that It had adopted amendments to its these amendments would require exten- as noted above, would amend Its 1979
heavy-duty engine exhaust emission test sive revisions to its existing diesel test procedures to be consistent with the
procedures specifically in anticipation of facilities in addition to the procurement 1979 Federal procedures in the event that
a similar action by the EPA and would of new instrumentation." On the other .EPA concluded that It could not promul-
defer implementation of its amended hand, Ford stated that there would be gate the Identical regulations for 1979
heavy-duty test procedures until such insufficient lead time prior to the 1979 on account of lead time problems."
time as they become effective at the model year in which to meet either the Although the record Indicates that the
Federal level. The CARB also stated Federal or California 1979 certification requisite emission control technology Is
that it would amend its 1979 model year requirements if the proposed Federal available to meet the requirements of the
test procedures, except in those areas standards and certification procedures 1979 California heavy-duty 'standards
where there have been historical differ- were promulgated in the near future," and certification procedures," I am re-
ences, to conform to those finally adopted ,However, Ford also stated that while the quired to deny California a waiver under
by the EPA for 1979.7 In light of the California certification procedures must section 209(b) of the Act If I find that
above discusison, I am reasonably as- be further clarified before they can be there is Insufficient lead time to apply
sured that the California certification implemented," it would only require 12 this technology to meet these standards
procedures for any particular model year months of lead time to comply with the and certification procedures, In the case
will remain consistent with the ap- 1979 California regulations under cir- of the 1979 California heavy-duty regu-
plicable Federal procedures, and that, cumstances where the 1978 Federar reg- lations, the lead time Involved must be
therefore, the test of consistency will ulations continued in effect for the 1979 spent In tooling and setting up the facili-
have been met.8 In any event, if Cali- model year.' ties In order to actually test and produce
fornia satisfies the condition of this As a solution to these lead time prob- the vehicles in accordance with these
waiver, I have decided that for the 1979 lems, some manufacturers suggested that regulations. Both the record and the con-
model year, EPA will accept the data used the Administrator condition any waiver clusions of my staff with respect to lead
to successfully certify any heavy-duty time in the case of the proposed Federal
granted to California on the adoption by heavy-duty test procedures' Indicate
engine under the California test proce- the CARB of certification procedures
dures as demonstrating that such en- that there Is insufficient lead time to re-
gine complies with the applicable Fed- identical to those Federal procedures in quire all of the manufacturers to com-
eral standards, and a Federal heavy- effect for.the 1979 model year, or on theply with the California heavy-duty test
duty engine certificate for this engine adoption by the CARB of optional cer- procedures as a mandatory requirement
will be issued on this basis. tification procedures for any model year for the 1979 model year." Since General
Motors and Ford have already Initiated
-Lead Time and Technology. Various that are identical to the applicable Fed-
manufacturers indicated' that -the ques-
efforts to comply with the 1979 Califor-
eral procedures." In adopting the 1979 nia regulations,' the possibility does exist
tion of adequate lead time was dependent California certification procedures, the that the manufacturers' estimates of lead
on the promulgation of the proposed
amendments to the Federal heavy-duty CARB stated that ithlad relied somewhat time may have been pessimistic, How-
on EPA's preliminary judgment with ever, plausible reasons for these esti-
vehicle regulations." General Motors, In- mates were given by the various manu-
ternational Harvester and Chrysler respect to the requisite amount of lead
facturers," and no concrete reasons for
stated that they would have lead time time needed to meet the requirements not accepting them were advanced by the
problems In meeting the 1979 California prescribed under these procedures, and CARB or any other witness,
certification requirements associated Accordingly, I conclude that the in-
with instrumentation acquisition; set-up
and check-out in the event that identical 2See 89-90. dustry has met Its burden of proof that
1979 Federal heavy-duty vehicle certifi- 3See 161-162. there Is insufficient lead time to comply
cation requirements were not promul- " Ford contended that the 1979 California with the requirements set forth in the
certification procedures must be clarified
gated in the near future.", General Mo- since it believed that they were infeasible, 1979 California heavy-duty vehicle and
tors further stated that it would be un- impractical, and ambiguous. See Memoran- engine regulations within the time framo
able to meet the California requirements dum from Helen 0. Petrauskas, Ford Motor specified. However, I have decided to
for Its 1979 model year diesel-powered Company, to Benjamin R. Jackson, Director,
Mobile Source Enforcement Division, EPA, waive the application of section 209(a)
heavY-duty vehicles and engines regard- February 21, 1977, at 14; see also Tr. at of the Act to California for the 1979 Cali-
less of when the proposed Federal 163-164, 170-177. However, the CARB has fornia heavy-duty standards and certifi-
amendments were promulgated, since Indicated that it would be possible to con-
duct, testing in exact compliance with the cation procedures if California subse-
requirements of the California regulations quently adopts an optional set of stand-
'Sce Tr. at 14, 32-33, 191. on a timely basis for the 1979 model year. ards and certification procedures for
See TY. at 14. See Tr. at 34-40. Furthermore, the EPA's
'See S. Rep. No. 403, 90th Cong., 1st Sess. Motor Vehicle Emission Laboratory in Ann 1979 that are Identical to those applicable
33 (1967). Arbor, Michigan. has satisfactorily run tests under the California heavy-duty regula-
9See Tr, at 30-32. 38, 44, 67-68, 89-90, under these certification procedures. Never-
99-100, 115, 119-120, 161, 177-184, 20.5, theless, the EPA may promulgate Federal
"0See 41 FR 21292 (May 24, 1976). heavy-duty engine regulations for 1979 and 1SSee Tr. at 14,22,31-33,
11See Tr. at 44, 67-68, 89-90, 99-100, 115, subsequent model years In the future that "0See Tr. at 165, 205 See also memorandum
119-120, 205. Under the California 1979 cer- Incorporate the industry's comments on the from Robert Maxwell, Emission Control
tification procedures, HC emissions must be proposed Federal regulations, see 41 FR Technology Division, EPA, to Daniel Stein-
measured during certification by a heated 21292 (May 24, 1976), In order to accom- way, Mobile Source Enforcement Division,
flame Ionization detector (HFID) instead of modate the various test facilities utilized by EPA, Marcb 17, 1977, at 6.
the non-dispersive infrared (NDIR) analyzer the Industry. See Letter from John P. De- -See 41 FR 21292 (May 24,1976),
that had been used In testing gasoline-fueled Kany, Director, Emission Control Technology " See Memorandum from Robert Maxwell
engines In prior model years. In addition, Division, EPA, to T. M. Fisher, General Mo- to Daniel Steinway, supra note 20, at 6.
these procedures also require that NOx emis- tors Technical Center, General Motors Cor- =See Tr. at 142; see also Memorandum
sions be measured by a chemiluminescence poration, March 1, 1977. from Helen 0. Petruskas to Benjamin R.
(CL) analyzer In order to certify both gas- " See Ti. at 163-165, 170-178. Jackson, supra note lb, at 16.
oline and diesel-powered engines in Cali- "See Tr. at 91, 160, 186,206.. "ee Tr, at 44, 67-08, 89-90, 110-120,
fornia for the 1979 model year. I7See Ti. at 163, 168, 186, 191, 206. 161-164, 183-185.


tions for the 1978 model year. This limi- by waive application of section 209(a) of low. In some cases these applications -
tation is placedon the waiver for the 1979 the Act to the State of California with have recently been. received; in other
California heavy-duty regulations -in di- respect to the following section of Title cases, applications have been amended by
rect response to the recommendations 13 of the California Administrative Code the submission of additional supporting
of the vehicle manufacturers and is in if California satisfies the condition of data, the election of a new method of
accordance with the intent of California this waiver: ' ' support, or the submission of new "offer
to maintain consistency with the 1979 Section 1956.5, adopted October 5. to pay" statements.
Federal certification procedures. 1976, and "California Exhaust Emission In the case of all applications, the
With regard to the cost of compliance Standards and Test Procedures for 1979 labeling furnished by the applicant for
with the 1979 California heavy-duty ve- and Subsequent Model-Year Heavy- the product will be available for inspec-
hicle regulations, very little specific in- Duty Engines and Vehicles," adopted tion at the Environmental Protection
formation was provided by the manu- October 5, 1976, as applicable to the 1979 Agency, Room 209, East Tower, 401 M
facturers at the hearing concerning the model year standards and ceritfleaton Street SW., Washington D.C. 20460. In
cost of purchasing the instrumentation procedures. If# amendments to the cur- the case of applications subject to the
required under these regulations. rent Federal heavy-duty exhaust emis- new Section 3 regulations, and applica-
Objections to Granting the Waiver. sions standards and accompanying en- tions not subject to the new- Section 3
Certain manufacturers objected to the forcement procedures are subsequently regulations which utilize either the 2(a)
1979 California heavy-duty vehicle and adopted for the 1979 model year, I may or 2(b) method' of support specified in
engine exhaust emission standards and then have to reconsider the question of the Interim Policy Statement, all data
certification procedures bn the grounds whether this California waiver will re- citations submitted or referenced by the
that these requirements would not result main in effect. applicant In support of the application
in significant improvements in the air A copy of the above standards and will be mnade available for inspection at
quality in the State of Californla.n How- procedures, as well as the record of the the above address. This' information
ever, such arguments all fall within the hearing and those documents used In (proposed labeling and, where applicable,
EPA practice of leaving the decision on arriving at this decision, Is available for data citations) will also be supplied by
controversial matters of public policy to public inspection during normal working mail, upon'request. However, such a re-
California's judgment. hours (8:00 a~m: to 4:30 pm.) at the quest should be made only when circum-
U.S. Environmental Protection Agency, stances make It inconvenient for the in-
IV. FNDING AND DECISION Public Information Reference Unit, spection to be made at the Agency offices.
Having given due consideration to the Room 2922 (EPA Library), 401 1. Street, Any person who (a) is or has been an
-record of the public hearing, all mate- S.W. Washington, D.C. 20460. Copies of applicant, (b) believes that data he de-
rial submitted for that record, and other the standards and test procedures are veloped and submitted to EPA on or after
relevant information, I find that I can- also available upon request from the Jfanuary 1, 1970, is being used to support
not *make the determinations required California Air Resources Board, 1102 Q an application described in this notice,
for a denial of the waiver under section Street, Sacramento, California 95812. (c) desires to assert a claim under Sec-
209(b) of the Act provided that Cali- Dated: June 10, 1977. tion 3(c) (1) 0D) for such use of his data,
fornia also adopts an optional set- of and (d) wishes to preserve his right to
heavy-duty standards and certification. DoUGLAs M. CoS=, have the Administrator determine the
procedures for the 1979 model year that Administrator. amount of reasonable compensation to
are identical to those in effect in Califor- [FR Doe.77-17839 Piled 6-21-77;8:45 am] which he Is entitled for such use of the
nia for the 1978 model year. Based upon data or the status of such data under
the above discussion and fiding, I here- Section 10 must notify the Administrator
[OPP-33000/510 PRL 760-21 and the applicant named in the notice
2' It has always been California's intent to DATA TO BE CONSIDERED IN SUPPORT in the FEDERAL REsTEmR of his claim by
adopt 1979 standards that were of the same OF APPLICATIONS certified mail. Notification to the Admn-
stringency as the 1978 standards, when istrator should be addressed to the Prod-
viewed in the context of the applicable cer- - Receipt of Application for Pesticide uct Control Branch, Registration Divi-
tification procedures. See Tr. at 14; State of Registration sion (WH-567), Office of Pesticide Pro-
California, Air Resources Board, Staff Report On November 19, 1973, the Environ- grams, Environmental Protection
76-20-2, supra note 4, at 10. The stringency
of a particular set of emission standards Is mental Protection Agency (EPA) pub- Agency, 401 M Street SW., Washington
determined by the combined effect of the lished in the FEDERAL REacsrxn (39 FR D.C. 20460. Every such claimant must
numerical value of the standards and the 31862) its interim policy with respect to include, at a minimum, the information
certification procedures used to demonstrate the admiln traton of Section 3(c) (1) listed in the Interim Policy Statement of
compliance with these standards. 42 PR 3192, (D) of the Federal Insecticide, Fungi- November 19, 1973.
3194 (January 17, 1977). Therefore, In order cide, and Rodenticide Act (FIFRA), as Specific questions concerning applica-
to retain the same degree of stringency in a amended ("Interim Policy Statement"). tions made to the Agency should be ad-
particular set of standards, any change to the
certification procedures must be accom- On January 22, 1976, EPA published In dressed to the designated Product Man-
panted-by a corresponding adjustment to the the FEDERAL REGisTER a document en- ager (FM), Registration Division (WH-
standards themsbIves. As a result, although itled "Registration of a Pesticide Prod- 567), Office of Pesticide Programs, at the
the manufacturers' concerns -were addressed uct-Consideration of Data by the above address, or by telephone as follows:
primarily to the 1979 California certifieson Administrator in Support of an Applica- 1 11. 12, and 13-202/755-9315
procedures, the condition being impose? by tion" (41 FR 3339). This document de- P21 and 22-202/426-2454
this decision requiring Callfolnia to adopt scribed the changes in the Agency's pro.- P% 2-1--202/755-2196
the 1978 certification procedures for 1979 in- P21 31-202/426-2635
eludes the adoptlodi of the 1978 standards as cedures for Implemexrtlng Section 3(c)
(1) (D) of FIFRA, as set out in the In- P2M 33-202755-9041
well.- (California has been previously granted P11, 16, and 17-202/426-9425
a waiver for the 1978 standards and certifica- terim Policy Statement which were f- 1"Ll 23--202/755-1397
tion procedures. See Letter from Stanley W, fected by the enactment of the recent PE 25-202/755-2632
Legro to William H. Lewis, Jr., supra note 4.) amendments to FIPRA on November 28, M-1 32-202/426-9485
This condition will permit manufacturers to 1975 (Pub. L. 94-140), and the new reg- P1U 3--202/42W-9-90
certify California heavy-duty vehicles and ulations governing the registration and
engines in 1979 (the manufacturers have the
re-registeration of peiticldes which be--
The Interim Policy Statement requires
option of-certifying to either the 1978 stand- that claims for compensation be filed on
ards and procedures or those originally came effective on August 4, 1975 (40 CFR or before August 22, 1977. With the r-nx
adopted for 1979) and will also allow Cali- Part 162). ception of 2(c) applications not subjint
fornia's intent with respect to stringency to Pursuant to the procedures set forth
be realized. to the new Section 3 regulations, and for
See Tr. at 167-168,193, 203-204. in these FEDERAL REcisrax documents, which a sixty-day hold period for claim
See 41 FR 44209, 44210 (October 7, 1976); EPA hereby gives notice of the applica- s provided, EPA will not delay any regis-
42 FR 3192, 3194 (January 17, 1977). tions for pesticide registration listed be- tration pending the assertion of claims