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Citation: 42 Fed. Reg. 31639 1977

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its heavy-duty vehicles would suffer a 15
to 20 -percent fuel economy penalty in
order to meet the 1983 California stand-
ards. Finally, the CARB estimated cost
increases for 1983 model year gasoline-.
powered and diesel-powered heavy-duty
vehicles of approximately 150 and 300
dollars per vehicle, respectively, above
1980 model year costs.4
III. FINDINGS AND DECISION
Having given due consideration to the
record 6f the public hearing, all mate-
rial submitted for the record, and other
relevant information, I find that I can-
not make the determinations required
for a denial of a waiver under section
209(b) of the Act, and therefore, I here-
by waive application of section 209 (a) of
the Act to the State of California with
respect to the following section of Title
13 of '-the California Administrative
Code:
Section 1956.5, adopted October 5,
1976, and "California Exhaust Emission
Standards and Test Procedures for 1979
and Subsequent Model-Year Heavy-Duty
Engines and Vehicles," adopted October
5, 1976, with respect to the 1980-1982
model year, and 1983 and subsequent.
model years California standards and
certification procedures.
A copy of the above standards and
procedures, as we]l as the record of the
hearing and those documents used in ar-
'riving at this ,decision, is available for
public inspection during normal working
hours (8:00 am. to A:30 pm.) at the
U.S. Environmental Protection Agency,
Public Information Reference Unit,
Room 2922 (EPA Library), 401 M
Street, S.W., Washington, D.C. -20460.
Copies of the standards and test pro-
cedures are also available upon request
from the California Air Resources
Board, 1102 Q Street, Sacramento, Cali-
fornia 95812;
Dated: June 10, 1977. * oxk d
.DOUGLAS M. COSTLE,
Administrator.
[FR Doc.77-17838 Piled 6-21-77;8:45 aml
[FRL 737-3]
CALIFORNIA STATE MOTOR VEHICLE
POLLUTION CONTROL STANDARDS
Waiver of Federal Preemption
I. INTRODUCTION " model year.
By this decision, issued under section
209(b) of the Clean Air Act, as amended
(hereinafter the "Act")," I am granting
the State of California a waiver of Fed-
eral preemption to enforce the 1979
California heavy-duty motor vehicle and
engine exhaust emission standards and
* certification procedures. It is a condition
of this waiver that California also adopt
an alternate set of standards and certifi-
cation procedures for the 1979 model year
that are identical to those applicable ject of a waiver decision which will be
published separately in the FEDERAL REG-
See T!r.. supra note 9. at 98. 138.
See State of California Staff Report, at 9.
- 142 U.S.C. 1857f-6a(b).
FEDERAL REGISTER, VOL 42, NO. 120-WEDNESDAY, JUNE 22, 1977
NOTICES
under the California heaLvy-duty regua-
tions for the-1978 model year.
Under section 209(b) of the Act. the
Administrator Is requireed to grant the
State of California a w alver of Federal
preemption, after opport unity for a pub-
lic hearing, unless he finds that the
State of California dotes not require
standards more stringent than applicable
Federal standards to aeet compelling
and extraordinary con itions, or that
such State standards an d accompanying
enforcement procedure 5 are not con-
sistent with section 202 iforcement
(a) of the pro-
Act.
State standards and ento be consistent
cedures are deemed not ere is inadequate
with section 202(a) if thedevelopment and
lead time to permit the c
application of the requ Isite technology.
giving appropriate cons Ideration to the
cost of compliance wi thin that time
frame, or if the Federa 1 and California
test procedures are inco osistent. For the
reasons given below, I Iiave determined
that I cannot make the Iindings required
for the denial of a wal ver If California
satisfies the condition of this waiver,
However, if amendment s to the current
Federal heavy-duty exhaust emission
tion prcedures
standards and certiflca td fcr the 1979
are subsequently adopt
model year, I may then have to recon-
sider whether this Califiornia waiver will
remain in effect.
IL BACKGRCoUN
On October 5, 1976, t1ie California Air
Resources Board (CAR B) adopted ex-
haust emission standardIs and certflca-
tion procedures for 1979 and subsequent
model year heavy-duty motor vehicles
and engines. These Call fornia standards
are (expressed In grams per brake horse-
power hour) :
Hydro-
Hydro. Carben Oxides carbong
Model yer carbons men
troth oluss!
nltrogen
25 ........
1 ................... t orr
15 23 7,.5 ..........
19S to 192 ................ :5 ........
or 2 ..
L0
1933 and
subsequent ..... .5 5........
9Under the 1979 and 1,G0 to 11%standards, thp mnnu-
facturers have the option of zrty lllc ch -tne
family to either set o stnndards oppUtable in a gsen
On November 12, 197 6, California re-
queted a waiver of Fed[eral preemption
for these standards an d accompanying
certification proceduers. A public ipUbic hearing
a'n to
was helqlin January 27, 1977,purusantto
notice published by the EPA in the FaD-
ERAL REGISTER in order to consider this
waiver request and othe rs This decision
will deal solely with th e waiver request
for the 1979 model yea r. The 1980 and
subsequent model year standards and
certification procedures will be the sub-
ISTER.
,See 42 FR 1065 (Jaunu .y 5. 1977).
31639
flI. DIscussioN
Stringency and Compelling Conditions.
Under one of the criteria of section 209
(b) of the Act, I am authorized to with-
hold a waiver from California If I find
that California "does not require stand-
ards more stringent than applicable Fed-
real standards to meet compelling and
extraordinary conditions." Based on the
findings of previous waiver decisions and
other information generally available,: I
believe that both sets of 1979 California
standards are clearly more stringent
than the currently applicable 1977 and
subsequent model year Federal standards
of 16 grams per brake horsepower hour
(gms/BHP-hr) hydrocarbons
oxides of nitrogen (NOx), and(HC)40
plus
BR-hr carbon monoxide (CO),gins/ as
measured under the engine dynamome-
ter procedure
Consistency. Under section 209(b), I
may also deny a California waiver re-
quest If I find that the California "stand-
ards and accompanying enforcement
procedures are not consistent with sec-
tion 202(a)" of the Act. The various
manufacturers all stressed that Call-
'fornia should adopt heavy-duty exhaust
emission test procedures that were Iden-
tical to the applicable Federal procedures
for each corresponding model year, and
that any-waiver granted to California
should be conditioned on such action
by California. Ih respo)3se to the ques-
tion of consistency, the CARB stated
2&-e 36 FR 8172 (April 30. 1971); 40 FR
23102. 23105 (May 28, 1975); State of Call-
fornia, Air Resources Board Staff Report 76-
20-2, October 5, 1976. at 1; Letter from
Stanley W. Legro, Assistant Administrator
for Enforcement, EPA. to William H. Lewis,
Jr. Executive Officer of the CARB, October
15. 1975; Letter from William H. Lewis, Jr
Executive OMcer of the CARB. to Russell
Train, former Administrator of the EPA.,
November 12, 1976; Transcript of Public
Hearing to Consider California's Request for
Waiver of Federal
to Exhaust Preemption With Respect
Emhnlson Standards and Test
5Procedures for 1979 and Subsequent Model
Year Heavy Duty Motor Velltcles. and Ap-
plicatlon of SHED Evaporative Test Proce-
5 dures for 1978 and Subeequent Model Year
0 8.-87,
Motor Vehicles, January 27. 19T7 at 14.
111-112 (hereinafter Tr.'); Letter
4.5 ffom George P. Hanley, General Motors Tech-
nical Center, General Motors Corporation, to
Jackson. Director, Mobile
Benjamia R.
Source Enforcement Division. EPA, February
18. 1977.
Although it is arguable that one set of
California standards (ie., 1.5 gms/BHP-hr.
HC. 25 gmsBHP-hr, Co. 7.5 gms/BHP-hr.
NOx). as applicable to diesel-powered heavy-
duty vehicles and engines, may be less
stringent than the corresponding set of 1978
California standards (I.e. 1.0 gms/BHP-br.
HC. 25 gms/BHP-hr. CO, 7.5 gms/BHP-hr.
NOx). see Letter from George P. Hanley to
Benjamin R. Jackson. supra at 2. In any
event, this set of Callfornl4 standattis is
clearly more stringent than the applicable
Federal standards. See State of California,
Air Resources Board. Stall Report 7-20--2.
supra at 10; Letter from William H. Lewis.
Jr.. to Russell Train. supra at 1. 2.
4 See 40 C.P.R. 86.077-10 (1976) (gasoline-
fueled heavy-duty engines); 40 C.F.R.
8es77-11 (1916) (diesel-fueled heavy-duty
engines).
3
See Tr. at 160-161. 168-170. 185-186.
31640
that It had adopted amendments to its
heavy-duty engine exhaust emission test
procedures specifically in anticipation of
a similar action by the EPA and would
defer implementation of its amended
heavy-duty test procedures until such
time as they become effective at the
0
Federal level. The CARB also stated
that it would amend its 1979 model year
test procedures, except in those areas
where there have been historical differ-
ences, to conform to those finally adopted
by the EPA for 1979.7 In light of the
above discusison, I am reasonably as-
sured that the California certification
procedures for any particular model year
will remain consistent with the ap-
plicable Federal procedures, and that,
therefore, the test of consistency will
have been met.8 In any event, if Cali-
fornia satisfies the condition of this
waiver, I have decided that for the 1979
model year, EPA will accept the data used
to successfully certify any heavy-duty
engine under the California test proce-
dures as demonstrating that such en-
gine complies with the applicable Fed-
eral standards, and a Federal heavy-
duty engine certificate for this engine
will be issued on this basis.
-Lead Time and Technology. Various
manufacturers indicated' that -the ques-
tion of adequate lead time was dependent
on the promulgation of the proposed
amendments to the Federal heavy-duty
vehicle regulations." General Motors, In-
ternational Harvester and Chrysler
stated that they would have lead time
problems In meeting the 1979 California
certification requirements associated
with instrumentation acquisition; set-up
and check-out in the event that identical
1979 Federal heavy-duty vehicle certifi-
cation requirements were not promul-
gated in the near future.", General Mo-
tors further stated that it would be un-
able to meet the California requirements
for Its 1979 model year diesel-powered
heavY-duty vehicles and engines regard-
less of when the proposed Federal
amendments were promulgated, since
'Sce Tr. at 14, 32-33, 191.
See TY. at 14.
'See S. Rep. No. 403, 90th Cong., 1st Sess. Motor Vehicle Emission Laboratory in Ann 1979 that are Identical to those applicable
33 (1967).
9See Tr, at 30-32. 38, 44, 67-68, 89-90,
99-100, 115, 119-120, 161, 177-184, 20.5,
"0See 41 FR 21292 (May 24, 1976).
11See Tr. at 44, 67-68, 89-90, 99-100, 115,
119-120, 205. Under the California 1979 cer-
tification procedures, HC emissions must be
measured during certification by a heated
flame Ionization detector (HFID) instead of
the non-dispersive infrared (NDIR) analyzer
that had been used In testing gasoline-fueled
engines In prior model years. In addition,
these procedures also require that NOx emis-
sions be measured by a chemiluminescence
(CL) analyzer In order to certify both gas-
oline and diesel-powered engines in Cali-
fornia for the 1979 model year.
FEDERAL REGISTER,. VOL. 42, NO. 120-WEDNESDAY, JUNE 22, 1977
NOTICES
these amendments would require exten- as noted above, would amend Its 1979
sive revisions to its existing diesel test procedures to be consistent with the
facilities in addition to the procurement 1979 Federal procedures in the event that
of new instrumentation." On the other .EPA concluded that It could not promul-
hand, Ford stated that there would be gate the Identical regulations for 1979
insufficient lead time prior to the 1979 on account of lead time problems."
model year in which to meet either the Although the record Indicates that the
Federal or California 1979 certification requisite emission control technology Is
requirements if the proposed Federal available to meet the requirements of the
standards and certification procedures 1979 California heavy-duty 'standards
were promulgated in the near future," and certification procedures," I am re-
,However, Ford also stated that while the quired to deny California a waiver under
California certification procedures must section 209(b) of the Act If I find that
be further clarified before they can be there is Insufficient lead time to apply
implemented," it would only require 12 this technology to meet these standards
months of lead time to comply with the and certification procedures, In the case
1979 California regulations under cir- of the 1979 California heavy-duty regu-
cumstances where the 1978 Federar reg- lations, the lead time Involved must be
ulations continued in effect for the 1979 spent In tooling and setting up the facili-
model year.' ties In order to actually test and produce
As a solution to these lead time prob- the vehicles in accordance with these
lems, some manufacturers suggested that regulations. Both the record and the con-
the Administrator condition any waiver clusions of my staff with respect to lead
time in the case of the proposed Federal
granted to California on the adoption by heavy-duty test procedures' Indicate
the CARB of certification procedures
that there Is insufficient lead time to re-
identical to those Federal procedures in quire all of the manufacturers to com-
0
effect for.the 1979 model year, or on theply with the California heavy-duty test
adoption by the CARB of optional cer- procedures as a mandatory requirement
tification procedures for any model year for the 1979 model year." Since General
Motors and Ford have already Initiated
that are identical to the applicable Fed-
efforts to comply with the 1979 Califor-
eral procedures." In adopting the 1979 nia regulations,' the possibility does exist
California certification procedures, the that the manufacturers' estimates of lead
CARB stated that ithlad relied somewhat time may have been pessimistic, How-
on EPA's preliminary judgment with ever, plausible reasons for these esti-
mates were given by the various manu-
respect to the requisite amount of lead
facturers," and no concrete reasons for
time needed to meet the requirements not accepting them were advanced by the
prescribed under these procedures, and CARB or any other witness,
Accordingly, I conclude that the in-
2See Tr.at 89-90. dustry has met Its burden of proof that
3See Tr.at 161-162. there Is insufficient lead time to comply
" Ford contended that the 1979 California with the requirements set forth in the
certification procedures must be clarified
since it believed that they were infeasible, 1979 California heavy-duty vehicle and
impractical, and ambiguous. See Memoran- engine regulations within the time framo
dum from Helen 0. Petrauskas, Ford Motor specified. However, I have decided to
Company, to Benjamin R. Jackson, Director,
Mobile Source Enforcement Division, EPA, waive the application of section 209(a)
February 21, 1977, at 14; see also Tr. at of the Act to California for the 1979 Cali-
163-164, 170-177. However, the CARB has fornia heavy-duty standards and certifi-
Indicated that it would be possible to con-
duct, testing in exact compliance with the cation procedures if California subse-
requirements of the California regulations quently adopts an optional set of stand-
on a timely basis for the 1979 model year. ards and certification procedures for
See Tr. at 34-40. Furthermore, the EPA's
Arbor, Michigan. has satisfactorily run tests under the California heavy-duty regula-
under these certification procedures. Never-
theless, the EPA may promulgate Federal
heavy-duty engine regulations for 1979 and 1SSee Tr. at 14,22,31-33,
subsequent model years In the future that "0See Tr. at 165, 205 See also memorandum
Incorporate the industry's comments on the from Robert Maxwell, Emission Control
proposed Federal regulations, see 41 FR Technology Division, EPA, to Daniel Stein-
21292 (May 24, 1976), In order to accom- way, Mobile Source Enforcement Division,
modate the various test facilities utilized by EPA, Marcb 17, 1977, at 6.
the Industry. See Letter from John P. De- -See 41 FR 21292 (May 24,1976),
Kany, Director, Emission Control Technology " See Memorandum from Robert Maxwell
Division, EPA, to T. M. Fisher, General Mo- to Daniel Steinway, supra note 20, at 6.
tors Technical Center, General Motors Cor- =See Tr. at 142; see also Memorandum
poration, March 1, 1977. from Helen 0. Petruskas to Benjamin R.
" See Ti. at 163-165, 170-178. Jackson, supra note lb, at 16.
"See Tr. at 91, 160, 186,206.. "ee Tr, at 44, 67-08, 89-90, 110-120,
I7See Ti. at 163, 168, 186, 191, 206. 161-164, 183-185.

tions for the 1978 model year. This limi-
tation is placedon the waiver for the 1979
California heavy-duty regulations -in di-
rect response to the recommendations
of the vehicle manufacturers and is in
accordance with the intent of California
to maintain consistency with the 1979
Federal certification procedures.
With regard to the cost of compliance
with the 1979 California heavy-duty ve-
hicle regulations, very little specific in-
formation was provided by the manu-
facturers at the hearing concerning the
cost of purchasing the instrumentation
required under these regulations.
Objections to Granting the Waiver.
Certain manufacturers objected to the
1979 California heavy-duty vehicle and
engine exhaust emission standards and
certification procedures bn the grounds
that these requirements would not result
in significant improvements in the air
quality in the State of Californla.n How-
ever, such arguments all fall within the
EPA practice of leaving the decision on
controversial matters of public policy to
California's judgment.
IV. FNDING AND DECISION
Having given due consideration to the
-record of the public hearing, all mate-
rial submitted for that record, and other
relevant information, I find that I can-
not *make the determinations required
for a denial of the waiver under section
209(b) of the Act provided that Cali-
fornia also adopts an optional set- of
heavy-duty standards and certification.
procedures for the 1979 model year that
are identical to those in effect in Califor-
nia for the 1978 model year. Based upon
the above discussion and fiding, I here-
2' It has always been California's intent to
adopt 1979 standards that were of the same
stringency as the 1978 standards, when
viewed in the context of the applicable cer-
tification procedures. See Tr. at 14; State of
California, Air Resources Board, Staff Report
76-20-2, supra note 4, at 10. The stringency
of a particular set of emission standards Is
determined by the combined effect of the
numerical value of the standards and the
certification procedures used to demonstrate
compliance with these standards. 42 PR 3192,
3194 (January 17, 1977). Therefore, In order
to retain the same degree of stringency in a
particular set of standards, any change to the
certification procedures must be accom-
panted-by a corresponding adjustment to the
standards themsbIves. As a result, although
the manufacturers' concerns -were addressed
primarily to the 1979 California certifieson
procedures, the condition being impose? by
this decision requiring Callfolnia to adopt
the 1978 certification procedures for 1979 in-
eludes the adoptlodi of the 1978 standards as
well.- (California has been previously granted
a waiver for the 1978 standards and certifica-
tion procedures. See Letter from Stanley W,
Legro to William H. Lewis, Jr., supra note 4.)
This condition will permit manufacturers to
certify California heavy-duty vehicles and
engines in 1979 (the manufacturers have the
option of-certifying to either the 1978 stand-
ards and procedures or those originally
adopted for 1979) and will also allow Cali-
fornia's intent with respect to stringency to
be realized.
See Tr. at 167-168,193, 203-204.
See 41 FR 44209, 44210 (October 7, 1976);
42 FR 3192, 3194 (January 17, 1977).
FEDERAL REGISTER, VOL 42, NO. 120-WEDNESDAY, JUNE 22, 1977
NOTICES 31641
by waive application of section 209(a) of low. In some cases these applications -
the Act to the State of California with have recently been. received; in other
respect to the following section of Title cases, applications have been amended by
13 of the California Administrative Code the submission of additional supporting
if California satisfies the condition of data, the election of a new method of
this waiver: ' ' support, or the submission of new "offer
Section 1956.5, adopted October 5. to pay" statements.
1976, and "California Exhaust Emission In the case of all applications, the
Standards and Test Procedures for 1979 labeling furnished by the applicant for
and Subsequent Model-Year Heavy- the product will be available for inspec-
Duty Engines and Vehicles," adopted tion at the Environmental Protection
October 5, 1976, as applicable to the 1979 Agency, Room 209, East Tower, 401 M
model year standards and ceritfleaton Street SW., Washington D.C. 20460. In
procedures. If# amendments to the cur- the case of applications subject to the
rent Federal heavy-duty exhaust emis- new Section 3 regulations, and applica-
sions standards and accompanying en- tions not subject to the new- Section 3
forcement procedures are subsequently regulations which utilize either the 2(a)
adopted for the 1979 model year, I may or 2(b) method' of support specified in
then have to reconsider the question of the Interim Policy Statement, all data
whether this California waiver will re- citations submitted or referenced by the
main in effect. applicant In support of the application
A copy of the above standards and will be mnade available for inspection at
procedures, as well as the record of the the above address. This' information
hearing and those documents used In (proposed labeling and, where applicable,
arriving at this decision, Is available for data citations) will also be supplied by
public inspection during normal working mail, upon'request. However, such a re-
hours (8:00 a~m: to 4:30 pm.) at the quest should be made only when circum-
U.S. Environmental Protection Agency, stances make It inconvenient for the in-
Public Information Reference Unit, spection to be made at the Agency offices.
Room 2922 (EPA Library), 401 1. Street, Any person who (a) is or has been an
S.W. Washington, D.C. 20460. Copies of applicant, (b) believes that data he de-
the standards and test procedures are veloped and submitted to EPA on or after
also available upon request from the Jfanuary 1, 1970, is being used to support
California Air Resources Board, 1102 Q an application described in this notice,
Street, Sacramento, California 95812. (c) desires to assert a claim under Sec-
Dated: June 10, 1977. tion 3(c) (1) 0D) for such use of his data,
and (d) wishes to preserve his right to
DoUGLAs M. CoS=, have the Administrator determine the
Administrator. amount of reasonable compensation to
[FR Doe.77-17839 Piled 6-21-77;8:45 am] which he Is entitled for such use of the
data or the status of such data under
Section 10 must notify the Administrator
[OPP-33000/510 PRL 760-21 and the applicant named in the notice
DATA TO BE CONSIDERED IN SUPPORT in the FEDERAL REsTEmR of his claim by
OF APPLICATIONS certified mail. Notification to the Admn-
istrator should be addressed to the Prod-
- Receipt of Application for Pesticide uct Control Branch, Registration Divi-
Registration sion (WH-567), Office of Pesticide Pro-
On November 19, 1973, the Environ- grams, Environmental Protection
mental Protection Agency (EPA) pub- Agency, 401 M Street SW., Washington
lished in the FEDERAL REacsrxn (39 FR D.C. 20460. Every such claimant must
31862) its interim policy with respect to include, at a minimum, the information
the admiln traton of Section 3(c) (1) listed in the Interim Policy Statement of
(D) of the Federal Insecticide, Fungi- November 19, 1973.
cide, and Rodenticide Act (FIFRA), as Specific questions concerning applica-
amended ("Interim Policy Statement"). tions made to the Agency should be ad-
On January 22, 1976, EPA published In dressed to the designated Product Man-
the FEDERAL REGisTER a document en- ager (FM), Registration Division (WH-
itled "Registration of a Pesticide Prod- 567), Office of Pesticide Programs, at the
uct-Consideration of Data by the above address, or by telephone as follows:
Administrator in Support of an Applica- 1 11. 12, and 13-202/755-9315
tion" (41 FR 3339). This document de- P21 and 22-202/426-2454
scribed the changes in the Agency's pro.- P% 2-1--202/755-2196
P21 31-202/426-2635
cedures for Implemexrtlng Section 3(c)
(1) (D) of FIFRA, as set out in the In- P2M 33-202755-9041
P11, 16, and 17-202/426-9425
terim Policy Statement which were f- 1"Ll 23--202/755-1397
fected by the enactment of the recent PE 25-202/755-2632
amendments to FIPRA on November 28, M-1 32-202/426-9485
1975 (Pub. L. 94-140), and the new reg- P1U 3--202/42W-9-90
ulations governing the registration and
re-registeration of peiticldes which be--
The Interim Policy Statement requires
that claims for compensation be filed on
came effective on August 4, 1975 (40 CFR or before August 22, 1977. With the r-nx
Part 162). ception of 2(c) applications not subjint
Pursuant to the procedures set forth
to the new Section 3 regulations, and for
in these FEDERAL REcisrax documents, which a sixty-day hold period for claim
EPA hereby gives notice of the applica- s provided, EPA will not delay any regis-
tions for pesticide registration listed be- tration pending the assertion of claims