BOARD MEETING DATE: June 4, 2004
AGENDA NO. 38

Request CARB to Submit Fleet Rules to U.S. EPA for Waiver of Preemption Under Clean Air Act Section 209

SYNOPSIS:

In 2000 and 2001, the Board adopted a series of clean fleet rules requiring public and certain private fleets to acquire vehicles using clean alternative fuels when adding to or replacing vehicles in their fleets. The United States Supreme Court on April 28, 2004, held that the fleet rules are preempted by the federal Clean Air Act and therefore may not be enforced, at least as far as they regulate privately-owned fleets. This action is to request CARB to submit the fleet rules to the U.S. EPA for Waiver of Preemption under section 209 of the Clean Air Act, which would allow the rules to again be enforced.

COMMITTEE:

Not applicable.

RECOMMENDED ACTION:

Adopt the attached Resolution requesting CARB to submit the fleet rules to the U.S. EPA for a Waiver of Preemption under Clean Air Act Section 209.

Barry R. Wallerstein, D.Env.
Executive Officer

Background

In 2000 and 2001, the Board adopted a series of fleet rules requiring public and some private fleets to acquire clean alternative fuel vehicles when adding or replacing vehicles in their fleets. The rules include: 1186.1 (Less-Polluting Sweepers), 1191 (Clean On-Road Light- and Medium-Duty Public Fleet Vehicles), 1192 (Clean On-Road Transit Buses), 1193 (Clean On-Road Residential and Commercial Refuse Collection Vehicles), 1194 (Commercial Airport Ground Access), 1195 (Clean On-Road School Buses), and 1196 (Clean On-Road Heavy-Duty Public Fleet Vehicles). A major impetus behind the fleet rules was a finding by the second Multiple Air Toxics Exposure Study (MATES II) in 1999 that over 70% of the carcinogenic risk from air contaminants in the region derives from diesel particulate emissions. So far the rules have resulted in the acquisition of over 5,000 clean fuel heavy-duty vehicles, primarily natural gas.

The Engine Manufacturers Association and Western States Petroleum Association sued the District alleging that the fleet rules were preempted by the federal Clean Air Act (CAA). The District prevailed in this litigation in the trial court and Court of Appeals. However, on April 28, 2004, the U.S. Supreme Court held that the fleet rules were invalid because they were preempted by Section 209 of the federal CAA, at least as far as they regulate private entities. As a result, the rules may not be enforced, at least as to private entities. However, U.S. EPA has authority to grant a waiver of preemption under Section 209(b) of the CAA. If U.S. EPA grants the waiver, the rules could once again be enforced. This action is to request the CARB to submit the fleet rules to U.S. EPA for Waiver of Preemption.

Proposal

Section 209(a) of the federal Clean Air Act prohibits states and local governments from adopting or enforcing any standards relating to the control of emissions from new motor vehicles. However, section 209(b) provides that California may apply to U.S. EPA for a waiver of preemption allowing it to adopt such standards. The California Air Resources Board (CARB) is the state air pollution control agency for all purposes under federal law (Health & Safety Code §39602) and is authorized to seek a waiver of preemption from U.S. EPA. Staff recommends that the District request CARB to submit the fleet rules to U.S. EPA for a waiver of preemption.

In order to seek a waiver of preemption, California must find that the standards it adopts are in the aggregate at least as protective of public health and welfare as the federal standards (CAA §209(b)). The attached Resolution contains such a finding, and there is substantial evidence to support such a finding. The fleet rules require fleet operators to purchase the cleaner among vehicles already available and certified for sale in California. All vehicles acquired under the fleet rules must comply with California standards for motor vehicles, for which a waiver has already been granted. All vehicles acquired under the fleet rules will be as clean or cleaner in terms of air pollution emissions as vehicles authorized under the federal standards. As a result the fleet rules are in the aggregate at least as protective of public health and welfare as the federal standards.

Under Section 209, the U.S. EPA must grant a waiver of preemption unless it finds that: 1) California’s finding with respect to health-protectiveness is arbitrary and capricious; 2) California does not need the standards to meet compelling and extraordinary conditions; or 3) the standards and enforcement procedures are not consistent with Section 202 (42 U.S.C. §7521(a)). There is substantial evidence that California needs the fleet rules to meet compelling and extraordinary conditions. The relevant inquiry under this criterion is whether California needs its own motor vehicle pollution control program to meet compelling and extraordinary conditions, not whether any given standards are necessary to meet such conditions. (49 Fed.Reg. 18887, 18889-18890, May 3, 1984.) California continues to need its own motor vehicle pollution control program due to unique circumstances. In addition, the South Coast Air Basin is the only "extreme" nonattainment area for ozone in the nation. According to the 2003 AQMP, the region needs an additional 181 tons/day of NOx reductions and an additional 265 tons/day of VOC reductions beyond measures that can be identified to date in order to attain the ozone standard by 2010 as required by the CAA. The Basin is also a "serious" nonattainment area for PM10 and is required to attain that standard by 2006. Additional reductions will be required to attain the new 8-hour ozone standard and PM2.5 standard beyond 2010. Every feasible reduction is necessary to attain these standards. The fleet rules will provide 3.9 tons/day of NOx reductions, .04 tons/day of VOC reductions, and .3 tons/day of PM10 reductions by 2010. In addition, the fleet rules will spur the development of clean fuel technology and infrastructure which will further the penetration of cleaner vehicles and result in additional reductions necessary to attain applicable standards. These rules are therefore necessary to meet compelling and extraordinary conditions. These rules are also necessary to reduce toxic impacts of diesel particulate, which has been found to be responsible for 70% of the carcinogenic risk from toxic contaminants in the district.

Finally, the fleet rules are consistent with applicable federal standards because they depend on California-certified vehicles and do not affect these certification procedures in any way. The California certification requirements have already been found to be consistent with federal standards by previous waivers having been granted. In addition, the fleet rules depend on vehicles that are already available and do not impose any new standards which require lead time to meet, so the rules are consistent with applicable federal standards.

Based on the foregoing, staff recommends the Board approve the attached Resolution requesting CARB to submit the fleet rules to U.S. EPA for a Waiver of Preemption.

Resource Impacts

This action will not impact resources of the District.

Attachments

Resolution Requesting CARB to Submit the Fleet Rules to the U.S. EPA for Waiver of Preemption
 

Resolution No. 04-____

A Resolution Requesting the California Air Resources Board to Submit the Fleet Rules to United States Environmental Protection Agency for Waiver of Preemption

WHEREAS, California State Law authorizes the South Coast Air Quality Management District (SCAQMD) to adopt fleet rules applicable within the district (Health & Safety Code §40447.5) and the SCAQMD has adopted a series of fleet rules;

WHEREAS, on April 28, 2004, the United States Supreme Court held that the District’s fleet rules appear to be preempted by the Federal Clean Air Act; and

WHEREAS, the fleet rules require the purchase of the cleaner and lower-emitting vehicles among those already available and certified for sale in California; and

WHEREAS, vehicles purchased under the fleet rules will be as clean or cleaner than vehicles certified under applicable federal standards; and

WHEREAS, the Governing Board therefore finds that the fleet rules are in the aggregate at least as protective as public health and welfare as applicable federal standards; and

WHEREAS, the Governing Board desires that the fleet rules continue to be implemented and enforced within the District;

NOW, THEREFORE, BE IT RESOLVED that the Governing Board hereby requests the California Air Resources Board to submit to the U.S. EPA for a Waiver of Preemption under the federal Clean Air Act, Section 209(b), the following fleet rules, and take whatever actions are necessary to assure that the rules qualify for waiver under Section 209(b):

1186.1	(Less-Polluting Sweepers);
1191	(Clean On-Road Light- and Medium-Duty Public Fleet Vehicles);
1192	(Clean On-Road Transit Buses);
1193	(Clean On-Road Residential and Commercial Refuse Collection Vehicles);
1194	(Commercial Airport Ground Access);
1195	(Clean On-Road School Buses); and
1196	(Clean On-Road Heavy-Duty Public Fleet Vehicles).

BE IT FURTHER RESOLVED that the Executive Officer is directed to provide any additional information, execute any additional documents, and do any other acts necessary or convenient to further the goal of obtaining from U.S. EPA a Waiver of Preemption for the fleet rules.

________________________      _________________________________
Date                                               Clerk of the Boards

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