Approval and Promulgation of Implementation Plans; California Air Resources Board-In-Use Heavy-Duty Diesel-Fueled Truck and Bus Regulation, Drayage Truck Regulation and Ocean-Going Vessels Clean Fuels Regulation, 40652-40660 [2011-17232]
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Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Proposed Rules
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IV. Procedural Determinations
Executive Order 12866—Regulatory
Planning and Review
This rule is exempted from review by
the Office of Management and Budget
(OMB) under Executive Order 12866.
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Other Laws and Executive Orders
Affecting Rulemaking
When a State submits a program
amendment to OSM for review, our
regulations at 30 CFR 732.17(h) require
us to publish a notice in the Federal
Register indicating receipt of the
proposed amendment, its text or a
summary of its terms, and an
opportunity for public comment. We
conclude our review of the proposed
amendment after the close of the public
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rulemaking process and include them in
the final rule.
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List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface
mining, Underground mining.
Dated: June 1, 2011.
William L. Joseph,
Acting Regional Director, Mid-Continent
Region.
[FR Doc. 2011–17297 Filed 7–8–11; 8:45 am]
BILLING CODE 4310–05–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2011–0544; FRL–9434–9]
Approval and Promulgation of
Implementation Plans; California Air
Resources Board—In-Use Heavy-Duty
Diesel-Fueled Truck and Bus
Regulation, Drayage Truck Regulation
and Ocean-Going Vessels Clean Fuels
Regulation
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
revisions to the California State
Implementation Plan (SIP) that EPA
expects to be submitted by the
California Air Resources Board (CARB
or Board). These revisions concern three
regulations that reduce emissions of
diesel particulate matter (PM), oxides of
nitrogen (NOX), sulfur dioxide (SO2) and
other pollutants from in-use, heavy-duty
diesel-fueled trucks and buses and from
ocean-going vessels (OGV) operating
within California jurisdiction. This
proposed approval is based on proposed
regulations submitted by CARB and an
accompanying request to proceed with
SIP review while the State completes its
public review and agency adoption
process. EPA will not take final action
on the regulations until California
submits the final adopted versions to
EPA as a revision to the California SIP.
Final EPA approval of the regulations
and incorporation of them into the
California SIP would make them
federally enforceable. We are providing
a 30-day comment period for today’s
proposal.
DATES: Any comments must arrive by
August 10, 2011.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2011–0544, by one of the
following methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
2. E-mail:
R9truck_dray_OGVcomments
SUMMARY:
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3. Mail or deliver: Roxanne Johnson
(Air U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
www.regulations.gov or e-mail.
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
included as part of the public comment.
If EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, EPA may
not be able to consider your comment.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at EPA Region IX, 75 Hawthorne Street,
San Francisco, California. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Roxanne Johnson, EPA Region IX, (415)
947–4150, johnson.roxanne@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. The State’s Submittal
A. What regulations did the State submit?
B. Are there other versions of these
regulations?
C. What is the purpose of the submitted
regulations?
D. What requirements do the regulations
establish?
II. EPA’s Evaluation and Proposed Action
A. How is EPA evaluating the regulations?
B. CARB Regulations Meeting CAA SIP
Evaluation Criteria
1. Did the State provide adequate public
notification and comment periods?
2. Does the State have adequate legal
authority to implement the regulations?
3. Are the regulations enforceable as
required under CAA section 110(a)(2)?
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4. Do the regulations interfere with
reasonable further progress and
attainment or any other applicable
requirement of the Act?
5. Will the State have adequate personnel
and funding for the regulations?
6. EPA’s Regulation Evaluation Conclusion
C. Proposed Action, Public Comment and
Final Action
III. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What regulations did the State
submit?
By letters dated May 11 and May 19,
2011, CARB submitted to EPA three
proposed regulations, with requests for
parallel processing.1, 2 See May 11, and
May 19, 2011 letters to Jared
Blumenfeld, Regional Administrator,
EPA Region 9, from James N. Goldstene,
Executive Officer, CARB.
Table 1 below, lists the regulations
addressed by this proposal. These
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regulations include: (1) Regulation to
Reduce Emissions of Diesel Particulate
Matter, Oxides of Nitrogen and Other
Criteria Pollutants, from In-Use HeavyDuty Diesel-Fueled Vehicles (‘‘Truck
and Bus Regulation’’); (2) In-Use Onroad Diesel-Fueled Heavy-Duty Drayage
Trucks (‘‘Drayage Truck Regulation’’);
and (3) Fuel Sulfur and Other
Operational Requirements for OceanGoing Vessels within California Waters
and 24 Nautical Miles of the California
Baseline (‘‘OGV Clean Fuels
Regulation’’).
TABLE 1—REGULATIONS SUBMITTED BY CALIFORNIA FOR PARALLEL PROCESSING
California Code of Regulations (CCR), title 13,
section No.
Regulation title
Section 2025 .......................................................
Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other
Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled Vehicles.
In-Use On-road Diesel-Fueled Heavy-Duty Drayage Trucks.
Fuel Sulfur and Other Operational Requirements for Ocean-Going Vessels within California
Waters and 24 Nautical Miles of the California Baseline.
Section 2027 .......................................................
Section 2299.2 3 ..................................................
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CARB’s May 11, 2011 parallel
processing request includes the CARB
notice of public hearing, held on June
23, 2011 and the CARB Staff Report,
‘‘Initial Statement of Reasons for
Proposed Rulemaking: Proposed
Amendments to the Regulations ‘Fuel
Sulfur and Other Operational
Requirements for Ocean-Going Vessels
within California Waters and 24
Nautical Miles of the California
Baseline,’ ’’ May 2011. The proposed
OGV Clean Fuels Regulation was
submitted as appendix A to the CARB
Staff Report, but since the version in
appendix A only includes the
subsections of the regulation that are
proposed for amendment, and not the
unchanged subsections, we have also
reviewed the original regulation
approved in 2008 together with the
proposed amendments.
CARB’s May 19, 2011 parallel
processing request includes CARB’s
notice of public availability of the
proposed Truck and Bus Regulation and
proposed Drayage Truck Regulation and
the initiation of a 15-day comment
period. CARB’s 15-day notice refers to
two attachments, one of which shows
the most recent modifications to the
Truck and Bus Regulation and the
second of which shows the most recent
modifications to the Drayage Truck
Regulation. Herein, we refer to these
versions of the regulations as ‘‘proposed
regulations.’’ The versions of the
regulations referred to in the 15-day
notice as ‘‘attachment 1’’ and
‘‘attachment 2’’ are the versions of the
regulations that we have evaluated
herein. CARB’s May 19, 2011 request
also includes: Two resolutions dated
December 17, 2010 through which
CARB approved amendments [to the
Truck and Bus Regulation and Drayage
Truck Regulation] for adoption by the
CARB Executive Officer (EO) once he
makes further modifications to the
regulations consistent with the
resolutions, and the CARB staff report,
‘‘Initial Statement of Reasons for
Proposed Rulemaking: Proposed
Amendments to the Truck and Bus
Regulations, the Drayage Truck
Regulation, the Tractor-Trailer
Greenhouse Gas Regulation,’’ October
2010.
EPA is granting CARB’s request that
EPA ‘‘parallel process’’ our review and
propose action on the three regulations.
All of the relevant documents are
available for review in the docket for
today’s proposed rulemaking.
1 Under EPA’s ‘‘parallel processing’’ procedure,
EPA proposes rulemaking action concurrently with
the State’s proposed rulemaking. If the State’s
proposed rule is changed, EPA will evaluate that
subsequent change and may publish another notice
of proposed rulemaking. If no significant change is
made, EPA will publish a final rulemaking on the
rule after responding to any submitted comments.
Final rulemaking action by EPA will occur only
after the rule has been fully adopted by California
and submitted formally to EPA for incorporation
into the SIP. See 40 CFR part 51, appendix V.
2 Technically, the versions of the regulations
submitted to EPA by CARB for parallel processing,
and evaluated herein, represent proposed
modifications and amendments to regulations
previously adopted by CARB, but because the
previously-adopted regulations were not submitted
for incorporation into the SIP, i.e., the regulations
would be new to the SIP, we refer to them as
‘‘proposed regulations’’ rather than ‘‘proposed
amendments’’ or ‘‘proposed modifications’’ in this
document. To be clear, the versions of the truck,
bus, and drayage truck regulations that we have
evaluated herein are the versions released for public
comment on May 19, 2011, and the version of the
ocean-going vessel regulation that we have
evaluated herein is the version released for public
comment on April 26, 2011.
3 In addition to the proposed version of 13 CCR
section 2299.2, CARB also submitted the proposed
version of 17 CCR section 93118.2. The two
regulations are fundamentally identical and reflect
the authorities granted to CARB in the California
Health and Safety Code to regulate marine vessel
emissions (section 2299.2, title 13, CCR) and to
regulate sources of toxic air contaminants (section
93118.2, title 17, CCR). We see no need for both
regulations to be approved into the SIP and propose
to approve only the title 13 regulation into the
California SIP.
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B. Are there other versions of these
regulations?
The Truck and Bus Regulation was
initially approved by CARB in
December 2008 and became effective
(for State law purposes) in January 2010.
In December 2010, CARB adopted
Resolution 10–44 after considering
amendments to the Truck and Bus
Regulation as initially proposed by
CARB staff and covered by the Notice of
Public Hearing (‘‘45-day Public Notice’’)
and Staff Report, which were initially
published on October 19, 2010, and
staff’s suggested modifications to the
proposed amendments, which were
made in response to comments received
before the CARB public hearing
regarding staff’s initial proposal. CARB
directed staff to modify the initially
proposed amendments consistent with
the suggested modifications and CARB’s
findings as set forth in the resolution.
Resolution 10–44 further directed the
CARB EO to make the modifications to
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the initially proposed amendments to
the Truck and Bus Regulation available
for public comment for a period of 15
days, and to take final action to adopt
the proposed amendments, as modified
in the publicly noticed 15-day changes,
or return to the CARB Board for further
consideration. The version of the
regulation that is subject to CARB’s 15day notice is the one we evaluate herein
for eventual approval into the California
SIP. CARB’s 15-day public comment
period ended June 3, 2011.
The Drayage Truck Regulation was
initially approved by CARB in
December 2007 and became effective
(for State law purposes) in December
2008. In December 2010, CARB adopted
Resolution 10–45 after considering
amendments to the Drayage Truck
Regulation initially proposed by CARB
staff and covered by the 45-Day Public
Notice and Staff Report, and directed
that the proposed amendments be
modified consistent with the CARB
Board’s findings therein and following
the process outlined above for final
adoption of amendments to the Truck
and Bus Regulation. The version of the
regulation that is subject to CARB’s 15day notice, which covers both the Truck
and Bus Regulation and the Drayage
Truck Regulation, is the one we evaluate
herein for eventual approval into the
California SIP.
The OGV Clean Fuels Regulation was
initially approved by CARB in July 2008
and became effective (for State law
purposes) in July 2009. On May 4, 2011,
CARB published a 45-day notice
opening a public comment period and
making available proposed amendments
to the regulation. A public hearing for
the CARB Board to consider adoption of
the amendments was held on June 23,
2011. Following the public hearing on
June 23, 2011, the CARB Board adopted
a resolution that directs the CARB
Executive Officer to take final action to
adopt the amendments that were the
subject of the 45-day notice in a manner
consistent with the requirements of the
California Environmental Quality Act,
and to further modify the OGV Clean
Fuels Regulation to reduce the ‘‘Phase
1’’ sulfur content limit for marine gas oil
from 1.5% to 1.0% beginning on August
1, 2012, subject to an additional 15-day
notice to allow for public comment on
the further modifications. The original
regulation, along with the proposed
amendments that was the subject of
CARB’s 45-day notice, is the version we
evaluate herein for eventual approval
into the California SIP. For evaluative
purposes herein, we also recognize the
CARB Board’s action on June 23, 2011
to direct the CARB Executive Officer to
modify the regulation to reduce the
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‘‘Phase 1’’ sulfur content limit for
marine gas oil from 1.5% to 1.0%
beginning on August 1, 2012, as set
forth in attachment B to CARB’s
proposed Resolution 11–25 dated June
23, 2011.
As described above, there are
previous versions of the three
regulations, but none of the previous
versions were submitted to EPA for
incorporation into the SIP. For a more
detailed discussion of CARB’s adoption
process for these regulations and a
discussion of the previous versions of
these regulations adopted by the State
but not submitted to EPA, please see the
documentation submitted by CARB,
included in the docket for today’s
rulemaking.
C. What is the purpose of the submitted
regulations?
The purpose of the three regulations
is to reduce NOX, SO2 and PM
emissions from in-use heavy-duty
diesel-fueled trucks and buses, drayage
trucks, ocean-going vessels (OGV), and
to meet CAA requirements. NOX is a
precursor responsible for the formation
of ozone, and NOX and SO2 are
precursors for fine particulate matter
(PM2.5).4 At elevated levels, ozone and
PM2.5 harm human health and the
environment by contributing to
premature mortality, aggravation of
respiratory and cardiovascular disease,
decreased lung function, visibility
impairment, and damage to vegetation
and ecosystems.
California has a number of
nonattainment areas for the National
Ambient Air Quality Standards
(NAAQS) for ozone and PM2.5, and the
CAA requires states to submit SIP
revisions that ensure reasonable further
progress and that demonstrate
attainment of the NAAQS within such
areas. See, generally, part D of title I of
the CAA. Reductions from these
regulations play a critical role in
assuring that areas such as the South
Coast Air Basin and the San Joaquin
Valley Air Basin meet the NAAQS for
ozone and PM2.5.
D. What requirements do the regulations
establish?
Truck and Bus Regulation
CARB’s Truck and Bus Regulation
(i.e., 13 CCR section 2025) requires fleet
(defined as one or more vehicles)
owners to upgrade their vehicles to meet
4 SO belongs to a family of compounds referred
2
to as sulfur oxide (SOX). PM2.5 precursors include
SO2, NOX, volatile organic compounds, and
ammonia. See 40 CFR 51.1000. CARB generally
uses the term, sulfur oxides (SOX); herein, we use
SO2 to refer to the same pollutant type.
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specific performance standards for NOX
and PM. The regulation applies to
diesel-fueled trucks and buses that are
privately owned, federally owned, and
to publicly and privately owned school
buses, that have a manufacturer’s gross
vehicle weight rating (GVWR) greater
than 14,000 pounds (lbs). (Local and
state government owned diesel-fueled
trucks are already subject to other CARB
regulations.) Nearly all of the vehicles
affected by the regulation are on-road
vehicles, but the regulation also applies
to yard trucks with off-road engines
used for agricultural operations and
two-engine street sweepers with such
engines. The regulation exempts certain
categories of trucks and buses, many of
which, such as drayage trucks, are
subject to different CARB regulations.
Key concepts used in the Truck and
Bus Regulation include ‘‘2010 Model
Year Emissions Equivalent Engine,’’
‘‘PM BACT,’’ and ‘‘Verified Diesel
Emission Control Strategy’’ (VDECS). As
set forth in 13 CCR section 2025(d)(3),
‘‘2010 Model Year Emissions Equivalent
Engine’’ means emissions from: (A) An
engine certified to the 2004 through
2006 model year (MY) heavy-duty diesel
engine emissions standard that is
equipped with the highest level VDECS
and that reduces NOX emissions by at
least 85%; (B) An engine that was built
to the 2004 engine emission standard
and was not used in any manufacturer’s
averaging, banking, or trading program
that is equipped with the highest level
VDECS and that reduces NOX exhaust
emissions by at least 85%; (C) An
engine certified to the 2007 MY heavyduty diesel engine emissions standard
that meets PM BACT and that reduces
NOx exhaust emissions by more than
70%; (D) An engine certified to the 2010
MY or newer heavy-duty certified to the
2010 MY or newer heavy-duty diesel
engine emissions standard that meets
PM BACT; (E) A heavy-duty engine
certified to 0.2 grams per brakehorsepower-hour (g/bhp-hr) or less NOX
emissions level and 0.01 g/bhp-hr or
less PM emissions level; or (F) An offroad engine certified Tier 4 engine
emissions standard.
‘‘PM BACT’’ means the technology
employed on the highest level VDECS
for PM or an engine that is equipped
with an original equipment
manufacturer (OEM) diesel particulate
filter and certified to meet the 0.01 g/
bhp-hr certification standard. See 13
CCR section 2025(d)(48). ‘‘Verified
Diesel Emission Control Strategy’’
(VDECS) means an emission control
strategy, designed primarily for the
reduction of diesel PM emissions,
which has been verified pursuant to the
Verification Procedures. VDECS can be
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verified to achieve Level 1 diesel PM
reductions (25%), Level 2 diesel PM
reduction (50%), or Level 3 diesel PM
reductions (85%). VDECS may also be
verified to achieve NOX reductions. See
13 CCR section 2025(d) (60).
The basic requirements of the
regulation are set forth in subsections
(e), (f), and (g). Under these subsections,
different sets of requirements are
established for subject vehicles with a
GVWR 26,000 lbs or less [subsection (f)]
and subject vehicles with a GVWR
greater than 26,000 lbs [subsection (g)].
Under subsection (f), with certain
exceptions, subject vehicles with a
GVWR 26,000 lbs or less must, starting
January 1, 2015, be equipped with a
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‘‘2010 model year emissions equivalent
engine’’ pursuant to the schedule shown
in table 2. School buses, that otherwise
would be subject to subsection (f), are
subject to a different set of requirements
in subsection (k). Under subsection (k),
with certain exceptions, all school buses
must comply with PM BACT by 2014.
TABLE 2—COMPLIANCE SCHEDULE UNDER SECTION 2025(f) BY ENGINE MODEL YEAR FOR LIGHTER HEAVY-DUTY TRUCKS
Compliance date
as of January 1
Existing engine model year
1995 and older ........................................................................
1996 .........................................................................................
1997 .........................................................................................
1998 .........................................................................................
1999 .........................................................................................
2003 and older ........................................................................
2004–2006 ...............................................................................
All engines ...............................................................................
Under subsection (g), with certain
exceptions, subject vehicles with a
GVWR more than 26,000 lbs must,
starting January 1, 2012, meet the PM
Best Available Control Technology
(BACT) requirement and must upgrade
2015
2016
2017
2018
2019
2020
2021
2023
Requirement
2010 model year emission equivalent.
to a 2010 MY emissions equivalent
engine pursuant to the schedule shown
in table 3. Fleets with vehicles
otherwise subject to subsection (g) may
opt for a different phase-in compliance
schedule for PM BACT but must comply
with section 2025(g) by 2023. See 13
CCR section 2025, subsections (h)
(‘‘Small Fleet Compliance Option’’) and
(i)(‘‘Phase-in Option’’).
TABLE 3—COMPLIANCE SCHEDULE UNDER SECTION 2025(G) BY ENGINE MODEL YEAR FOR HEAVIER HEAVY-DUTY
TRUCKS
Compliance date install PM filter by January 1
1993 and older ........................................................................
1994–1995 ...............................................................................
1996–1999 ...............................................................................
2000–2004 ...............................................................................
2005–2006 ...............................................................................
2007 or newer .........................................................................
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Engine model year
No Requirement ......................................................................
No Requirement ......................................................................
2012 .........................................................................................
2013 .........................................................................................
2014 .........................................................................................
2014 if not OEM equipped ......................................................
Section 2025(j) allows credits for early
PM retrofits, fleets that have downsized,
early addition of newer vehicles, hybrid
vehicles, alternative fueled vehicles and
vehicles with heavy-duty pilot ignition
engines that can allow delayed
requirements for other heavier trucks in
the fleet. Fleet owners are required to
meet the reporting and record keeping
requirements of subsections (r) and (s).
Credits are not transferrable except with
appropriate documentation of a change
of business form approved by the EO.
Subsection (l) provides requirements
for drayage trucks and utility vehicles.
Drayage trucks subject to the Drayage
Truck Regulation may be included in
the fleet to comply with the
requirements of the Truck and Bus
Regulation only if all drayage trucks are
included. Starting January 1, 2023, all
drayage truck owners must comply with
the requirements summarized above in
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tables 2 and 3. Drayage trucks may not
utilize any of the credits in subsection
(j) or exemptions and extensions in
subsection (p). Starting January 1, 2021,
all private utility vehicle owners must
comply with the requirements
summarized above in tables 2 and 3.
Subsection (m) provides exemptions
for agricultural fleets that meet the
conditions of this subsection and
remain below annual mileage limits
specified therein. Starting January 1,
2017, all agricultural vehicles that have
exceeded 10,000 miles in any calendar
year since January 1, 2011, must comply
with the requirements summarized
above in tables 2 and 3. This subsection
includes a provision, which allows the
CARB EO to exempt vehicles as
specialty agricultural vehicles as long as
the vehicles meet the requirements of
the subsection and the EO does not
exceed the caps for the number of such
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Compliance date
2010 engine by
January 1
2015
2016
2020
2021
2022
2023
vehicles in the San Joaquin Valley and
Statewide. This section also provides an
optional phase-in for log trucks. Starting
January 1, 2014, 10 percent of the total
log truck fleet must comply with 2010
MY emissions or equivalent, and by
January 1, 2023, 100 percent of the fleet
must be 2010 MY emissions equivalent.
Subsection (p) provides for
exemptions, delays, and extensions. The
categories of vehicles that may qualify
for relief under subsection (p) include
vehicles used exclusively in NOX
exempt areas (which include no
counties within the South Coast Air
Basin or San Joaquin Valley), lowmileage construction trucks, unique
vehicles, low-use vehicles, vehicles
operating with a three-day pass,
vehicles awaiting sale, and vehicles
used solely on San Nicholas or San
Clemente Islands. Extensions in
compliance deadlines are also provided
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for in subsection (p) for emission
control device manufacturer delays or
unavailability of highest level VDECS.
Subsection (r) includes detailed
reporting requirements. Generally, the
reporting requirements apply to owners
who have elected to use the compliance
options or credits provided for in the
regulation or who rely on the special
provisions in the regulation, such as
those for agricultural provisions, street
sweeper provisions, NOX exempt areas,
and low-mileage construction trucks.
Subsection (s) sets forth the record
keeping requirements of the regulation,
subsection (t) requires vehicle owners to
make records available to CARB, and
subsection (u) establishes record
retention requirements.
Subsections (v) through (z) include
provisions that support compliance and
enforcement of the regulation by, for
example, establishing a right of entry for
CARB agents [subsection (v)] and by
requiring sellers to provide a specific
disclosure concerning the regulation to
buyers [subsection (w)]. Subsection (z)
establishes the penalties for noncompliance. Under this subsection, any
person who fails to comply with the
Truck and Bus Regulation may be
subject to civil or criminal penalties
under the California Health and Safety
Code sections 39674, 39675, 42400,
42400.1, 42400.2, 42402.2, and 43016.
Drayage Truck Regulation
CARB’s Drayage Truck Regulation (13
CCR section 2027) applies to owners
and operators of certain in-use, on-road,
diesel-fueled, heavy-duty drayage
vehicles with a GVWR greater than
26,000 pounds defined as ‘‘drayage
trucks.’’ Drayage trucks are those that
are used for transporting cargo, such as
containerized, bulk, or break-bulk goods
and that operate on or transgress
through port or intermodal rail yard
property for the purpose of loading,
unloading or transporting cargo,
including transporting empty containers
and chassis; or that operate off port or
intermodal railyard property
transporting cargo or empty containers
or chassis that originated from or is
destined to a port or intermodal rail
yard property. The regulation also
applies to owner and operators of motor
carriers that dispatch drayage trucks
that operate in California, marine or port
terminals, intermodal rail yards, and rail
yard and port authorities. Owners and
operators are subject to the Drayage
Truck Regulation through December 31,
2022. Starting January 1, 2023, drayage
trucks will be subject to the Truck and
Bus Regulation.
Section 2027(d) of the Drayage Truck
Regulation includes the requirements
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and compliance deadlines, grouped into
two phases. Phase 1 of the regulation
[section 2027(d)(1)] required that, by
December 31, 2009, all drayage trucks
with a GVWR greater than 33,000
pounds to be equipped with a 1994–
2003 MY engine certified standards to
California or federal emission standards
and a level 3 VDECS for PM emissions;
or, 2004 or newer MY engine certified
to California or federal emission
standards. Drayage trucks with GVWR
greater than 33,000 pounds but with
2004 or 2005 engines are allowed extra
time to be equipped with a level 3
VDECS (by January 1, 2012 for subject
vehicles with MY 2004 engines and by
January 1, 2013 for vehicles with MY
2005 engines). Under Phase 1, by
January 1, 2012, all drayage trucks with
a GVWR of 26,001 lbs to 33,000 pounds
must be equipped with a level 3 VDECS
for PM emissions. Phase 2 [section
2027(d)(2)] requires all drayage trucks to
be equipped with a 1994 or newer MY
engine that meets or exceeds 2007 MY
California or federal emissions
standards.
Drayage truck owners must register
with the CARB Drayage Truck Registry,
a database that contains information on
all trucks that conduct business at
California ports and intermodal rail
yards. See section 2027(e). Sections
2027(d)(3), (4), (5) and (6) include
additional requirements for drayage
truck owners, drayage truck operators,
motor carriers and marine or port
terminals and intermodal rail yards, to
ensure that the various parties
coordinate their activities to ensure
compliance with the emissions
standards and compliance deadlines in
Phases 1 and 2.
The Drayage Truck Regulation
provides for the same types of penalties
for non-compliance as described above
for the Truck and Bus Regulation.
Sections 2027(h) (‘‘Right of Entry’’) and
2027(i) (‘‘Enforcement’’) authorize and
support efforts by CARB and other
officials to ensure compliance with the
regulation. Section 2023(j) is a sunset
clause that provides that, starting
January 2, 2023, drayage truck would no
longer be subject to the provisions of the
Drayage Truck Regulation but rather
would be subject to the provisions of the
Truck and Bus Regulation in 13 CCR
section 2025.
OGV Clean Fuels Regulation
CARB’s OGV Clean Fuels Regulation
(13 CCR section 2299.2) requires the use
of low sulfur marine distillate fuels
(instead of heavy fuel oil) to reduce PM,
NOX, and SO2 emissions from the use of
auxiliary diesel and diesel-electric
engines, main propulsion engines, and
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auxiliary boilers on ocean-going vessels
(OGVs). The regulation applies to
owners and operators of OGVs that
operate in any of the Regulated
California Waters, which are defined in
the regulation to include, among other
areas, all waters within 24 miles of the
California baseline (except a specific
area off Point Conception. Unless
specifically exempted, the regulation
applies to both U.S.-flagged and foreignflagged OGVs. Exemptions in the
regulation include, among other vessels,
OGVs that pass through Regulated
California Waters but do not enter
California internal or estuarine waters or
call at a port, roadstead 5 or terminal
facility; OGVs owned or operated by any
governmental entity (unless used for
commercial purposes); and OGVs when
compliance with the regulation is
reasonably determined by the master of
the vessel to endanger the safety of the
vessel, its crew, its cargo or its
passengers because of severe weather
conditions, equipment failure, fuel
contamination or other extraordinary
reasons beyond the master’s reasonable
control. See 13 CCR 2299.2(c)(1), (3) and
(5).
Section 2299.2(e)(1) specifies
allowable fuels and fuel sulfur content
limits for auxiliary diesel engines, main
engines and auxiliary boilers that must
be met while the OGV is operating in
Regulated California Waters. In the first
phase, beginning July 1, 2009, auxiliary
diesel engines, main engines and
auxiliary boilers on subject OGVs must
use either marine gas oil (MGO), with a
maximum of 1.5 percent sulfur by
weight, or marine diesel oil (MDO), with
a maximum of 0.5 percent sulfur by
weight. The ‘‘Phase 1’’ sulfur content
limit for MGO would be reduced from
1.5% to 1.0% beginning on August 1,
2012. Phase 2, beginning January 1,
2014, requires use of either MGO with
a maximum of 0.1% sulfur by weight or
MDO with a maximum of 0.1% sulfur
by weight. As such, the OGV Clean
Fuels Regulation establishes more
stringent requirements than otherwise
required under Federal law, at least
until January 1, 2015.6
5 ‘‘Roadstead’’ means any facility that is used for
the loading, unloading, and anchoring of ships. See
13 CCR section 2299.2(d)(31).
6 In 2008, the International Maritime Organization
(IMO) adopted amendments to MARPOL Annex VI
(International Convention for the Prevention of Air
Pollution From Ships) to further reduce air
emissions from ships. Among other provisions, the
2008 amendments to MARPOL Annex VI allowed
for the creation of Emission Control Areas (ECA) by
member states allowing them to implement more
stringent requirements than otherwise provided for
in Annex VI upon approval by the IMO. In 2010,
the IMO approved a joint application by the U.S.
and Canada for the creation of an ECA, referred to
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Section 2299.2(e)(2) establishes
recordkeeping, reporting, and
monitoring requirements including the
requirement to retain and maintain
records that document vessel entry to
and departure from Regulated California
Waters, completion of any fuel
switching procedures used to comply
with the regulations, and types and
sulfur content of fuel used in each
auxiliary engine, main engine, and
auxiliary boiler operated in Regulated
California Waters. Under subsection (e)
(2), any person subject to the regulation
must provide CARB with access to the
OGV for the purpose of determining
compliance with the regulation.
Under section 2299.2(f), the OGV
Clean Fuels Regulation provides for the
same types of penalties for noncompliance as described above for the
Truck and Bus Regulation.
Section 2299.2(g) allows the EO to
exempt, in whole or in part, vessels
from compliance with the fuel and fuel
sulfur content requirements in
subsection (e) based on the need for
essential modifications. Essential
modifications refer to the addition of
new equipment, or the replacement of
existing components with modified
components, that can be demonstrated
to be necessary to comply with the
regulation. See 13 CCR 2299.2(d)(10).
Eligibility for relief under subsection (g)
is generally cleared in advance by CARB
through approval of an Essential
Modification Report that demonstrates
the need for essential modification and
that is submitted by the vessel owner or
operator to CARB 45 days prior to entry
into Regulated California Waters.
Section 2299.2(h) allows CARB, under
certain circumstances, to permit an
owner or operator of an OGV to pay
noncompliance fees in lieu of meeting
the fuel and fuel sulfur content
requirements in subsection (e) if specific
notification requirements are met under
subsection (h)(1). CARB may consider
noncompliance fees in lieu of
compliance for any owner or operator of
an OGV that demonstrates that
noncompliance is beyond the person’s
reasonable control under circumstances
where the OGV was, while en route
as the North American ECA. Under the North
American ECA, OGVs traveling within a 200
nautical mile zone of the North American coastline
are required to use fuels with no more than 1%
sulfur beginning in August 2012 and no more than
0.1% sulfur beginning in January 2015. EPA is
implementing the provisions of MARPOL Annex VI
through its ocean-going vessel rule (75 FR 22895).
Under these regulations, both U.S.- and foreignflagged ships subject to the engine and fuel
standards of MARPOL Annex VI must comply with
the applicable Annex VI provisions when they enter
U.S. ports or operate in most internal U.S. waters
including the Great Lakes, excluding steamships.
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from its last port of call, redirected to a
California port, where the supply of
complying fuel is inadequate, or where
the person made an inadvertent
purchase of defective fuel. In-lieu fees
may also be assessed for noncompliance
by OGVs to be taken out of service for
modifications or based on infrequent
visits and need for vessel modifications.
Applicable noncompliance (in-lieu) fees
are shown below in Table 4.
limitations and other control measures,
means, or techniques, as well as
schedules and timetables for
compliance, as may be necessary to
meet the requirements of the Act [see
CAA section 110(a)(2)(A)]; must provide
necessary assurances that the State will
have adequate personnel, funding, and
authority under State law to carry out
such SIP (and is not prohibited by any
provision of Federal to State law from
carrying out such SIP) [see CAA section
TABLE 4—NONCOMPLIANCE FEE
110(a)(2)(E)]; must be adopted by a State
SCHEDULE UNDER THE OGC CLEAN after reasonable notice and public
hearing [see CAA section 110(l)], and
FUELS REGULATION, PER VESSEL
must not interfere with any applicable
requirement concerning attainment and
Per-port
Port visit
visit fee
reasonable further progress, or any other
applicable requirement of the Act [see
1st Port Visited .........................
$45,500
CAA section 110(l)].7
2nd Port Visited ........................
3rd Port Visited .........................
4th Port Visited .........................
5th or more Port Visited ...........
45,500
91,000
136,500
182,000
Under subsection (h), CARB assesses
the fees at the time of the port visit, and
the fees must be paid prior to leaving
the California port or by a later date
approved by CARB. Section
2299.2(h)(5)(D) allows CARB to enter
into enforceable agreements with each
port that will receive the fees. Fees must
be used by the ports only to fund
projects reducing PM, NOX, and SO2
within two miles of port boundaries, or
OGVs operated in Regulated California
Waters.
Section 2299.2(i) establishes the test
methods that must be used to determine
compliance with 13 CCR section 2299.2.
Subsection (i) allows the CARB EO to
approve alternative test methods if they
are demonstrated to be equally or more
accurate than the listed methods.
Lastly, under section 2299.2(j), the
requirements of OGV Clean Fuels
Regulation will cease to apply if and
when the CARB EO issues written
findings that Federal requirements are
in place that will achieve equivalent
emissions reductions within the
Regulated California Waters and are
being enforced within the Regulated
California Waters.
II. EPA’s Evaluation and Proposed
Action
A. How is EPA evaluating the
regulations?
EPA has evaluated the three
regulations described in the previous
section of this document against the
applicable procedural and substantive
requirements of the Clean Air Act for
SIPs and SIP revisions and has
concluded that they meet all of the
applicable requirements. Generally, SIPs
must include enforceable emission
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B. CARB Regulations Meeting CAA SIP
Evaluation Criteria
1. Did the State provide aadequate
public notice and comment periods?
Under CAA section 110(l), SIP
revisions must be adopted by the State,
and the State must provide for
reasonable public notice and hearing
prior to adoption. In 40 CFR 51.102(d),
we specify that reasonable public notice
in this context refers to at least 30 days.
As described previously, the three
subject regulations were submitted to
EPA by California with requests to
‘‘parallel process’’ them pending final
adoption (of the most recent
amendments) by CARB. We recognize
the extensive public process that CARB
conducted prior to the adoption of the
original versions of the three regulations
and the extensive public process that
CARB conducted for the recent
amendments and modifications and
expect to determine that CARB will
have met the applicable procedural
requirements for SIP revisions upon
submittal by CARB of the final adopted
regulations as a SIP revision with the
necessary public process
documentation.8
7 CAA section 193, which prohibits any pre-1990
SIP control requirement relating to nonattainment
pollutants in nonattainment areas from being
modified unless the SIP is revised to insure
equivalent or greater emission reductions of such
air pollutants, does not apply to these regulations
because they do not represent pre-1990 SIP control
requirements.
8 For example, all three regulations were
originally developed through a series of public
workshops and adopted following 45-day public
comment periods. The significant amendments to
the Truck and Bus Regulation and the Drayage
Truck Regulation proposed in October 2010
followed a similar process as have the 2011
amendments to the OGV Clean Fuels Regulation.
The modifications to the 2010 amendments
proposed in 2011 for the Truck and Bus Regulation
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2. Does the State have adequate legal
authority to implement the regulations?
CARB has been granted both general
and specific authority under the
California Health and Safety Code
(H&SC) to adopt and implement these
regulations. California H&SC sections
39600 (‘‘Acts required’’) and 39601
(‘‘Adoption of regulation; Conformance
to federal law’’) confer on CARB the
general authority and obligation to
adopt regulations and measures
necessary to execute CARB’s powers
and duties imposed by State law.
California H&SC sections 43013(a) and
43018 provide broad authority to
achieve the maximum feasible and costeffective emission reductions from all
mobile source categories, including both
on-road and off-road diesel engines.
Regarding in-use motor vehicles,
California H&SC sections 43600 and
43701(b), respectively, grant CARB
authority to adopt emission standards
and emission control equipment
requirements. Further, California H&SC
section 39666 gives CARB authority to
adopt airborne toxic control measures to
reduce emissions of toxic air
contaminants from new and in-use
nonvehicular sources, including marine
vessels.
Moreover, we know of no obstacle
under Federal or State law in CARB’s
ability to implement the regulations. As
a general matter, the CAA assigns
mobile source regulation to EPA
through title II of the Act and assigns
stationary source regulation and SIP
development responsibilities to the
States through title I of the Act. In so
doing, the CAA preempts various types
of State regulation of mobile sources as
set forth in section 209(a) (preemption
of State emissions standards for new
motor vehicles and engines), section
209(e) (preemption of State emissions
standards for nonroad vehicles and
engines) and section 211(c)(4)(A)
[preemption of State fuel requirements
for motor vehicles, i.e., other than
California’s motor vehicle fuel
requirements—see section 211(c)(4)(B)].
For certain types of mobile source
standards, the State of California may
request a waiver or authorization for
state emissions standards. See CAA
sections 209(b) (new motor vehicles)
and 209(e)(2) (most categories of new
and non-new nonroad vehicles).
Notwithstanding the preemption
provisions of the CAA, however, we do
not believe that preemption represents
an obstacle to implementation by
California with respect to these three
particular regulations. First, the Truck
and Drayage Truck Regulation were subject to a
supplemental 15-day public comment period.
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and Bus Regulation and Drayage Truck
Regulation establish emissions
standards for in-use trucks and buses.
Because the requirements do not apply
to new motor vehicles or engines and
because the burden for retrofits or
replacements does not fall on original
equipment manufacturers, we believe
that the preemption under CAA section
209(a) does not apply and California
need not secure a waiver to enforce the
Truck and Bus Regulation or the
Drayage Truck Regulation. See Allway
Taxi Inc. v. City of New York, 340 F.
Supp. 1120 (S.D.N.Y) (interpreting CAA
section 209(a) motor vehicle
preemption), aff’d, 468 F.2d 624 (2d Cir.
1972).
To the extent that the Truck and Bus
Regulation affects nonroad vehicles or
engines, we take note of CARB’s
authorization request under CAA
section 209(e)(2) for CARB’s emissions
standards for in-use off-road dieselfueled equipment with engines 25
horsepower and greater and EPA’s
related notice of opportunity for public
hearing and comment concerning
CARB’s request. See 75 FR 11880
(March 12, 2010) for the most recent
related EPA announcement concerning
CARB’s authorization request for the
relevant in-use nonroad emissions
standards. Assuming that EPA issues
the relevant authorization requested by
CARB, there will be no obstacle to
CARB’s enforcement of the provisions of
the Truck and Bus Regulation that apply
to nonroad vehicles and engines.
With respect to the OGV Clean Fuels
Regulation, we first note that Stateadopted fuel requirements for nonroad
vehicles are generally not preempted
under the CAA. However, there are
provisions of Federal law, other than the
CAA, that might be relied upon to
challenge State fuel requirements as
preempted. In this instance, we
recognize that the Ninth Circuit Court of
Appeals recently issued an opinion in
which the court upheld CARB’s OGV
Clean Fuels Regulation against a
challenge grounded in preemption
principles. See Pacific Merchant
Shipping Ass’n. v. Goldstene, No. 09–
17765 (9th Cir. March 28, 2011). The
petitioners in the Pacific Merchant case
may yet appeal the decision to the U.S.
Supreme Court, but at this time, we
have no reason to believe that the case
will ultimately be resolved in a manner
that takes away CARB’s ability to
implement and enforce the OGV Clean
Fuels Regulation.
3. Are the regulations enforceable as
required under CAA section 110(a)(2)?
We have evaluated the enforceability
of the three subject proposed regulations
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with respect to applicability and
exemptions; standard of conduct and
compliance dates; sunset provisions;
discretionary provisions; and test
methods, recordkeeping and reporting,9
and have concluded for the reasons
given below that the proposed
regulations would be enforceable for the
purposes of CAA section 110(a)(2).
First, with respect to applicability, we
find the proposed regulations would be
sufficiently clear as to which persons
and which vehicles or engines are
affected by the regulations. For instance,
with respect to the Truck and Bus
Regulation, subsections (b) define the
scope and applicability of the regulation
in terms of, among other parameters,
type of fuel used and manufacturer’s
GVWR. Subsection (c) of the Truck and
Bus Regulation clearly identifies
categories of vehicles that are exempt
from the regulation, and subsection (d)
provides additional detail on the types
of owners and operators and vehicles
covered by the regulation by defining
key terms including ‘‘person’’ and
‘‘agricultural operations,’’ among others.
Similar types of provisions are also
found in the Drayage Truck Regulation
[see 13 CCR section 2027(b) and (c)] and
the OGV Clean Fuels Regulation [see 13
CCR sections 2299.2(b), (c), and (d)].
Second, we find that the proposed
regulations would be sufficiently
specific so that the persons affected by
the regulations would be fairly on notice
as to what the requirements and related
compliance dates are. To a large extent,
we have already described the
substantive requirements and
compliance dates set forth in the
proposed regulations in section I.D of
this document. We recognize that CARB
intends to extend certain compliance
dates in the latest amendments to the
original regulations but, as discussed in
section II.B.4 of this document, we find
that extending the compliance dates
would not interfere reasonable further
progress and attainment requirements
for California nonattainment areas with
respect to the 1997 PM2.5 and ozone
NAAQS. See section II.B.4 of this
document. No compliance date in any of
the regulations extends past January 1,
2023, which is consistent with the
attainment needs for California with
respect to the attainment deadline for
the South Coast and San Joaquin Valley
‘‘extreme’’ nonattainment areas for the
1997 ozone NAAQS.
9 These concepts are discussed in detail in an
EPA memorandum from J. Craig Potter, EPA
Assistant Administrator for Air and Radiation, et
al., titled ‘‘Review of State Implementation Plans
and Revisions for Enforceability and Legal
Sufficiency,’’ dated September 23, 1987.
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Third, both the Drayage Truck
Regulation and OGV Clean Fuels
Regulation contain sunset provisions. In
the case of the Drayage Truck
Regulation, the regulation would sunset
on December 31, 2022, but after that
date, the requirements of the Truck and
Bus Regulation would apply. See 13
CCR section 2027(j). Thus, regulation of
drayage trucks would continue
indefinitely under the terms of the
Truck and Bus Regulation. Under
subsection (j) of the OGV Clean Fuels
Regulation, once the CARB EO makes a
finding that federal requirements are in
place that will achieve equivalent
emissions reduction within California
Regulated Waters and that are being
enforced within California Regulated
Waters, the regulation would no longer
be in effect. The CARB EO is expected
to make the necessary finding under
subsection (j) sometime after January 1,
2015 when the 0.1% marine fuel sulfur
content limit (applicable within the
North American ECA) will become
enforceable by EPA and the U.S. Coast
Guard. Given that the 0.1% marine fuel
sulfur content limit will continue to be
federally enforceable after the CARB EO
invokes the sunset clause, we find the
sunset clause in the OGC Clean Fuels
Regulation to be acceptable.
Fourth, all three regulations would
contain provisions that allow for
discretion on the part of CARB’s EO.
Such ‘‘director’s discretion’’ provisions
can undermine enforceability of a SIP
regulation, and thus prevent full
approval by EPA, but in the instances of
‘‘director’s discretion’’ in the three
subject regulations, the discretion that
can be exercised by the CARB EO is
limited both in scope and application.
As such, we do not find that the
‘‘director’s discretion’’ provisions in the
proposed regulations would preclude
our approval of them for the purposes
of the SIP.
Lastly, each of the proposed
regulations identifies appropriate test
methods and includes adequate
recordkeeping and reporting
requirements sufficient to ensure
compliance with the applicable
requirements.
4. Do the regulations interfere with
reasonable further progress and
attainment or any other applicable
requirement of the Act?
The State’s 2007 State Strategy to
attain the 1997 PM2.5 and ozone NAAQS
relies on these three regulations to help
achieve needed emissions reductions in
various nonattainment areas in
California, particularly the South Coast
Air Basin and San Joaquin Valley. A
summary of the latest emissions
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reductions estimates from these rules in
the South Coast and San Joaquin Valley
1997 PM2.5 and ozone attainment plans
can be found in the State’s 2007 State
Strategy, the 2009 Status Report on the
State Strategy and the ‘‘Progress Report
on Implementation of PM2.5 State
Implementation Plans (SIP) for the
South Coast and San Joaquin Valley Air
Basins and Proposed SIP revisions,’’
dated March 29, 2011. In separate
rulemakings, EPA is evaluating the
approvability of the reasonable further
progress (RFP) and attainment
demonstrations (and other provisions)
for areas that rely on these three
regulations. In general, these rules
provide much needed NOX, direct PM
and SO2 reductions, however, the
attainment plans do not require specific
reductions from any particular rule.
Thus, EPA believes that the approval of
these three regulations, which have
never been approved into the SIP, does
not interfere with RFP, attainment or
any other applicable requirement of the
Act.
5. Will the State have adequate
personnel and funding for the
regulations?
Chapter XIII of CARB’s ‘‘Initial
Statement of Reasons for Proposed
Rulemaking, Proposed Amendments to
the Truck and Bus Regulation, the
Drayage Truck Regulation and the
Tractor-Trailer Greenhouse Gas
Regulation,’’ dated October 2010,
addresses implementation and
enforcement of the regulations. As
described therein, CARB intends to
conduct enforcement of the Truck and
Bus Regulation and Drayage Truck
Regulation similarly to enforcement of
CARB’s commercial vehicle and school
bus idling regulations. CARB’s
enforcement staff intends to use the
inspection and audit methods that they
have developed during the many years
of experience enforcing the Heavy-Duty
Vehicle Inspection Program (adopted
into law in 1988) and the Periodic
Smoke Inspection Program (adopted
into law in 1990).
CARB indicates that enforcement
activities will include inspections at
border crossings, California Highway
Patrol (CHP) weigh stations, fleet
facilities, and randomly selected
roadside locations and audits of records.
See appendix H to CARB’s initial
statement of reasons for proposed
rulemaking, dated October 2010, cited
above. These activities could result in
corrective actions and substantial civil
penalties for non-compliance with the
regulations. CARB’s enforcement
activities are summarized in annual
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reports. See, e.g., CARB’s 2009 Annual
Enforcement Report (August 2010).
We recognize the general effectiveness
of CARB’s motor vehicle enforcement
program and expect CARB’s approach to
enforcement of the Truck and Bus and
Drayage Truck regulations, as described
above, to be equally effective; however,
none of the information we have
received or were able to download from
CARB’s Web site has identified the
specific additional resources and
personnel that CARB has allocated to
the Truck and Bus Regulation. We
expect such information to be submitted
to EPA as part of the SIP submittal
package contained the final adopted
versions of the regulations.
Since the original OGV Clean Fuels
Regulation became effective, CARB
enforcement staff has conducted over
450 vessel inspections and the
compliance rate, as determined by
CARB enforcement staff, is
approximately 95%. See page ES–2 of
CARB’s Initial Statement of Reasons for
Proposed Rulemaking, Proposed
Amendments to the Regulations ‘‘Fuel
Sulfur and Other Operational
Requirements for Ocean-Going Vessels
within California Waters and 24
Nautical Miles of the California
Baseline,’’ dated May 2011. Based on
CARB’s enforcement activities since the
effective date of the original OGV Clean
Fuels Regulation, we believe that CARB
has allocated adequate funding and
personnel for the regulation.
6. EPA’s Regulation Evaluation
Conclusion
Based on the above discussion, we
believe these regulations are consistent
with the relevant CAA requirements,
policies and guidance.
C. Proposed Action, Public Comment
and Final Action
For the reasons given above, we
believe CARB’s Truck and Bus
Regulation, Drayage Truck Regulation,
and OGV Clean Fuels Regulation fulfill
all relevant requirements, and thus, EPA
is proposing to approve these
regulations under section 110(k)(3) of
the CAA once we receive the final
adopted versions as a revision to the
California SIP. If the State substantially
revises these submitted regulations from
the versions proposed by the State and
submitted for ‘‘parallel processing,’’ this
will result in the need for additional
proposed rulemaking on these
regulations.
We will accept comments from the
public on this proposal for the next 30
days. Unless we receive convincing new
information during the comment period,
we intend to publish a final approval
E:\FR\FM\11JYP1.SGM
11JYP1
40660
Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Proposed Rules
erowe on DSK5CLS3C1PROD with PROPOSALS-1
action that will incorporate these
regulations into the federally
enforceable SIP.
III. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this proposed action
merely approves State law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by State law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address
disproportionate human health or
environmental effects with practical,
appropriate, and legally permissible
methods under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
VerDate Mar<15>2010
15:12 Jul 08, 2011
Jkt 223001
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
dioxide.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 29, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011–17232 Filed 7–8–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2011–0547; FRL–9435–2]
Revisions to the California State
Implementation Plan, San Joaquin
Valley Air Pollution Control District
(SJVUAPCD)
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
revisions to the San Joaquin Valley Air
Pollution Control District (SJVUAPCD)
portion of the California State
Implementation Plan (SIP). These
revisions concern volatile organic
compound (VOC) and oxides of nitrogen
(NOX), and particulate matter (PM)
emissions from open burning. We are
approving a local rule that regulates
these emission sources under the Clean
Air Act as amended in 1990 (CAA or the
Act). We are taking comments on this
proposal and plan to follow with a final
action.
DATES: Any comments must arrive by
August 10, 2011.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2011–0547, by one of the
following methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
SUMMARY:
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
online at www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
www.regulations.gov or e-mail.
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
included as part of the public comment.
If EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, EPA may
not be able to consider your comment.
Docket: Generally, documents in the
docket for this action are available
electronically at www.regulations.gov
and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco,
California. While all documents in the
docket are listed at
www.regulations.gov, some information
may be publicly available only at the
hard copy location (e.g., copyrighted
material, large maps), and some may not
be publicly available in either location
(e.g., CBI). To inspect the hard copy
materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Joanne Wells, EPA Region IX, (415)
947–4118, wells.joanne@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. The State’s Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted
rule and rule revisions?
II. EPA’s Evaluation and Action
A. How is EPA evaluating the rule?
B. Does the rule meet the evaluation
criteria?
C. EPA Recommendations To Further
Improve the Rule
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What rule did the State submit?
Table 1 lists the rule and portion of
District Staff Report addressed by this
proposal with the dates that they were
adopted by the local air agency and
submitted by the California Air
Resources Board (CARB).
E:\FR\FM\11JYP1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 132 (Monday, July 11, 2011)]
[Proposed Rules]
[Pages 40652-40660]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17232]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2011-0544; FRL-9434-9]
Approval and Promulgation of Implementation Plans; California Air
Resources Board--In-Use Heavy-Duty Diesel-Fueled Truck and Bus
Regulation, Drayage Truck Regulation and Ocean-Going Vessels Clean
Fuels Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the California State
Implementation Plan (SIP) that EPA expects to be submitted by the
California Air Resources Board (CARB or Board). These revisions concern
three regulations that reduce emissions of diesel particulate matter
(PM), oxides of nitrogen (NOX), sulfur dioxide
(SO2) and other pollutants from in-use, heavy-duty diesel-
fueled trucks and buses and from ocean-going vessels (OGV) operating
within California jurisdiction. This proposed approval is based on
proposed regulations submitted by CARB and an accompanying request to
proceed with SIP review while the State completes its public review and
agency adoption process. EPA will not take final action on the
regulations until California submits the final adopted versions to EPA
as a revision to the California SIP. Final EPA approval of the
regulations and incorporation of them into the California SIP would
make them federally enforceable. We are providing a 30-day comment
period for today's proposal.
DATES: Any comments must arrive by August 10, 2011.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2011-0544, by one of the following methods:
1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
2. E-mail: R9truck--dray--OGVcomments
3. Mail or deliver: Roxanne Johnson (Air U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or e-mail.
www.regulations.gov is an ``anonymous access'' system, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, EPA Region IX, (415)
947-4150, johnson.roxanne@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. The State's Submittal
A. What regulations did the State submit?
B. Are there other versions of these regulations?
C. What is the purpose of the submitted regulations?
D. What requirements do the regulations establish?
II. EPA's Evaluation and Proposed Action
A. How is EPA evaluating the regulations?
B. CARB Regulations Meeting CAA SIP Evaluation Criteria
1. Did the State provide adequate public notification and
comment periods?
2. Does the State have adequate legal authority to implement the
regulations?
3. Are the regulations enforceable as required under CAA section
110(a)(2)?
[[Page 40653]]
4. Do the regulations interfere with reasonable further progress
and attainment or any other applicable requirement of the Act?
5. Will the State have adequate personnel and funding for the
regulations?
6. EPA's Regulation Evaluation Conclusion
C. Proposed Action, Public Comment and Final Action
III. Statutory and Executive Order Reviews
I. The State's Submittal
A. What regulations did the State submit?
By letters dated May 11 and May 19, 2011, CARB submitted to EPA
three proposed regulations, with requests for parallel
processing.1, 2 See May 11, and May 19, 2011 letters to
Jared Blumenfeld, Regional Administrator, EPA Region 9, from James N.
Goldstene, Executive Officer, CARB.
---------------------------------------------------------------------------
\1\ Under EPA's ``parallel processing'' procedure, EPA proposes
rulemaking action concurrently with the State's proposed rulemaking.
If the State's proposed rule is changed, EPA will evaluate that
subsequent change and may publish another notice of proposed
rulemaking. If no significant change is made, EPA will publish a
final rulemaking on the rule after responding to any submitted
comments. Final rulemaking action by EPA will occur only after the
rule has been fully adopted by California and submitted formally to
EPA for incorporation into the SIP. See 40 CFR part 51, appendix V.
\2\ Technically, the versions of the regulations submitted to
EPA by CARB for parallel processing, and evaluated herein, represent
proposed modifications and amendments to regulations previously
adopted by CARB, but because the previously-adopted regulations were
not submitted for incorporation into the SIP, i.e., the regulations
would be new to the SIP, we refer to them as ``proposed
regulations'' rather than ``proposed amendments'' or ``proposed
modifications'' in this document. To be clear, the versions of the
truck, bus, and drayage truck regulations that we have evaluated
herein are the versions released for public comment on May 19, 2011,
and the version of the ocean-going vessel regulation that we have
evaluated herein is the version released for public comment on April
26, 2011.
\3\ In addition to the proposed version of 13 CCR section
2299.2, CARB also submitted the proposed version of 17 CCR section
93118.2. The two regulations are fundamentally identical and reflect
the authorities granted to CARB in the California Health and Safety
Code to regulate marine vessel emissions (section 2299.2, title 13,
CCR) and to regulate sources of toxic air contaminants (section
93118.2, title 17, CCR). We see no need for both regulations to be
approved into the SIP and propose to approve only the title 13
regulation into the California SIP.
---------------------------------------------------------------------------
Table 1 below, lists the regulations addressed by this proposal.
These regulations include: (1) Regulation to Reduce Emissions of Diesel
Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants,
from In-Use Heavy-Duty Diesel-Fueled Vehicles (``Truck and Bus
Regulation''); (2) In-Use On-road Diesel-Fueled Heavy-Duty Drayage
Trucks (``Drayage Truck Regulation''); and (3) Fuel Sulfur and Other
Operational Requirements for Ocean-Going Vessels within California
Waters and 24 Nautical Miles of the California Baseline (``OGV Clean
Fuels Regulation'').
Table 1--Regulations Submitted by California for Parallel Processing
------------------------------------------------------------------------
California Code of Regulations
(CCR), title 13, section No. Regulation title
------------------------------------------------------------------------
Section 2025...................... Regulation to Reduce Emissions of
Diesel Particulate Matter, Oxides
of Nitrogen and Other Criteria
Pollutants, from In-Use Heavy-Duty
Diesel-Fueled Vehicles.
Section 2027...................... In-Use On-road Diesel-Fueled Heavy-
Duty Drayage Trucks.
Section 2299.2 \3\................ Fuel Sulfur and Other Operational
Requirements for Ocean-Going
Vessels within California Waters
and 24 Nautical Miles of the
California Baseline.
------------------------------------------------------------------------
CARB's May 11, 2011 parallel processing request includes the CARB
notice of public hearing, held on June 23, 2011 and the CARB Staff
Report, ``Initial Statement of Reasons for Proposed Rulemaking:
Proposed Amendments to the Regulations `Fuel Sulfur and Other
Operational Requirements for Ocean-Going Vessels within California
Waters and 24 Nautical Miles of the California Baseline,' '' May 2011.
The proposed OGV Clean Fuels Regulation was submitted as appendix A to
the CARB Staff Report, but since the version in appendix A only
includes the subsections of the regulation that are proposed for
amendment, and not the unchanged subsections, we have also reviewed the
original regulation approved in 2008 together with the proposed
amendments.
CARB's May 19, 2011 parallel processing request includes CARB's
notice of public availability of the proposed Truck and Bus Regulation
and proposed Drayage Truck Regulation and the initiation of a 15-day
comment period. CARB's 15-day notice refers to two attachments, one of
which shows the most recent modifications to the Truck and Bus
Regulation and the second of which shows the most recent modifications
to the Drayage Truck Regulation. Herein, we refer to these versions of
the regulations as ``proposed regulations.'' The versions of the
regulations referred to in the 15-day notice as ``attachment 1'' and
``attachment 2'' are the versions of the regulations that we have
evaluated herein. CARB's May 19, 2011 request also includes: Two
resolutions dated December 17, 2010 through which CARB approved
amendments [to the Truck and Bus Regulation and Drayage Truck
Regulation] for adoption by the CARB Executive Officer (EO) once he
makes further modifications to the regulations consistent with the
resolutions, and the CARB staff report, ``Initial Statement of Reasons
for Proposed Rulemaking: Proposed Amendments to the Truck and Bus
Regulations, the Drayage Truck Regulation, the Tractor-Trailer
Greenhouse Gas Regulation,'' October 2010.
EPA is granting CARB's request that EPA ``parallel process'' our
review and propose action on the three regulations. All of the relevant
documents are available for review in the docket for today's proposed
rulemaking.
B. Are there other versions of these regulations?
The Truck and Bus Regulation was initially approved by CARB in
December 2008 and became effective (for State law purposes) in January
2010. In December 2010, CARB adopted Resolution 10-44 after considering
amendments to the Truck and Bus Regulation as initially proposed by
CARB staff and covered by the Notice of Public Hearing (``45-day Public
Notice'') and Staff Report, which were initially published on October
19, 2010, and staff's suggested modifications to the proposed
amendments, which were made in response to comments received before the
CARB public hearing regarding staff's initial proposal. CARB directed
staff to modify the initially proposed amendments consistent with the
suggested modifications and CARB's findings as set forth in the
resolution. Resolution 10-44 further directed the CARB EO to make the
modifications to
[[Page 40654]]
the initially proposed amendments to the Truck and Bus Regulation
available for public comment for a period of 15 days, and to take final
action to adopt the proposed amendments, as modified in the publicly
noticed 15-day changes, or return to the CARB Board for further
consideration. The version of the regulation that is subject to CARB's
15-day notice is the one we evaluate herein for eventual approval into
the California SIP. CARB's 15-day public comment period ended June 3,
2011.
The Drayage Truck Regulation was initially approved by CARB in
December 2007 and became effective (for State law purposes) in December
2008. In December 2010, CARB adopted Resolution 10-45 after considering
amendments to the Drayage Truck Regulation initially proposed by CARB
staff and covered by the 45-Day Public Notice and Staff Report, and
directed that the proposed amendments be modified consistent with the
CARB Board's findings therein and following the process outlined above
for final adoption of amendments to the Truck and Bus Regulation. The
version of the regulation that is subject to CARB's 15-day notice,
which covers both the Truck and Bus Regulation and the Drayage Truck
Regulation, is the one we evaluate herein for eventual approval into
the California SIP.
The OGV Clean Fuels Regulation was initially approved by CARB in
July 2008 and became effective (for State law purposes) in July 2009.
On May 4, 2011, CARB published a 45-day notice opening a public comment
period and making available proposed amendments to the regulation. A
public hearing for the CARB Board to consider adoption of the
amendments was held on June 23, 2011. Following the public hearing on
June 23, 2011, the CARB Board adopted a resolution that directs the
CARB Executive Officer to take final action to adopt the amendments
that were the subject of the 45-day notice in a manner consistent with
the requirements of the California Environmental Quality Act, and to
further modify the OGV Clean Fuels Regulation to reduce the ``Phase 1''
sulfur content limit for marine gas oil from 1.5% to 1.0% beginning on
August 1, 2012, subject to an additional 15-day notice to allow for
public comment on the further modifications. The original regulation,
along with the proposed amendments that was the subject of CARB's 45-
day notice, is the version we evaluate herein for eventual approval
into the California SIP. For evaluative purposes herein, we also
recognize the CARB Board's action on June 23, 2011 to direct the CARB
Executive Officer to modify the regulation to reduce the ``Phase 1''
sulfur content limit for marine gas oil from 1.5% to 1.0% beginning on
August 1, 2012, as set forth in attachment B to CARB's proposed
Resolution 11-25 dated June 23, 2011.
As described above, there are previous versions of the three
regulations, but none of the previous versions were submitted to EPA
for incorporation into the SIP. For a more detailed discussion of
CARB's adoption process for these regulations and a discussion of the
previous versions of these regulations adopted by the State but not
submitted to EPA, please see the documentation submitted by CARB,
included in the docket for today's rulemaking.
C. What is the purpose of the submitted regulations?
The purpose of the three regulations is to reduce NOX,
SO2 and PM emissions from in-use heavy-duty diesel-fueled
trucks and buses, drayage trucks, ocean-going vessels (OGV), and to
meet CAA requirements. NOX is a precursor responsible for
the formation of ozone, and NOX and SO2 are
precursors for fine particulate matter (PM2.5).\4\ At
elevated levels, ozone and PM2.5 harm human health and the
environment by contributing to premature mortality, aggravation of
respiratory and cardiovascular disease, decreased lung function,
visibility impairment, and damage to vegetation and ecosystems.
---------------------------------------------------------------------------
\4\ SO2 belongs to a family of compounds referred to
as sulfur oxide (SOX). PM2.5 precursors
include SO2, NOX, volatile organic compounds,
and ammonia. See 40 CFR 51.1000. CARB generally uses the term,
sulfur oxides (SOX); herein, we use SO2 to
refer to the same pollutant type.
---------------------------------------------------------------------------
California has a number of nonattainment areas for the National
Ambient Air Quality Standards (NAAQS) for ozone and PM2.5,
and the CAA requires states to submit SIP revisions that ensure
reasonable further progress and that demonstrate attainment of the
NAAQS within such areas. See, generally, part D of title I of the CAA.
Reductions from these regulations play a critical role in assuring that
areas such as the South Coast Air Basin and the San Joaquin Valley Air
Basin meet the NAAQS for ozone and PM2.5.
D. What requirements do the regulations establish?
Truck and Bus Regulation
CARB's Truck and Bus Regulation (i.e., 13 CCR section 2025)
requires fleet (defined as one or more vehicles) owners to upgrade
their vehicles to meet specific performance standards for
NOX and PM. The regulation applies to diesel-fueled trucks
and buses that are privately owned, federally owned, and to publicly
and privately owned school buses, that have a manufacturer's gross
vehicle weight rating (GVWR) greater than 14,000 pounds (lbs). (Local
and state government owned diesel-fueled trucks are already subject to
other CARB regulations.) Nearly all of the vehicles affected by the
regulation are on-road vehicles, but the regulation also applies to
yard trucks with off-road engines used for agricultural operations and
two-engine street sweepers with such engines. The regulation exempts
certain categories of trucks and buses, many of which, such as drayage
trucks, are subject to different CARB regulations.
Key concepts used in the Truck and Bus Regulation include ``2010
Model Year Emissions Equivalent Engine,'' ``PM BACT,'' and ``Verified
Diesel Emission Control Strategy'' (VDECS). As set forth in 13 CCR
section 2025(d)(3), ``2010 Model Year Emissions Equivalent Engine''
means emissions from: (A) An engine certified to the 2004 through 2006
model year (MY) heavy-duty diesel engine emissions standard that is
equipped with the highest level VDECS and that reduces NOX
emissions by at least 85%; (B) An engine that was built to the 2004
engine emission standard and was not used in any manufacturer's
averaging, banking, or trading program that is equipped with the
highest level VDECS and that reduces NOX exhaust emissions
by at least 85%; (C) An engine certified to the 2007 MY heavy-duty
diesel engine emissions standard that meets PM BACT and that reduces
NOx exhaust emissions by more than 70%; (D) An engine certified to the
2010 MY or newer heavy-duty certified to the 2010 MY or newer heavy-
duty diesel engine emissions standard that meets PM BACT; (E) A heavy-
duty engine certified to 0.2 grams per brake-horsepower-hour (g/bhp-hr)
or less NOX emissions level and 0.01 g/bhp-hr or less PM
emissions level; or (F) An off-road engine certified Tier 4 engine
emissions standard.
``PM BACT'' means the technology employed on the highest level
VDECS for PM or an engine that is equipped with an original equipment
manufacturer (OEM) diesel particulate filter and certified to meet the
0.01 g/bhp-hr certification standard. See 13 CCR section 2025(d)(48).
``Verified Diesel Emission Control Strategy'' (VDECS) means an emission
control strategy, designed primarily for the reduction of diesel PM
emissions, which has been verified pursuant to the Verification
Procedures. VDECS can be
[[Page 40655]]
verified to achieve Level 1 diesel PM reductions (25%), Level 2 diesel
PM reduction (50%), or Level 3 diesel PM reductions (85%). VDECS may
also be verified to achieve NOX reductions. See 13 CCR
section 2025(d) (60).
The basic requirements of the regulation are set forth in
subsections (e), (f), and (g). Under these subsections, different sets
of requirements are established for subject vehicles with a GVWR 26,000
lbs or less [subsection (f)] and subject vehicles with a GVWR greater
than 26,000 lbs [subsection (g)]. Under subsection (f), with certain
exceptions, subject vehicles with a GVWR 26,000 lbs or less must,
starting January 1, 2015, be equipped with a ``2010 model year
emissions equivalent engine'' pursuant to the schedule shown in table
2. School buses, that otherwise would be subject to subsection (f), are
subject to a different set of requirements in subsection (k). Under
subsection (k), with certain exceptions, all school buses must comply
with PM BACT by 2014.
Table 2--Compliance Schedule Under Section 2025(f) by Engine Model Year
for Lighter Heavy-Duty Trucks
------------------------------------------------------------------------
Compliance date
Existing engine model year as of January 1 Requirement
------------------------------------------------------------------------
1995 and older.................. 2015 2010 model year
emission
equivalent.
1996............................ 2016
1997............................ 2017
1998............................ 2018
1999............................ 2019
2003 and older.................. 2020
2004-2006....................... 2021
All engines..................... 2023
------------------------------------------------------------------------
Under subsection (g), with certain exceptions, subject vehicles
with a GVWR more than 26,000 lbs must, starting January 1, 2012, meet
the PM Best Available Control Technology (BACT) requirement and must
upgrade to a 2010 MY emissions equivalent engine pursuant to the
schedule shown in table 3. Fleets with vehicles otherwise subject to
subsection (g) may opt for a different phase-in compliance schedule for
PM BACT but must comply with section 2025(g) by 2023. See 13 CCR
section 2025, subsections (h) (``Small Fleet Compliance Option'') and
(i)(``Phase-in Option'').
Table 3--Compliance Schedule Under Section 2025(g) by Engine Model Year
for Heavier Heavy-Duty Trucks
------------------------------------------------------------------------
Compliance date Compliance date
Engine model year install PM filter 2010 engine by
by January 1 January 1
------------------------------------------------------------------------
1993 and older.................. No Requirement..... 2015
1994-1995....................... No Requirement..... 2016
1996-1999....................... 2012............... 2020
2000-2004....................... 2013............... 2021
2005-2006....................... 2014............... 2022
2007 or newer................... 2014 if not OEM 2023
equipped.
------------------------------------------------------------------------
Section 2025(j) allows credits for early PM retrofits, fleets that
have downsized, early addition of newer vehicles, hybrid vehicles,
alternative fueled vehicles and vehicles with heavy-duty pilot ignition
engines that can allow delayed requirements for other heavier trucks in
the fleet. Fleet owners are required to meet the reporting and record
keeping requirements of subsections (r) and (s). Credits are not
transferrable except with appropriate documentation of a change of
business form approved by the EO.
Subsection (l) provides requirements for drayage trucks and utility
vehicles. Drayage trucks subject to the Drayage Truck Regulation may be
included in the fleet to comply with the requirements of the Truck and
Bus Regulation only if all drayage trucks are included. Starting
January 1, 2023, all drayage truck owners must comply with the
requirements summarized above in tables 2 and 3. Drayage trucks may not
utilize any of the credits in subsection (j) or exemptions and
extensions in subsection (p). Starting January 1, 2021, all private
utility vehicle owners must comply with the requirements summarized
above in tables 2 and 3.
Subsection (m) provides exemptions for agricultural fleets that
meet the conditions of this subsection and remain below annual mileage
limits specified therein. Starting January 1, 2017, all agricultural
vehicles that have exceeded 10,000 miles in any calendar year since
January 1, 2011, must comply with the requirements summarized above in
tables 2 and 3. This subsection includes a provision, which allows the
CARB EO to exempt vehicles as specialty agricultural vehicles as long
as the vehicles meet the requirements of the subsection and the EO does
not exceed the caps for the number of such vehicles in the San Joaquin
Valley and Statewide. This section also provides an optional phase-in
for log trucks. Starting January 1, 2014, 10 percent of the total log
truck fleet must comply with 2010 MY emissions or equivalent, and by
January 1, 2023, 100 percent of the fleet must be 2010 MY emissions
equivalent.
Subsection (p) provides for exemptions, delays, and extensions. The
categories of vehicles that may qualify for relief under subsection (p)
include vehicles used exclusively in NOX exempt areas (which
include no counties within the South Coast Air Basin or San Joaquin
Valley), low-mileage construction trucks, unique vehicles, low-use
vehicles, vehicles operating with a three-day pass, vehicles awaiting
sale, and vehicles used solely on San Nicholas or San Clemente Islands.
Extensions in compliance deadlines are also provided
[[Page 40656]]
for in subsection (p) for emission control device manufacturer delays
or unavailability of highest level VDECS.
Subsection (r) includes detailed reporting requirements. Generally,
the reporting requirements apply to owners who have elected to use the
compliance options or credits provided for in the regulation or who
rely on the special provisions in the regulation, such as those for
agricultural provisions, street sweeper provisions, NOX
exempt areas, and low-mileage construction trucks. Subsection (s) sets
forth the record keeping requirements of the regulation, subsection (t)
requires vehicle owners to make records available to CARB, and
subsection (u) establishes record retention requirements.
Subsections (v) through (z) include provisions that support
compliance and enforcement of the regulation by, for example,
establishing a right of entry for CARB agents [subsection (v)] and by
requiring sellers to provide a specific disclosure concerning the
regulation to buyers [subsection (w)]. Subsection (z) establishes the
penalties for non-compliance. Under this subsection, any person who
fails to comply with the Truck and Bus Regulation may be subject to
civil or criminal penalties under the California Health and Safety Code
sections 39674, 39675, 42400, 42400.1, 42400.2, 42402.2, and 43016.
Drayage Truck Regulation
CARB's Drayage Truck Regulation (13 CCR section 2027) applies to
owners and operators of certain in-use, on-road, diesel-fueled, heavy-
duty drayage vehicles with a GVWR greater than 26,000 pounds defined as
``drayage trucks.'' Drayage trucks are those that are used for
transporting cargo, such as containerized, bulk, or break-bulk goods
and that operate on or transgress through port or intermodal rail yard
property for the purpose of loading, unloading or transporting cargo,
including transporting empty containers and chassis; or that operate
off port or intermodal railyard property transporting cargo or empty
containers or chassis that originated from or is destined to a port or
intermodal rail yard property. The regulation also applies to owner and
operators of motor carriers that dispatch drayage trucks that operate
in California, marine or port terminals, intermodal rail yards, and
rail yard and port authorities. Owners and operators are subject to the
Drayage Truck Regulation through December 31, 2022. Starting January 1,
2023, drayage trucks will be subject to the Truck and Bus Regulation.
Section 2027(d) of the Drayage Truck Regulation includes the
requirements and compliance deadlines, grouped into two phases. Phase 1
of the regulation [section 2027(d)(1)] required that, by December 31,
2009, all drayage trucks with a GVWR greater than 33,000 pounds to be
equipped with a 1994-2003 MY engine certified standards to California
or federal emission standards and a level 3 VDECS for PM emissions; or,
2004 or newer MY engine certified to California or federal emission
standards. Drayage trucks with GVWR greater than 33,000 pounds but with
2004 or 2005 engines are allowed extra time to be equipped with a level
3 VDECS (by January 1, 2012 for subject vehicles with MY 2004 engines
and by January 1, 2013 for vehicles with MY 2005 engines). Under Phase
1, by January 1, 2012, all drayage trucks with a GVWR of 26,001 lbs to
33,000 pounds must be equipped with a level 3 VDECS for PM emissions.
Phase 2 [section 2027(d)(2)] requires all drayage trucks to be equipped
with a 1994 or newer MY engine that meets or exceeds 2007 MY California
or federal emissions standards.
Drayage truck owners must register with the CARB Drayage Truck
Registry, a database that contains information on all trucks that
conduct business at California ports and intermodal rail yards. See
section 2027(e). Sections 2027(d)(3), (4), (5) and (6) include
additional requirements for drayage truck owners, drayage truck
operators, motor carriers and marine or port terminals and intermodal
rail yards, to ensure that the various parties coordinate their
activities to ensure compliance with the emissions standards and
compliance deadlines in Phases 1 and 2.
The Drayage Truck Regulation provides for the same types of
penalties for non-compliance as described above for the Truck and Bus
Regulation. Sections 2027(h) (``Right of Entry'') and 2027(i)
(``Enforcement'') authorize and support efforts by CARB and other
officials to ensure compliance with the regulation. Section 2023(j) is
a sunset clause that provides that, starting January 2, 2023, drayage
truck would no longer be subject to the provisions of the Drayage Truck
Regulation but rather would be subject to the provisions of the Truck
and Bus Regulation in 13 CCR section 2025.
OGV Clean Fuels Regulation
CARB's OGV Clean Fuels Regulation (13 CCR section 2299.2) requires
the use of low sulfur marine distillate fuels (instead of heavy fuel
oil) to reduce PM, NOX, and SO2 emissions from
the use of auxiliary diesel and diesel-electric engines, main
propulsion engines, and auxiliary boilers on ocean-going vessels
(OGVs). The regulation applies to owners and operators of OGVs that
operate in any of the Regulated California Waters, which are defined in
the regulation to include, among other areas, all waters within 24
miles of the California baseline (except a specific area off Point
Conception. Unless specifically exempted, the regulation applies to
both U.S.-flagged and foreign-flagged OGVs. Exemptions in the
regulation include, among other vessels, OGVs that pass through
Regulated California Waters but do not enter California internal or
estuarine waters or call at a port, roadstead \5\ or terminal facility;
OGVs owned or operated by any governmental entity (unless used for
commercial purposes); and OGVs when compliance with the regulation is
reasonably determined by the master of the vessel to endanger the
safety of the vessel, its crew, its cargo or its passengers because of
severe weather conditions, equipment failure, fuel contamination or
other extraordinary reasons beyond the master's reasonable control. See
13 CCR 2299.2(c)(1), (3) and (5).
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\5\ ``Roadstead'' means any facility that is used for the
loading, unloading, and anchoring of ships. See 13 CCR section
2299.2(d)(31).
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Section 2299.2(e)(1) specifies allowable fuels and fuel sulfur
content limits for auxiliary diesel engines, main engines and auxiliary
boilers that must be met while the OGV is operating in Regulated
California Waters. In the first phase, beginning July 1, 2009,
auxiliary diesel engines, main engines and auxiliary boilers on subject
OGVs must use either marine gas oil (MGO), with a maximum of 1.5
percent sulfur by weight, or marine diesel oil (MDO), with a maximum of
0.5 percent sulfur by weight. The ``Phase 1'' sulfur content limit for
MGO would be reduced from 1.5% to 1.0% beginning on August 1, 2012.
Phase 2, beginning January 1, 2014, requires use of either MGO with a
maximum of 0.1% sulfur by weight or MDO with a maximum of 0.1% sulfur
by weight. As such, the OGV Clean Fuels Regulation establishes more
stringent requirements than otherwise required under Federal law, at
least until January 1, 2015.\6\
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\6\ In 2008, the International Maritime Organization (IMO)
adopted amendments to MARPOL Annex VI (International Convention for
the Prevention of Air Pollution From Ships) to further reduce air
emissions from ships. Among other provisions, the 2008 amendments to
MARPOL Annex VI allowed for the creation of Emission Control Areas
(ECA) by member states allowing them to implement more stringent
requirements than otherwise provided for in Annex VI upon approval
by the IMO. In 2010, the IMO approved a joint application by the
U.S. and Canada for the creation of an ECA, referred to as the North
American ECA. Under the North American ECA, OGVs traveling within a
200 nautical mile zone of the North American coastline are required
to use fuels with no more than 1% sulfur beginning in August 2012
and no more than 0.1% sulfur beginning in January 2015. EPA is
implementing the provisions of MARPOL Annex VI through its ocean-
going vessel rule (75 FR 22895). Under these regulations, both U.S.-
and foreign-flagged ships subject to the engine and fuel standards
of MARPOL Annex VI must comply with the applicable Annex VI
provisions when they enter U.S. ports or operate in most internal
U.S. waters including the Great Lakes, excluding steamships.
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[[Page 40657]]
Section 2299.2(e)(2) establishes recordkeeping, reporting, and
monitoring requirements including the requirement to retain and
maintain records that document vessel entry to and departure from
Regulated California Waters, completion of any fuel switching
procedures used to comply with the regulations, and types and sulfur
content of fuel used in each auxiliary engine, main engine, and
auxiliary boiler operated in Regulated California Waters. Under
subsection (e) (2), any person subject to the regulation must provide
CARB with access to the OGV for the purpose of determining compliance
with the regulation.
Under section 2299.2(f), the OGV Clean Fuels Regulation provides
for the same types of penalties for non-compliance as described above
for the Truck and Bus Regulation.
Section 2299.2(g) allows the EO to exempt, in whole or in part,
vessels from compliance with the fuel and fuel sulfur content
requirements in subsection (e) based on the need for essential
modifications. Essential modifications refer to the addition of new
equipment, or the replacement of existing components with modified
components, that can be demonstrated to be necessary to comply with the
regulation. See 13 CCR 2299.2(d)(10). Eligibility for relief under
subsection (g) is generally cleared in advance by CARB through approval
of an Essential Modification Report that demonstrates the need for
essential modification and that is submitted by the vessel owner or
operator to CARB 45 days prior to entry into Regulated California
Waters.
Section 2299.2(h) allows CARB, under certain circumstances, to
permit an owner or operator of an OGV to pay noncompliance fees in lieu
of meeting the fuel and fuel sulfur content requirements in subsection
(e) if specific notification requirements are met under subsection
(h)(1). CARB may consider noncompliance fees in lieu of compliance for
any owner or operator of an OGV that demonstrates that noncompliance is
beyond the person's reasonable control under circumstances where the
OGV was, while en route from its last port of call, redirected to a
California port, where the supply of complying fuel is inadequate, or
where the person made an inadvertent purchase of defective fuel. In-
lieu fees may also be assessed for noncompliance by OGVs to be taken
out of service for modifications or based on infrequent visits and need
for vessel modifications. Applicable noncompliance (in-lieu) fees are
shown below in Table 4.
Table 4--Noncompliance Fee Schedule Under the OGC Clean Fuels
Regulation, Per Vessel
------------------------------------------------------------------------
Per-port
Port visit visit fee
------------------------------------------------------------------------
1st Port Visited........................................... $45,500
2nd Port Visited........................................... 45,500
3rd Port Visited........................................... 91,000
4th Port Visited........................................... 136,500
5th or more Port Visited................................... 182,000
------------------------------------------------------------------------
Under subsection (h), CARB assesses the fees at the time of the
port visit, and the fees must be paid prior to leaving the California
port or by a later date approved by CARB. Section 2299.2(h)(5)(D)
allows CARB to enter into enforceable agreements with each port that
will receive the fees. Fees must be used by the ports only to fund
projects reducing PM, NOX, and SO2 within two
miles of port boundaries, or OGVs operated in Regulated California
Waters.
Section 2299.2(i) establishes the test methods that must be used to
determine compliance with 13 CCR section 2299.2. Subsection (i) allows
the CARB EO to approve alternative test methods if they are
demonstrated to be equally or more accurate than the listed methods.
Lastly, under section 2299.2(j), the requirements of OGV Clean
Fuels Regulation will cease to apply if and when the CARB EO issues
written findings that Federal requirements are in place that will
achieve equivalent emissions reductions within the Regulated California
Waters and are being enforced within the Regulated California Waters.
II. EPA's Evaluation and Proposed Action
A. How is EPA evaluating the regulations?
EPA has evaluated the three regulations described in the previous
section of this document against the applicable procedural and
substantive requirements of the Clean Air Act for SIPs and SIP
revisions and has concluded that they meet all of the applicable
requirements. Generally, SIPs must include enforceable emission
limitations and other control measures, means, or techniques, as well
as schedules and timetables for compliance, as may be necessary to meet
the requirements of the Act [see CAA section 110(a)(2)(A)]; must
provide necessary assurances that the State will have adequate
personnel, funding, and authority under State law to carry out such SIP
(and is not prohibited by any provision of Federal to State law from
carrying out such SIP) [see CAA section 110(a)(2)(E)]; must be adopted
by a State after reasonable notice and public hearing [see CAA section
110(l)], and must not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the Act [see CAA section 110(l)].\7\
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\7\ CAA section 193, which prohibits any pre-1990 SIP control
requirement relating to nonattainment pollutants in nonattainment
areas from being modified unless the SIP is revised to insure
equivalent or greater emission reductions of such air pollutants,
does not apply to these regulations because they do not represent
pre-1990 SIP control requirements.
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B. CARB Regulations Meeting CAA SIP Evaluation Criteria
1. Did the State provide aadequate public notice and comment periods?
Under CAA section 110(l), SIP revisions must be adopted by the
State, and the State must provide for reasonable public notice and
hearing prior to adoption. In 40 CFR 51.102(d), we specify that
reasonable public notice in this context refers to at least 30 days. As
described previously, the three subject regulations were submitted to
EPA by California with requests to ``parallel process'' them pending
final adoption (of the most recent amendments) by CARB. We recognize
the extensive public process that CARB conducted prior to the adoption
of the original versions of the three regulations and the extensive
public process that CARB conducted for the recent amendments and
modifications and expect to determine that CARB will have met the
applicable procedural requirements for SIP revisions upon submittal by
CARB of the final adopted regulations as a SIP revision with the
necessary public process documentation.\8\
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\8\ For example, all three regulations were originally developed
through a series of public workshops and adopted following 45-day
public comment periods. The significant amendments to the Truck and
Bus Regulation and the Drayage Truck Regulation proposed in October
2010 followed a similar process as have the 2011 amendments to the
OGV Clean Fuels Regulation. The modifications to the 2010 amendments
proposed in 2011 for the Truck and Bus Regulation and Drayage Truck
Regulation were subject to a supplemental 15-day public comment
period.
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[[Page 40658]]
2. Does the State have adequate legal authority to implement the
regulations?
CARB has been granted both general and specific authority under the
California Health and Safety Code (H&SC) to adopt and implement these
regulations. California H&SC sections 39600 (``Acts required'') and
39601 (``Adoption of regulation; Conformance to federal law'') confer
on CARB the general authority and obligation to adopt regulations and
measures necessary to execute CARB's powers and duties imposed by State
law. California H&SC sections 43013(a) and 43018 provide broad
authority to achieve the maximum feasible and cost-effective emission
reductions from all mobile source categories, including both on-road
and off-road diesel engines. Regarding in-use motor vehicles,
California H&SC sections 43600 and 43701(b), respectively, grant CARB
authority to adopt emission standards and emission control equipment
requirements. Further, California H&SC section 39666 gives CARB
authority to adopt airborne toxic control measures to reduce emissions
of toxic air contaminants from new and in-use nonvehicular sources,
including marine vessels.
Moreover, we know of no obstacle under Federal or State law in
CARB's ability to implement the regulations. As a general matter, the
CAA assigns mobile source regulation to EPA through title II of the Act
and assigns stationary source regulation and SIP development
responsibilities to the States through title I of the Act. In so doing,
the CAA preempts various types of State regulation of mobile sources as
set forth in section 209(a) (preemption of State emissions standards
for new motor vehicles and engines), section 209(e) (preemption of
State emissions standards for nonroad vehicles and engines) and section
211(c)(4)(A) [preemption of State fuel requirements for motor vehicles,
i.e., other than California's motor vehicle fuel requirements--see
section 211(c)(4)(B)]. For certain types of mobile source standards,
the State of California may request a waiver or authorization for state
emissions standards. See CAA sections 209(b) (new motor vehicles) and
209(e)(2) (most categories of new and non-new nonroad vehicles).
Notwithstanding the preemption provisions of the CAA, however, we
do not believe that preemption represents an obstacle to implementation
by California with respect to these three particular regulations.
First, the Truck and Bus Regulation and Drayage Truck Regulation
establish emissions standards for in-use trucks and buses. Because the
requirements do not apply to new motor vehicles or engines and because
the burden for retrofits or replacements does not fall on original
equipment manufacturers, we believe that the preemption under CAA
section 209(a) does not apply and California need not secure a waiver
to enforce the Truck and Bus Regulation or the Drayage Truck
Regulation. See Allway Taxi Inc. v. City of New York, 340 F. Supp. 1120
(S.D.N.Y) (interpreting CAA section 209(a) motor vehicle preemption),
aff'd, 468 F.2d 624 (2d Cir. 1972).
To the extent that the Truck and Bus Regulation affects nonroad
vehicles or engines, we take note of CARB's authorization request under
CAA section 209(e)(2) for CARB's emissions standards for in-use off-
road diesel-fueled equipment with engines 25 horsepower and greater and
EPA's related notice of opportunity for public hearing and comment
concerning CARB's request. See 75 FR 11880 (March 12, 2010) for the
most recent related EPA announcement concerning CARB's authorization
request for the relevant in-use nonroad emissions standards. Assuming
that EPA issues the relevant authorization requested by CARB, there
will be no obstacle to CARB's enforcement of the provisions of the
Truck and Bus Regulation that apply to nonroad vehicles and engines.
With respect to the OGV Clean Fuels Regulation, we first note that
State-adopted fuel requirements for nonroad vehicles are generally not
preempted under the CAA. However, there are provisions of Federal law,
other than the CAA, that might be relied upon to challenge State fuel
requirements as preempted. In this instance, we recognize that the
Ninth Circuit Court of Appeals recently issued an opinion in which the
court upheld CARB's OGV Clean Fuels Regulation against a challenge
grounded in preemption principles. See Pacific Merchant Shipping Ass'n.
v. Goldstene, No. 09-17765 (9th Cir. March 28, 2011). The petitioners
in the Pacific Merchant case may yet appeal the decision to the U.S.
Supreme Court, but at this time, we have no reason to believe that the
case will ultimately be resolved in a manner that takes away CARB's
ability to implement and enforce the OGV Clean Fuels Regulation.
3. Are the regulations enforceable as required under CAA section
110(a)(2)?
We have evaluated the enforceability of the three subject proposed
regulations with respect to applicability and exemptions; standard of
conduct and compliance dates; sunset provisions; discretionary
provisions; and test methods, recordkeeping and reporting,\9\ and have
concluded for the reasons given below that the proposed regulations
would be enforceable for the purposes of CAA section 110(a)(2).
---------------------------------------------------------------------------
\9\ These concepts are discussed in detail in an EPA memorandum
from J. Craig Potter, EPA Assistant Administrator for Air and
Radiation, et al., titled ``Review of State Implementation Plans and
Revisions for Enforceability and Legal Sufficiency,'' dated
September 23, 1987.
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First, with respect to applicability, we find the proposed
regulations would be sufficiently clear as to which persons and which
vehicles or engines are affected by the regulations. For instance, with
respect to the Truck and Bus Regulation, subsections (b) define the
scope and applicability of the regulation in terms of, among other
parameters, type of fuel used and manufacturer's GVWR. Subsection (c)
of the Truck and Bus Regulation clearly identifies categories of
vehicles that are exempt from the regulation, and subsection (d)
provides additional detail on the types of owners and operators and
vehicles covered by the regulation by defining key terms including
``person'' and ``agricultural operations,'' among others. Similar types
of provisions are also found in the Drayage Truck Regulation [see 13
CCR section 2027(b) and (c)] and the OGV Clean Fuels Regulation [see 13
CCR sections 2299.2(b), (c), and (d)].
Second, we find that the proposed regulations would be sufficiently
specific so that the persons affected by the regulations would be
fairly on notice as to what the requirements and related compliance
dates are. To a large extent, we have already described the substantive
requirements and compliance dates set forth in the proposed regulations
in section I.D of this document. We recognize that CARB intends to
extend certain compliance dates in the latest amendments to the
original regulations but, as discussed in section II.B.4 of this
document, we find that extending the compliance dates would not
interfere reasonable further progress and attainment requirements for
California nonattainment areas with respect to the 1997
PM2.5 and ozone NAAQS. See section II.B.4 of this document.
No compliance date in any of the regulations extends past January 1,
2023, which is consistent with the attainment needs for California with
respect to the attainment deadline for the South Coast and San Joaquin
Valley ``extreme'' nonattainment areas for the 1997 ozone NAAQS.
[[Page 40659]]
Third, both the Drayage Truck Regulation and OGV Clean Fuels
Regulation contain sunset provisions. In the case of the Drayage Truck
Regulation, the regulation would sunset on December 31, 2022, but after
that date, the requirements of the Truck and Bus Regulation would
apply. See 13 CCR section 2027(j). Thus, regulation of drayage trucks
would continue indefinitely under the terms of the Truck and Bus
Regulation. Under subsection (j) of the OGV Clean Fuels Regulation,
once the CARB EO makes a finding that federal requirements are in place
that will achieve equivalent emissions reduction within California
Regulated Waters and that are being enforced within California
Regulated Waters, the regulation would no longer be in effect. The CARB
EO is expected to make the necessary finding under subsection (j)
sometime after January 1, 2015 when the 0.1% marine fuel sulfur content
limit (applicable within the North American ECA) will become
enforceable by EPA and the U.S. Coast Guard. Given that the 0.1% marine
fuel sulfur content limit will continue to be federally enforceable
after the CARB EO invokes the sunset clause, we find the sunset clause
in the OGC Clean Fuels Regulation to be acceptable.
Fourth, all three regulations would contain provisions that allow
for discretion on the part of CARB's EO. Such ``director's discretion''
provisions can undermine enforceability of a SIP regulation, and thus
prevent full approval by EPA, but in the instances of ``director's
discretion'' in the three subject regulations, the discretion that can
be exercised by the CARB EO is limited both in scope and application.
As such, we do not find that the ``director's discretion'' provisions
in the proposed regulations would preclude our approval of them for the
purposes of the SIP.
Lastly, each of the proposed regulations identifies appropriate
test methods and includes adequate recordkeeping and reporting
requirements sufficient to ensure compliance with the applicable
requirements.
4. Do the regulations interfere with reasonable further progress and
attainment or any other applicable requirement of the Act?
The State's 2007 State Strategy to attain the 1997 PM2.5
and ozone NAAQS relies on these three regulations to help achieve
needed emissions reductions in various nonattainment areas in
California, particularly the South Coast Air Basin and San Joaquin
Valley. A summary of the latest emissions reductions estimates from
these rules in the South Coast and San Joaquin Valley 1997
PM2.5 and ozone attainment plans can be found in the State's
2007 State Strategy, the 2009 Status Report on the State Strategy and
the ``Progress Report on Implementation of PM2.5 State
Implementation Plans (SIP) for the South Coast and San Joaquin Valley
Air Basins and Proposed SIP revisions,'' dated March 29, 2011. In
separate rulemakings, EPA is evaluating the approvability of the
reasonable further progress (RFP) and attainment demonstrations (and
other provisions) for areas that rely on these three regulations. In
general, these rules provide much needed NOX, direct PM and
SO2 reductions, however, the attainment plans do not require
specific reductions from any particular rule. Thus, EPA believes that
the approval of these three regulations, which have never been approved
into the SIP, does not interfere with RFP, attainment or any other
applicable requirement of the Act.
5. Will the State have adequate personnel and funding for the
regulations?
Chapter XIII of CARB's ``Initial Statement of Reasons for Proposed
Rulemaking, Proposed Amendments to the Truck and Bus Regulation, the
Drayage Truck Regulation and the Tractor-Trailer Greenhouse Gas
Regulation,'' dated October 2010, addresses implementation and
enforcement of the regulations. As described therein, CARB intends to
conduct enforcement of the Truck and Bus Regulation and Drayage Truck
Regulation similarly to enforcement of CARB's commercial vehicle and
school bus idling regulations. CARB's enforcement staff intends to use
the inspection and audit methods that they have developed during the
many years of experience enforcing the Heavy-Duty Vehicle Inspection
Program (adopted into law in 1988) and the Periodic Smoke Inspection
Program (adopted into law in 1990).
CARB indicates that enforcement activities will include inspections
at border crossings, California Highway Patrol (CHP) weigh stations,
fleet facilities, and randomly selected roadside locations and audits
of records. See appendix H to CARB's initial statement of reasons for
proposed rulemaking, dated October 2010, cited above. These activities
could result in corrective actions and substantial civil penalties for
non-compliance with the regulations. CARB's enforcement activities are
summarized in annual reports. See, e.g., CARB's 2009 Annual Enforcement
Report (August 2010).
We recognize the general effectiveness of CARB's motor vehicle
enforcement program and expect CARB's approach to enforcement of the
Truck and Bus and Drayage Truck regulations, as described above, to be
equally effective; however, none of the information we have received or
were able to download from CARB's Web site has identified the specific
additional resources and personnel that CARB has allocated to the Truck
and Bus Regulation. We expect such information to be submitted to EPA
as part of the SIP submittal package contained the final adopted
versions of the regulations.
Since the original OGV Clean Fuels Regulation became effective,
CARB enforcement staff has conducted over 450 vessel inspections and
the compliance rate, as determined by CARB enforcement staff, is
approximately 95%. See page ES-2 of CARB's Initial Statement of Reasons
for Proposed Rulemaking, Proposed Amendments to the Regulations ``Fuel
Sulfur and Other Operational Requirements for Ocean-Going Vessels
within California Waters and 24 Nautical Miles of the California
Baseline,'' dated May 2011. Based on CARB's enforcement activities
since the effective date of the original OGV Clean Fuels Regulation, we
believe that CARB has allocated adequate funding and personnel for the
regulation.
6. EPA's Regulation Evaluation Conclusion
Based on the above discussion, we believe these regulations are
consistent with the relevant CAA requirements, policies and guidance.
C. Proposed Action, Public Comment and Final Action
For the reasons given above, we believe CARB's Truck and Bus
Regulation, Drayage Truck Regulation, and OGV Clean Fuels Regulation
fulfill all relevant requirements, and thus, EPA is proposing to
approve these regulations under section 110(k)(3) of the CAA once we
receive the final adopted versions as a revision to the California SIP.
If the State substantially revises these submitted regulations from the
versions proposed by the State and submitted for ``parallel
processing,'' this will result in the need for additional proposed
rulemaking on these regulations.
We will accept comments from the public on this proposal for the
next 30 days. Unless we receive convincing new information during the
comment period, we intend to publish a final approval
[[Page 40660]]
action that will incorporate these regulations into the federally
enforceable SIP.
III. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 29, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-17232 Filed 7-8-11; 8:45 am]
BILLING CODE 6560-50-P
