02-12709. California State Motor Vehicle Pollution Control Standards; Request for Waiver of Federal Preemption; Within the Scope Request; Opportunity for Public Hearing

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Opportunity for public hearing and comment.

SUMMARY:

The California Air Resources Board (CARB) has notified EPA that it has adopted amendments to its Low-Emission Vehicle (LEV) regulations including amendments to its exhaust emission standards, evaporative emission standards, its certification requirements, and to its Zero-Emission-Vehicle (ZEV) program (collectively the “LEVII” amendments; the ZEV amendments are referred to as the “1999 ZEV amendments”). By letter dated May 30, 2001, California requested that EPA grant a waiver of preemption under section 209(b) of the Clean Air Act (CAA), 42 U.S.C. 7543(b) for the LEVII amendments. By letter dated February 7, 2002, California requested that EPA confirm CARB's determination that a limited portion of the LEVII amendments, the 1999 ZEV amendments, are within-the-scope of previously issued waivers granted by EPA. This notice announces that EPA has tentatively scheduled two successive public hearings concerning California's requests and that EPA is accepting comments on these requests. EPA invites comments on all relevant aspects of California's requests, in particular, whether EPA should waive preemption of California's LEVII amendments, and whether the 1999 ZEV amendments are within the scope of previous waivers and, if not, whether EPA should waive preemption for the 1999 ZEV amendments.

DATES:

EPA has tentatively scheduled a public hearing concerning the 1999 ZEV amendments on June 20, 2002 beginning at 10:00 a.m. EPA has also tentatively scheduled a public hearing concerning the LEVII amendments to commence immediately following the hearing for the 1999 ZEV amendments and may carry over until the following day. EPA will hold hearings only if a party notifies EPA by June 10, 2002, expressing its interest in presenting oral testimony regarding the 1999 ZEV amendments and/or the LEVII amendments. By June 17, 2002, any person who plans to attend the hearing(s) should call David Dickinson at [phone] to learn if either hearing will be held. If EPA does not receive a request for one or both public hearings, then EPA will not hold one or both hearings, and instead consider CARB's requests based on written submissions to the docket. Any party may submit written comments by July 22, 2002.

ADDRESSES:

EPA will make available for public inspection at the Air and Radiation Docket and Information Center written comments received from interested parties, in addition to any testimony given at the public hearing. The Air Docket is open during working hours from 8 a.m. to 4 p.m. at EPA, Air Docket (6102), Room M-1500, Waterside Mall, 401 M St., SW., Washington, DC 20460. The reference number for this docket is A-99-26. Parties wishing to present oral testimony at either public hearing should provide written notice to David Dickinson at the address noted below; parties should submit any written comments to David Dickinson. If EPA receives a request for a public hearing, EPA will hold the public hearing in the first floor conference room at 501 3rd Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

David Dickinson, Certification and Compliance Division (6405J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460. Telephone: [phone], Fax: [phone], e-mail address: [e-mail]. EPA makes available an electronic copy of this Notice on the Office of Transportation and Air Quality's (OTAQ's) homepage (http://www.epa.gov/​otaq/​). Users can find this document by accessing the OTAQ homepage and looking at the path entitled “Regulations.” This service is free of charge, except any cost you already incur for Internet connectivity. Users can also get the official Federal Register version of the Notice on the day of publication on the primary website: (http://www.epa.gov/​docs/​fedrgstr/​EPA-AIR/​).

Please note that due to differences between the software used to develop the documents and the software into which the documents may be downloaded, changes in format, page length, etc., may occur.

SUPPLEMENTARY INFORMATION:

(A) Procedural History

On January 13, 1993, EPA published a Notice Regarding Waiver of Federal Preemption granting California a waiver of federal preemption for the California LEV program (58 FR 4166). The California LEV waiver included California's original ZEV requirements.

In March 1996, CARB amended the LEV program by eliminating the ZEV sales requirement for model years 1998 through 2002 (1996 ZEV amendments). On February 26, 1997, CARB submitted to the Administrator a request that EPA confirm the CARB Board's determination that the 1996 ZEV amendments to its LEV program (primarily repealing the ZEV requirements for 1998 through 2002), but also creating multiple ZEV credits for vehicles produced prior to the 2003 model year and test procedures for determining All-Electric Vehicle Range) are within-the-scope of the existing California LEV program which had previously received a waiver. On January 25, 2001, EPA published a document (66 FR 7751) confirming CARB's within the scope determination.

On May 30, 2001, CARB submitted to the Administrator its request that EPA grant a waiver of preemption for its LEVII regulations. (May 2001 letter) These LEVII regulations include amendments to its exhaust emission standards, evaporative emission standards, certification requirements, and to its Zero-Emission Vehicle program. Subsequently, on February 7, 2002, CARB submitted to the Administrator its request that EPA confirm CARB's determination that the limited portion of the previously submitted LEVII amendments that pertains to ZEVs does not require a new waiver of preemption but rather is within the scope of previously issued waivers. (February 2002 letter)

(B) Background and Discussion

Section 209(a) of the Clean Air Act, as amended (“Act”), 42 U.S.C. 7543(a), provides:

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

Section 209(b)(1) of the Act requires the Administrator, after notice and opportunity for public hearing, to waive application of the prohibitions of section 209(a) for any state that has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the state determines that the state standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards. California is the only state that is qualified to seek and receive a waiver under section 209(b). The Administrator must grant a waiver unless she finds that (A) the determination of the state is arbitrary and capricious, (B) the state does not need the state standards to meet compelling and extraordinary conditions, or (C) the state standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act.

CARB's May 2001 letter to the Administrator notified EPA that it had adopted amendments to its LEV program. These amendments include (1) imposing passenger car exhaust emission standards on most sport utility vehicles (SUVs), pick-up trucks, and mini-vans; (2) lower exhaust emission standards for all light- and medium-duty vehicles; (3) reductions in evaporative emission standards; (4) additional mechanisms for the generation of ZEV credits; and (5) establishment of “CAP 2000” certification requirements.

When EPA receives new waiver requests from CARB, EPA traditionally publishes a notice of opportunity for public hearing and comment and then publishes a decision in the Federal Register following the public comment period. In contrast, when EPA receives within the scope waiver requests from CARB, EPA traditionally publishes a decision in the Federal Register and concurrently invites public comment if an interested part is opposed to EPA's decision.

Because CARB seeks a new waiver for nearly all of the requirements in its LEVII regulations, and because EPA has already received written comment on CARB's within the scope request for its 1999 ZEV amendments, EPA invites comment on the following issues: (1) Whether California's 1999 ZEV amendments (a) undermine California's previous determination that its standards, in the aggregate, are at least as protective of public health and welfare as comparable Federal standards, (b) affect the consistency of California's requirements with section 202(a) of the Act, and (c) raise new issues affecting EPA's previous waiver determinations; and (2) Whether (a) California's determination that its standards (including its LEVII standards and including the 1999 ZEV amendments to the extent they are not within the scope of previous waivers), as referenced in its May 2001 request letter, are at least as protective of public health and welfare as applicable federal standards is arbitrary and capricious, (b) California needs separate standards to meet compelling and extraordinary conditions, and (c) California's standards and accompanying enforcement procedures are consistent with section 202(a) of the CAA?

Procedures for Public Participation

In recognition that public hearings are designed to give interested parties an opportunity to participate in this proceeding, there are no adverse parties as such. Statements by participants will not be subject to cross-examination by other participants without special approval by the presiding officer. The presiding officer is authorized to strike from the record statements that he or she deems irrelevant or repetitious and to impose reasonable time limits on the duration of the statement of any participant.

If hearing(s) are held, the Agency will make a verbatim record of the proceedings. Interested parties may arrange with the reporter at the hearing(s) to obtain a copy of the transcript at their own expense. Regardless of whether public hearing(s) are held, EPA will keep the record open until July 22, 2002. Upon expiration of the comment period, the Administrator will render a decision on CARB's request based on the record of the public hearing(s), if any, relevant written submissions, and other information that she deems pertinent. All information will be available for inspection at EPA Air Docket. (Docket No. A-99-26).

EPA requests that parties wishing to submit comments specify which issue, noted above, they are addressing. Commenters may submit one document which addresses several issues but they should separate, to the extent possible, those comments that relate to the 1999 ZEV amendments from those that relate to the LEVII amendments.

Persons with comments containing proprietary information must distinguish such information from other comments to the greatest possible extent and label it as “Confidential Business Information” (CBI). If a person making comments wants EPA to base its decision in part on a submission labeled CBI, then a nonconfidential version of the document that summarizes the key data or information should be submitted for the public docket. To ensure that proprietary information is not inadvertently placed in the docket, submissions containing such information should be sent directly to the contact person listed above and not to the public docket. Information covered by a claim of confidentiality will be disclosed by EPA only to the extent allowed and by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies the submission when EPA receives it, EPA will make it available to the public without further notice to the person making comments.

Dated: May 14, 2002.

Robert D. Brenner,

Deputy Assistant Administrator for Air and Radiation.