[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Pages 7040-7042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2913]




California State Motor Vehicle Pollution Control Standards; 
Greenhouse Gas Regulations; Reconsideration of Previous Denial of a 
Waiver of Preemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice for public hearing and comment.


SUMMARY: The Clean Air Act preempts States from adopting emission 
standards for new motor vehicles and motor vehicle engines but requires 
EPA to waive this preemption for California unless EPA makes certain 
findings. Acting at the direction of the California legislature, the 
California Air Resources Board (CARB) adopted greenhouse gas emission 
regulations for passenger cars, light-duty trucks and medium-duty 
passenger vehicles beginning with the 2009 model year. By letter dated 
December 21, 2005, CARB submitted a request that EPA grant a waiver for 
these regulations. EPA denied this request on March 6, 2008. EPA 
believes that there are significant issues regarding the

[[Page 7041]]

Agency's denial of the waiver. The denial was a substantial departure 
from EPA's longstanding interpretation of the Clean Air Act's waiver 
provisions and the history of granting waivers to California for its 
new motor vehicle emission program. Many different parties--including 
California, States that have adopted or are interested in adopting 
California's standards, members of Congress, scientists, and other 
stakeholders--have expressed similar concerns about the denial of the 
waiver. EPA believes there is merit to reconsidering its decision 
denying California's waiver. Therefore, this Federal Register notice 
initiates such reconsideration, and announces a public hearing 
concerning California's request and a re-opening of the written comment 

DATES: A public hearing concerning this reconsideration will be held on 
March 5, 2009, beginning at 9:30 a.m. Any party planning to present 
oral testimony should notify EPA by March 2, 2009, expressing its 
interest. Any party may submit written comments by April 6, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0173, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-9744.
     Mail: U.S. Environmental Protection Agency, EPA West (Air 
Docket), 1200 Pennsylvania Ave., NW., Room B108, Mail Code 6102T, 
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0173. 
Please include a total of two copies.
     Hand Delivery: EPA Docket Center, EPA/DC, EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
    EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. 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. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy.
    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 non-confidential 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 below 
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.
    Parties wishing to present oral testimony at the public hearing 
should provide notice to the contact person listed below. EPA will hold 
the public hearing at the EPA Potomac Yard Conference Center, 2777 
Crystal Drive, Room S-1204, Arlington, VA 22202.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division (6405J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460. Telephone: 
(202) 343-9256, Fax: (202) 343-2804, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: Section 209(a) of the Clean Air Act, as 
amended (``Act''), 42 U.S.C. 7543(a), generally preempts State 
standards relating to the control of emissions from new motor vehicles 
and new motor vehicle engines. As an exception to this general 
preemption, section 209(b) of the Act requires the Administrator of EPA 
to waive application of the section 209(a) preemption to California 
provided certain criteria, as noted below, are met. Other States may 
adopt California's standards if they meet certain statutory criteria in 
doing so. 42 U.S.C. 7507.
    Section 209(b) of the Act requires the Administrator, after notice 
and opportunity for public hearing, to grant a waiver to California 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.'' 42 U.S.C. 7543(b)(1). The Administrator 
must grant a waiver unless she finds that (1) California's 
determination regarding the protectiveness of its standards is 
arbitrary and capricious, (2) California does not need the state 
standards to meet ``compelling and extraordinary conditions,'' or (3) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act. 42 U.S.C. 7543(b)(A)-(C).
    The March 6, 2008 waiver denial (73 FR 12156) significantly 
departed from EPA's longstanding interpretation of the Clean Air Act's 
waiver provisions and from the Agency's history, after appropriate 
review, of granting waivers to California for its new motor vehicle 
emission program. Moreover, since the denial was issued, California, 
States interested in implementing CA's standards, members of Congress, 
scientists, and other stakeholders have identified a number of concerns 
regarding EPA's decision. Most recently, on January 21, 2009, EPA 
received a letter from CARB outlining several significant issues for 
the Administrator to review in reconsidering the March 6, 2008 waiver 
denial. Based on all of the above, EPA believes it is important to 
fully review and reconsider the decision

[[Page 7042]]

denying a waiver for California's standards.
    Included in CARB's letter is a request that EPA return to its 
traditional review of California's standards under section 209(b)(1)(B) 
by considering whether California continues to need its own motor 
vehicle emission program, rather than evaluating greenhouse gas 
standards separately. As part of this review, CARB suggests that EPA 
should base its decision on whether California continues to need to 
have its own motor vehicle program to address various factors in 
California, such as climate, large human and vehicle population, 
topography and meteorology, and should not apply this test separately 
to the greenhouse gas emission standards. In addition, CARB requests 
that EPA reconsider (and reject) the alternative grounds for the 
denial, namely, EPA's determination that the impacts from climate 
change in California were not sufficiently different from the nation as 
a whole. In addition to arguing that this is not an appropriate 
interpretation of section 209(b)(1), CARB states that EPA improperly 
weighed the evidence of impacts in California (including evidence that 
greenhouse gas standard will help reduce smog-related emissions) and 
that the record supports granting the waiver even under EPA's new 
interpretation of section 209(b)(1).
    Prior to the March 6, 2008 denial, the Agency provided notice and 
an opportunity to comment on whether (a) California's determination 
that its motor vehicle emission standards are, in the aggregate, at 
least as protective of public health and welfare as applicable Federal 
standards is arbitrary and capricious, (b) California needs such 
standards to meet compelling and extraordinary conditions, and (c) 
California's standards and accompanying enforcement procedures are 
consistent with section 202(a) of the Clean Air Act. We now seek any 
new or additional information or comments regarding these criteria. We 
also seek comment on: (1) whether EPA's interpretation and application 
of section 209(b)(1) in EPA's March 6, 2008 waiver denial was 
appropriate, and (2) the effect of the March 6, 2008 denial on whether 
California's GHG standards are consistent with section 202(a) of the 
Act, including lead time.

    Dated: February 6, 2009.
Lisa P. Jackson,
 [FR Doc. E9-2913 Filed 2-11-09; 8:45 am]