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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Washington, D. C. 20460
	oOo	
PUBLIC HEARING
on
CALIFORNIA WAIVER REQUEST
VOLUME I
Pages 1 - 209
August 3, 1977
Conference Rooms A-B-C
US Environmental Protection Agency, Region II
100 California Street
San Francisco, California
10:00 a. m.
Reported by;
RICHARD S. ADAMS
SMYTHE * WILSON
CtNTWBO SHOflTHANO KCPORTEM
(41S) M3-31MS4C140M

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HEARING PANEL	19 290
BENJAMIN R. JACKSON, Presiding Officer
Director, Mobile Source Enforcement Division
CHARLES GRAY
Chief, Standards Development and Support Branch
KARL HELLMAN
Chief, Technology and Evaluation Staff
RON E. KRUSE
Project Manager, Light Duty Vehicle Regulations
EPA STAFF
DANIEL M. STEINWAY
Attorney-Advisor
JAMES McNAB, III
Attorney-Advi sor
JOAN F. URBINE
Secretary
	oOo	
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INDEX
WITNESS	PAGE
CALIFORNIA AIR RESOURCES BOARD	10
THOMAS AUSTIN, Deputy Executive Officer, Technical
KINGSLEY MACOMBER, Chief Counsel
GARY RUBENSTEIN, Manager, Special Projects Section
SUZUKI MOTOR COMPANY
JOHN B. WALSH, Supervisor, Sound Level Research,
Safety and Legislation Department	43
KAWASAKI MOTORS CORPORATION	66
DENNIS DAVID, Manager of Legislative Section
DARRELL JOHNSON, Attorney with Paul, Hastings & Janofsky
of Los Angeles, California
MOTOR AND EQUIPMENT MANUFACTURERS ASSOCIATION	86
MARK R. JOELSON, Attorney with Arent, Fox, Kintner,
Plotkin & Kahn of Washington, D. C.
CALIFORNIA AUTOMOBILE DEALERS ASSOCIATION	105
STEPHEN F. SNOW, Executive Vice President of
Northern California Motor Car Dealers Association
FORD MOTOR COMPANY	113
EUGENE WEAVER, Emissions Planning Associate
HELEN PETRAUSKAS, Attorney
GENERAL MOTORS CORPORATION	152
EDWIN E. NELSON, Assistant Director of Automotive
Emission Control, Environmental Activities Staff
HAROLD SCHWOCHERT, Staff Engineer, Environmental
Activities Staff
RICHARD PETERSEN, Attorney, Legal Staff
AUTOMOTIVE SERVICE COUNCILS OF CALIFORNIA	193
DELBERT A. WRIGHT, President
SMYTHE & WILSON
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3A
IOEX (Cont'd)
ATTACHMENTS
Table 1 and Attachment 1 of CARB's Presentation
Tables 1, 2 and 3 of Suzuki Motor Company's Presentation
Pages 198-212 of Suzuki's Testimony at 16 May 1977 Hearing
Figures I-VI of General Motors Corporation's Presentation
	oOo	
SMYTHE & WILSON
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CHAIRMAN JACKSON: This is the United States
Environmental Protection Agency public hearing to consider a
number of requests by the State of California for a waiver
of federal preemption under Section 209(b) of the Clean Air
Act for a series of past actions taken by the California Air
Resources Board.
I am Ben Jackson, Director of the Mobile Source
Enforcement Division of the Environmental Protection Agency. I
have been designated as Presiding Officer for the hearing. My
colleagues who will assist me at various times conducting the
hearing are Mr. Charles Gray, Mr. Karl Hellman and Mr. Ron
Kruse of the Office of Mobile Source Air Pollution Control.
The panel will also be assisted by Mr. Daniel
Steinway and Mr. James McNab, III, who are attorney-advisors
with the Mobile Source Enforcement Division, and Ms. Joan
Urbine, who is responsible for maintaining the record and
scheduling witnesses.
The CARB has submitted the requests under considera-
tion to ths Administrator of the Environmental Protection Agency
in order to permit the State of California to enforce the
following provisions of its motor vehicle emission control
program:
1.	Amendments to Sections 2100 of Title 13 of
the California Administrative Code, pertaining to compliance
testing and inspection of 1978 and subsequent model year
motorcycles adopted on June 30, 1977.
2.	Restrictions on allowable maintenance applicable
to 1980 and subsequent model year gasoline-powered passenger
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cars and 1981 and subsequent model-year gasoline-powered
light-duty trucks and medium-duty vehicles adopted May 26,
1977.
3.	Amendments to the California exhaust emission
standards and test procedures for 1980 and subsequent model-
year passenger cars, light-duty trucks and medium-duty trucks,
pertaining to high altitude test requirements adopted on
June 8, 1977, and
4.	Amendments to the California exhaust emission
standards and test procedures for 1980 and subsequent model-
year passenger cars, light-duty trucks and medium-duty
vehicles, pertaining to the 1982 and subsequent model-year
standards and test procedures adopted on June 22, 1977.
Before continuing I would like to further clarify
Item No. 3. At the May 18, 1977, California waiver hearing
concerning California's exhaust emission standards and test
procedures for 1980 and subsequent model-year passenger cars,
light-duty trucks and medium-duty vehicles, several manu-
facturers had raised questions regarding the scope of the high
altitude requirement.
The CARB subsequently narrowed the applicability of
this requirement to include only carbon monoxide emissions.
We have included this item at the present hearing solely to
afford the opportunity for additional comment if an interested
party feels the new requirement as a measure of stringency to
the standards which was not considered at the prior hearing.
Thus, we request that comments on this item be limited to this
issue or to any associated technological or lead time problems.
S & WILSON
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For the record, the hearing is convened in the
Conference Room on the second floor of the Regional Office,
Region IX, of the U. S. Environmental Protection Agency, 100
California Street, San Francisco, California.
To complete the opening of the record and at the
same time to expedite the proceedings, I would like to insert
into the record as if read, the following documents:
1.	Two letters dated June 9, 1977, letters dated
July 6, 1977 and July 15, 1977, and a telegram dated June 30,
1977 from the CARB to the EPA notifying the EPA that California
had taken a series of actions to revise its motor vehicle
emissions control program and requesting a waiver of federal
preemption for those actions which in the Administrator's
judgment required such a waiver.
2.	The letters of July 7, 1977, and July 25, 1977,
from EPA to CARB, stating that a hearing would be convened to
address California's waiver requests, and
3.	The July 13, 1977 Federal Register notice of
this hearing.
In addition, the following will be made a part of the
record:
1.	Section 2100, Title 13, California Administra-
tive Code, and "California New Motorcycle Compliance Test
Procedures," adopted on June 30, 1977.
2.	Section 1960, Title 13, California Administrative
Code, and "California Exhaust Emissions Standards and Test
Procedures for 198 0 and Subsequent Model Passenger Cars, Light-
Duty Trucks, and Medium-Duty Vehicles," adopted November 23,
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1976, last amended June 22, 1977.
To assure that all parties are aware of the substance
of the correspondence mentioned earlier, I will briefly review
the issues addressed in those letters.
In the first CARB letter of June 9, 1977, from Mr.
Kingsley Macomber, Chief Counsel for the CARB, to Mr. Ben
Jackson, Director of the Mobile Source Enforcement Division of
the EPA, the CARB informed EPA of the high altitude test
requirement change discussed above.
The second June 9, 1977, letter from Mr. William H.
Lewis, Jr., Executive Officer of the CARB to Mr. Douglas
Costle, Administrator of the EPA, requested a waiver for the
restrictions on allowable maintenance adopted by the CARB on
May 26, 1977. The telegram dated June 30, 1977, informed EPA
of the CARB's adoption of compliance and inspection procedures
for 1978 and subsequent model-year motorcycles and constituted
a waiver request for these procedures. The telegram also
requested a waiver for two sets of NO standards applicable to
1982 and subsequent model-year passenger cars, light-duty
trucks and medium-duty vehicles adopted on June 22, 1977. One
set of NO standards is considerably more stringent than the
X
other optional set which includes a 100,000 mile durability
requirement. The July 6, 1977 and July 15, 1977, CARB
letters confirmed these last two requests.
The July 7, 1977, letter from Dr. Norman Shutler,
Deputy Assistant Administrator for Mobile Source and Noise
Enforcement, EPA, to Mr. William H. Lewis, Jr., Executive
Officer of the CARB, informed the CARB that the aforementioned
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actions required a waiver before California could effectuate
them, and that a public hearing would be convened to address
these requests. The July 25, 1977, EPA letter acknowledged
receipt of the July 6, 1977, CARB letter.
This hearing is intended to provide an opportunity
for interested persons to state their views or arguments and
present pertinent information relating to the determination to
be made by the Administrator with respect to these aforemen-
tioned waiver requests. However, the determination of the
Administrator regarding the action to be taken with respect to
the subjects under consideration is not required to be made
solely on the record of the public hearing.
Since the notice was inserted into the record and
not read, I will now summarize the procedures and ground rules
for the hearing.
The hearing is being held pursuant to Section 209(b)
of the Clean Air Act. It will be conducted in accordance with
the rules which have been in effect at prior hearings on
California waiver applications. The agenda for the hearing
has been previously outlined in the Federal Register notice
announcing this hearing.
Generally, the procedures will be informal. Formal
rules of evidence will not be in effect. The Presiding
Officer is authorized, however, to strike from the record
statements which he deems irrelevant or needlessly repetitious,
and to impose reasonable limits on the duration of the state-
ment of any witness. No cross-examination will be permitted.
However, to the extent that time allows, the Presiding
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Officer may permit brief questions of clarification from any
participant to any other participant. Questions of a more
exploratory nature may be submitted in writing to the Presiding
Officer through Ms. Urbine, and such questions at the discre-
tion of the Presiding Officer may be posed to any witness by
a member of the panel.
A verbatim record of the hearing is being made, and
the transcript will constitute the sole official record of this
hearing. A copy of the record will be on file for public
inspection by any interested persons at the EPA Public Informa-
tion Reference Unit, Room 2922, in Washington, D.C., and at the
Regional Office in San Francisco. Persons desiring copies of
the transcript should make arrangements with the reporter.
We have an order of appearance for those who have
indicated they wish to appear. Copies of the agenda and
witness list are available from Ms. Urbine. There may have
been additions to or deletions from the agenda since it was
printed. If it appears that the order is going to cause any
one or more of you a hardship, please contact Ms. Urbine, and
she will relay this to me. We will attempt to accommodate any
time problems anyone has.
We would also appreciate it if all witnesses would
confirm their positions on the schedule with Ms. Urbine.
The record will remain open until Friday, August 26,
1977, for the submission of any further information by any
interested persons.
The first witness of the day will be the representa-
tives of the California Air Resources Board.
SMYTHE ft WILSON
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MR. AUSTIN: Good morning. My name is Tom Austin,
Deputy Executive Officer for the California Air Resources
Board. With me today are Kingsley Macomber, the Board's
General Counsel, and Gary Rubenstein from the Vehicle
Emissions Control Division.
We are here today, to request a waiver from EPA of
Section 209(a) of the Clean Air Act in order to allow
California to implement more stringent emission standards and
test procedures.
The statement that I have prepared this morning
addresses those issues which we understand to be on the agenda
for today. It does not include any discussion of the lower
NO standards which were adopted for '81 and subsequent model-
year vehicles.
Would you like me to go through all of the issues on
the agenda for today in my opening statement, Mr. Jackson, or
would you prefer we handle these one at a time?
CHAIRMAN JACKSON: In order that we do not have to
keep having you come back today, why don't you go ahead and
handle all the issues in your statement that are on the agenda
for today.
MR. AUSTIN: Pine.
In considering California's reauest for a waiver of
federal preemption, the Administrator is allowed to consider
only three issues:
1.	Whether compelling and extraordinary conditions
continue to exist in California;
2.	Whether California's standards and test procedures!
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are more stringent than applicable federal standards;
3. Whether California's standards and test and
enforcement procedures are consistent with Section 202(a) of
the Clean Air Act, in particular with respect to their tech-
nological feasibility within the remaining lead time, con-
sidering the cost of compliance.
The first item has been dealt with many times at
previous waiver hearings; however, to emphasize its importance,
I will make a few remarks about it before going on to the
other specific items listed in the hearing notice.
California's compelling and extraordinary need for
more stringent emission controls has never been disputed by
the Administrator. At the present time, California violates
every automobile related Federal Ambient Air Quality Standard.
In fact, California's oxidant level recently exceeded the
Federal Ambient Standard by over 4 00 percent, and nitrogen
dioxide levels in the South Coast Air Basin have recently
exceeded the California Ambient NC^ Standard by over 100 per-
cent. Both hydrocarbons and oxides of nitrogen contribute to
California's oxidant problem.
An ARB staff report, dated January 25, 1977, more
thoroughly explains why we believe further control of NO
emissions is vital to reducing the highest levels of oxidant
currently experienced in California. We will supply a copy of
this staff report for the record of this hearing.
Developing strategies to reduce peak oxidant levels
is critical to reducing the adverse health effects of oxidant.
NO2 also constitutes a health hazard by itself, in addition to
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exacerbating the visibility problem in the Los Angeles area
and contributing to violations of air quality standards for
particulate matter. ARB therefore believes that all measures
which are economically and technically feasible and which will
result in lower oxidant and NC>2 levels should be pursued.
In order to achieve further controls as stringent
as are practicable at the present time, the Board has recently
adopted or modified several standards and test procedures
which we have asked be considered at this hearing. These items
are:
1.	Exhaust emission standards and test procedures
for 1978 and subsequent model-year motorcycles.
2.	Regulations which extend allowable periods
between maintenance and adjustments in new vehicle certifica-
tion.
3.	High altitude test requirements for 1980 and
subsequent model-year passenger cars, light-duty trucks, and
medium-duty vehicles.
4.	Oxides of nitrogen standards for 1980 and
subsequent passenger cars, light-duty trucks, and medium-duty
vehicles.
The above regulations should result in further South
Coast Air Basin reductions bv 1990 of approximately four tons
per day hydrocarbons, 73 tons per day carbon monoxide, and
135 tons per day oxides of nitrogen.
Despite these reductions, state and federal ambient
air quality standards for oxidant and N02 are still projected
to be exceeded in the South Coast Air Basin in 1990. In fact,
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these standards would be exceeded even if all motor vehicle
emissions could be eliminated, due to projected growth in the
Basin and because of the increased use of fuel oils to replace
natural gas in power plants.
Finally, we remind EPA that the South Coast Air Basin
has experienced 130 days of oxidant emergency episodes
annually. Ten of these were at the second stage level.
Vehicular emissions of hvdrocarbon and oxidant are major con-
tributors to these episodes.
We believe that the Administrator must conclude, as
he has in the past, that compelling and extraordinary condi-
tions continue to exist in California that warrant more
stringent motor vehicle emission controls.
On the subject of motorcycle standards and test
procedures, in our letter to you of November 1, 1976, we stated
our position that since California's exhaust emission standards
and certification test procedures for 1978 through 1981 model-
year motorcycles were similar to those adopted by EPA, -we
would not require manufacturers to obtain a separate California
approval prior to sale in California. We also indicated that
we intend to enforce the federal and California emission
standards pursuant to Section 43008 of the California Health
and Safety Code.
At the waiver hearings conducted by EPA last May, we
requested that consideration of our waiver request regarding
motorcycle exhaust emission stnadards and test procedures be
deferred until the ABB had completed action on its compliance
test procedures for motorcycles. This request was made so
SMYTHE A WILSON
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that we could present to EPA California's complete motorcycle
exhaust emission control program, including applicable
enforcement procedures.
As we indicated in our letter of July 1997, and
the previous mailgram, the ARB has recently adopted the
"California New Motorcycle Compliance Test Procedures," dated
June 30, 1977 (Resolution 77-33, Staff Report 77-15-4).
Therefore, we are here today to seek a waiver of
Section 209(a) of the Clean Air Act for the following changes
to the ARB's regulations regarding motorcycle exhaust emission
standards and test procedures:
1.	The adoption of EPA's exhaust emission test
procedures for 1978 through 1981 model-year motorcycles
manufactured for sale in California.
2.	The adoption of EPA's exhaust hydrocarbon
emission standards for 1978-79 and 1980 and subsequent model-
year motorcycles, as applied to 1978-79 and 1980-81 model-year
motorcycles, respectively, manufactured for sale in
California.
3.	The adoption of provisions which exempt motor-
cycle manufacturers from California certification requirements
for 1978 through 1981 model years so long as EPA's standards
and test procedures remain in effect and provided the manu-
facturers comply with certain documentation requirements.
4.	The adoption of the "California New Motorcycle
Compliance Test Procedures," which the ARB intends to use to
enforce the above standards.
The changes to ARB's exhaust emissions standards and
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certification test procedures were made in order to accommo-
date the requests of motorcycle manufacturers that, if
California continued to have a motorcycle certification
program, our standards and test procedures be as consistent as
possible with those adopted by EPA. The ARB's actions have
ensured that, barring successful legal action which invalidates
EPA's motorcycle regulations, motorcycle manufacturers will
not be required to perform any separate or different certifi-
cation tests to satisfy California's requirements beyond what
is required by EPA. The only requirement we have for 1978-81
model-year motorcycles is that large-volume manufacturers
must submit to ARB portions of their federal applications for
certification prior to the start of sales in California. This
information will be used by ARB to enforce the federal and
California motorcycle emission standards.
The only questions we believe to be subject to dis-
cussion regarding motorcycles at this hearing are:
1.	Is California's motorcycle control program more
stringent than the current federal program?
2.	Do the changes to California's certification test
procedures affect the Administrator's October 1, 1976,
decision regarding the technological feasibility of our one
gram per kilometer hydrocarbon standard for 1982 and subse-
quent model years?
3.	Are California's motorcycle compliance test
procedures technologically feasible within the lead time
remaining?
With respect to the first question, in previous
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waiver decisions, the Administrator has stated the relative
stringency requirement for a waiver is satisfied if
California's regulations result in a reduction in emissions
beyond that which would be obtained under existing federal
regulations. The 1982 hydrocarbon standard of one gram per
kilometer is clearly more stringent than the most stringent
federal hydrocarbon standard of five grams per kilometer.
Furthermore, we do not believe that any motorcycle manu-
facturer can seriously contend that the ARB's compliance test
procedures will not result in some reduction in emissions
beyond that which would be obtained under existing federal
regulations. In order to make such a contention, a manu-
facturer would have to assume that all of its production for
California during the 1978 through 1981 model years will be
fully in compliance with all applicable California emissions
regulations. Based on both ARB's and EPA's experience with
other motor vehicles subject to emission controls, we do not
find such a contention possible. Consequently we believe
the Administrator must conclude that the motorcycle regula-
tions under discussion today are, in fact, more stringent
than existing federal requirements, and that a waiver cannot
be denied on these grounds.
On the second question, it is our opinion that the
Administrator can only reconsider his waiver allowing
California to implement the one gram per kilometer standard in
1982 if he finds that the change from the original California
test procedure to the new federal test procedure impinges on
lead time or technological feasibility.
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The current California certification test procedures
differ from those considered by the Administrator in his
October 1, 1976, waiver decision in the definition of useful
life, test vehicle requirements, provisions concerning
adjustability, and minor test procedure changes. The dif-
ferences between the useful life defintions in the two pro-
cedures are differences in language, and have no effect on the
period of time manufacturers are subject to the emissions
control warranty. The changes to the test vehicle require-
ments were adooted bv EPA, and by California, with the intent
of reducing the lead time associated with certification, and
consequentlv should improve the manufacturers' abilities to
meet the one gram per kilometer standard.
EPA's provisions concerning the adjustability of
emissions-related motorcycle components should not have any
impact on technological feasibility, since these provisions
relate primarily to adjustment technology, and are quite
independent of the basic emissions control system.
In addition, since most manufacturers' efforts
toward achieving the one gram per kilometer standard are in
the research and development stage at this time, the minor
technical differences between the original and current
California test procedures should have no discernible effect
on the manufacturers' abilities to meet the one gram per
kilometer standard.
The remaining question subject to discussion
regarding motorcycles is whether California's compliance
test procedures are technologically feasible within the lead
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time remaining. ARB's compliance test procedures are based
on the compliance test procedures used for passenger cars,
light-duty trucks and medium-duty vehicles, and do not require
any testing to be performed by the vehicle manufacturers.
Manufacturers have great flexibility in deciding what
they need to do to ensure that their vehicles will comply with
the emissions standards if selected by ARB for compliance
testing. Many manufacturers may choose to do nothing at all
to their vehicles, unless or until the ARB detects a violation
during its compliance testing. For these manufacturers,
there is no lead time associated with the compliance test
procedures, and there can be no finding of technological
infeasibility. For other manufacturers who choose to imple-
ment additional quality control measures, there is no require-
ment that they implement such measures by any particular
Doint in time, if at all. Finallv. we contend that crualitv
control efforts do not, strictly speaking, even bear on the
question of feasibility.
For all these reasons, we do not believe that the
Administrator can find the ARB's new vehicle compliance test
procedures technologically infeasible within the lead time
remaining, and consequently we do not believe he can deny
California's waiver request. In conclusion, we believe that
the Administrator cannot make the findings required to deny
California's request for waivers for the motorcycle regula-
tions being discussed today.
MR. RUBENSTEIN: Before we continue, I would like to
point out in our statement on Page 4 where we discussed the
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regulation changes that are subject to discussion at the
hearing today, —
I would like to clarify that Item No. 1, the adoption
of EPA's exhaust emission test procedures — California has
adopted those test procedures for 1978 and subsequent model-
year motorcycles, not for 1.978 through '81. That is referring
just to the test procedures now.
MR. AUSTIN: Moving on to allowable maintenance
regulations.
It has become evident that vehicles in customer use
exhibit emissions performance significantly worse than the
same vehicles during certification. Studies by the ARB staff
and others have shown that a major reason for this poor per-
formance is the lack of proper maintenance on in-use vehicles.
Even when vehicle owners bring their cars in for maintenance
at proper intervals, the service is often performed incor-
rectly by the service industry.
Two surveys, one conducted by ARB and one by EPA,
revealed that most vehicle owners do not properly follow the
manufacturers' maintenance schedules, even if they claim to.
Although 80 percent of the drivers questioned by EPA claimed
to follow the owner's handbook instructions closely, 48 percent
said that they judged the need for a tune-up by vehicle
performance, not by mileage or time as manufacturers recommend.
Maintenance habits of Californians were also found
to differ from those of drivers elsewhere in the nation; in
fact, drivers in Los Angeles were less likely to maintain
their cars on the basis of time or mileage than drivers
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elsewhere. Since waiting for driveability problems to occur
before performing required maintenance will result in a much
greater deterioration of the vehicle's emissions performance,
the above studies indicate that maintenance regulations may
need to be more stringent for Californians than for 4 9-state
drivers in order to achieve a comparable degree of emissions
control.
At its meeting last May, the ARB adopted regulations
restricting allowable maintenance in order to make the certi-
fication program more accurately reflect owner maintenance
habits, to improve the in-use durability of emissions-related
components, and to reduce the frequency of tampering and
improper maintenance by reducing the number of trips owners
have to make to service stations for tune-ups.
The regulations adopted by ARB allow "break-in"
maintenance to be performed on the idle speed, valve lash, and
engine bolt torque provided the manufacturer demonstrates it
will, in fact, be performed in actual use. Maintenance of
the spark plugs, air filter, oxygen sensor, choke, and drive
belts is restricted to 30,000-mile intervals, and valve lash
can be adjusted no more frequently than once every 15,000
miles. No other emission-related maintenance may be scheduled
during certification.
The ARB's regulations require that the maintenance
instructions given to owners by the vehicle manufacturers be
consistent with the maintenance peformed during certification.
The Executive Officer is given the authority to allow manu-
facturers to recommend to consumers more frequent maintenance
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of safety-related components or for vehicles in severe
use. These regulations apply only to gasoline-powered
passenger cars, light-duty trucks, and medium-duty vehicles.
Diesel-powered vehicles were specifically excluded from the
regulations because the ARB has not found that diesels
experience the same kinds of in-use emissions problems as
gasoline-powered vehicles.
In considering ARB's waiver request, we believe EPA
can consider only whether the restrictions in allowable main-
tenance are more stringent than existing federal requirements,
and whether the regulations are technologically feasible within
the lead time remaining.
As we have discussed in our earlier statement
regarding motorcycles, the relative stringency requirement for
a waiver is satisfied if the ARB regulations provide a reduc-
tion in emissions beyond that which would be achieved by
existing federal regulations.
The ARB's maintenance regulations are obviously more
stringent than EPA's, which limit major tune-ups to once
every 12,500 miles. These tune-ups include service of the
ignition system, cold-start enrichment system, curb idle speed
and air-fuel mixture, drive belt tension, valve lash, inlet
air and exhaust gas control system, and fuel evaporative
emission control system. ARB's regulations more than double
the minimum maintenance period for most of these components,
and abolish maintenance and adjustment provisions for the
ignition system and the air-fuel mixture.
It is difficult to estimate exactly how large the
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emissions benefit of the allowable maintenance regulations
alone will be, due to the combined effects with the ARB's
tampering regulations and with the Mandatory Vehicle Inspection
Program, MVIP. Although the MVIP will not reduce in-use
vehicle emissions to certification levels, it will cause more
vehicle owners to get their cars repaired when they fail. Con-
trary to claims made by some vehicle manufacturers, the MVIP
will not make vehicle owners more likely to follow the manu-
facturers' recommended maintenance schedules. If owners
change their maintenance habits at all, they will probably get
their cars tuned prior to the MVIP inspection, regardless of
mileage, or will delay getting a tune-up unless or until they
fail the MVIP inspection, also regardless of mileage.
The allowable maintenance regulations are not
expected to make vehicles totally maintenance-free in customer
use; however, they will reduce the frequency of component
failure due to lack of maintenance, and will reduce the chance
of tampering and improper maintenance by reducing the amount
of maintenance required.
The emissions reductions we expect will be possible
due to the allowable maintenance regulations which are
detailed in ARB Staff Report 77-12-1. Our best estimates at
the present time are that these regulations will reduce
hydrocarbon emissions by four tons per day, carbon monoxide
emissions by 73 tons per day, and oxides of nitrogen emissions
by three tons per day in the South Coast Air Basin in 1990.
These estimates are probably low due to the fact
that they represent only the emission benefits obtained during
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the first 30,000 miles of vehicle life, while the MVIP is
credited with the reductions beyond the first 30,000 miles. In
fact, there will be much overlap between the two programs,
making it extremely difficult to distinguish the emissions
benefits associated with each other. It is clear, however,
that the ARB's allowable maintenance regulations will provide
a reduction in emissions beyond that which could be expected
under current federal regulations, and consequently we believe
our maintenance regulations satisfy the relative stringency
requirements for a waiver.
On the subject of technological feasibility, all
manufacturers who responded to an ARB questionnaire earlier
this year indicated that significant improvement could be made
to reduce the need for maintenance on many components. Based
on manufacturers' response, which are summarized in Table 1,
attached to this statement, the ARB has concluded that the
technology will exist by 1980 to eliminate most emissions
related maintenance for 50,000 miles of normal customer use,
and to greatly reduce the need for maintenance of many other
emissions-related components. The final regulations adopted
by the ARB in this area were relaxed from the staff's original
proposal in response to industry concerns.
Although Ford may not agree with the ARB's decision
to implement these regulations, and may argue against our
authority to do so, they stated at a public hearing and in
workshop sessions that there is a high probability that they
would be able to comply with the ARB's allowable maintenance
restrictions in 1980. As indicated in Table 1, many
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manufacturers have already achieved maintenance intervals
which will satisfy the Board's regulations for many components.
Therefore we believe that many of today's arguments regarding
technological feasibility will focus on specific problems of
individual manufacturers to meet the proposed regulations,
rather than on an industry-wide lack of available technology
to meet the requirements.
It appears to be the contention of some manu-
facturers that the presence of technology within a few
companies to meet the maintenance regulations cannot be
extrapolated to predict industry performance at some future
time. If this argument were correct, it would mean that ARB
and EPA would have to find that every company had technology
sufficient to meet a particular regulation before that regula-
tion was adopted. We believe this would not only be an
unreasonable burden of proof, but it would also be unnecessary
given the similarity of the vehicles produced by the various
manufacturers. In recent decisions regarding both motorcvcles
and heavy-duty vehicles, the Administrator found that a waiver
could not be denied, even though the technology required to
meet the subject California regulations was not already
available, because there was sufficient lead time to permit
the development of the necessary technology. The situation
regarding the ARB's allowable maintenance regulations is that
the required technology has already been developed and is
available in the automotive industry for many components, as
indicated by the manufacturers' comments summarized in Table 1.
With the possible exception of idle speed adjustments, heat
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riser valve lubrication, and oxygen sensor replacements,
Table 1 indicates that the technology is available and in
production today which will allow manufacturers to comply with
ARB's maintenance regulations and to meet the basic market
demand.
The only question remaining is whether there is
sufficient lead time to permit the application of this
technology by enough vehicle manufacturers to permit basic
market demand to be met in California by 1980. We do not
believe that the ARB's regulations will require major retooling
changes to improve system durability. The longest lead
times will probably be experienced by those manufacturers who
will need to change from breakerpoint to breakerless ignition
systems. Major tooling changes normally require 30 months'
lead time from design finalization to start of production.
However, most manufacturers who do not yet use breakerless
systems have previously considered using them. Furthermore,
the development of these systems is such that they are virtually
"off-the-shelf" items for most vehicles. Consequently, the
lead time associated with this change, which is probably the
longest lead time for any component changes required to meet
ARB's requirements, should be less than the normal 3.0
months, and, in fact, should be less than the 26 months
between the date the regulations were adopted by the ARB and
the start of the 1980 model production.
Changes needed to minimize the maintenance require-
ments for other components should reauire even shorter lead
times than the change to breakerless ignition svstems.
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Modifications such as the addition of a coatinq or dust seal
to the choke linkaqe to prevent bindinq, or changes to a PCV
valve to minimize deposit build-ups do not require significant
tooling changes and should be possible by the 1980 model year.
Manufacturers have contended that the Board does not
have the authority to impose limitations on allowable main-
tenance under California law. We concur with the Administra-
tor's earlier decision that he has no jurisdiction to settle
questions of ARB authority under state law, and do not ask
for such a determination now. Nevertheless, for the record,
we have a few brief legal points to outline.
Although the California Health and Safety Code does
not specifically address the subject of maintenance, the Board
is given the authority therein to take two kinds of actions
which can logically encompass the imposition of restrictions
on maintenance: the authority to adopt and implement emissions
standards which are necessary and technologically feasible,
and the authority to adopt certification test procedures.
In the California Supreme Court decision of WOGA vs.
Orange County APCD, E.R.C. 2121 (May 28, 1975), the Court
found that ARB had the authority to regulate the lead content
of gasoline although the Health and Safety Code did not
specifically address that subject. Part of the Court's
decision bears repeating here:
"There is no express restriction in the statutes as
to the manner in which the implementation of standards
may be accomplished, and we would be unjustified in
implying a restriction to mechanical means in the light
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of the purposes of the act and the state of technology
relating to the control of lead contaminants."
We believe, in the case of allowable maintenance,
that the Board is merely exercising this broad discretion as a
means of defining its emission standards, subject only to the
limitations of necessity and technological feasibility, which
we believe have been satisfied.
The Board is also given the authority to specify the
test procedures for new vehicle certification. According to
Section 43101, the Board may decide which factors are material
in the adoption of its certification test procedures. The
only express limitation is that the test procedures either must
be based on federal test procedures or on typical California
urban driving patterns.
California test procedures must not necessarily
duplicate federal test procedures, but must only be based upon
them. Federal test procedures restrict scheduled major tune-
ups to no more frequently than every 12,500 miles. Since the
Board's regulations impose additional restrictions on main-
tenance, any vehicle which meets California's requirements will
meet federal requirements. No duplicate testing would result.
Accordingly, we see no inconsistency between California and
federal law. Indeed, federal law sets the precedent for
limiting maintenance during vehicle certification and for using
these limits to define in-use vehicle maintenance.
The Board may also base its test procedures on
typical California driving patterns. Since the maintenance
regulations are based on typical maintenance habits of
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California drivers, we believe that these regulations add to
the accuracy of the test procedures in simulating actual
driving patterns in customer use.
Moreover, we believe that these regulations preserve
the central legislative intent of the California motor vehicle
pollution control program that production and in-use vehicles
must perform comparably with the certification test vehicles.
If properly tuned and maintained in-use vehicles do not conform
with the applicable new vehicle standards, then certification
becomes a pointless exercise. If in-use vehicles are, indeed,
"in all material respects, substantially the same in construc-
tion as the test motor vehicle or engine" as Section 43106
requires, then the quality and durability of all components
should be equal. Therefore, maintenance requirements for
both certification and in-use vehicles must be the same if the
original purpose of certification durability testing is to be
preserved. The only allowable differences between certifica-
tion and recommended in-use vehicle maintenance are that addi-
tional maintenance may be recommended for severe operating
conditions, and checks may be permitted for safety related
components, such as drive belts, that would tend to wear over
time and mileage rather than over mileage alone.
Finally, we expect the manufacturers to argue that
the ARB is "preempted" by certain provisions of the Clean Air
Act. While we do not concede that argument, we would merely
point out that we are here today asking for a waiver of that
"preemption," which should dismiss the argument, if granted.
Of course, if EPA has no authority to act in this area, as the
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manufacturers seem to contend, we seriously question whether
there is any preemption in the first case, particularly in
light of Section 116 of the Clean Air Act.
For the reasons stated above, we believe that the
Board's authority to implement more stringent emission
standards and test procedures, provided they are necessary,
technologically feasible within the lead time remaining, and
will not result in duplicate testing, clearly permits the
implementation of its regulations on allowable maintenance.
Although cost is not really an issue here, we
believe that these regulations are extremely cost/effective,
and will result in little or no increased cost to the manu-
facturer because no major retooling is required. Based on the
limited information given to us by vehicle manufacturers, we
estimate the added cost per vehicle to be no more than $10
to $15. On the average, the consumer will actually save about
$55 in maintenance costs over the vehicle's first 50,000
miles, so the regulations should result in a net cost benefit
for the vehicle owner.
In conclusion, since the Board's allowable main-
tenance regulations are more stringent than EPA's existing
maintenance regulations and are technologically feasible
within the lead time remaining, we believe that the Adminis-
trator must grant us a waiver.
On the question of high-altitude test requirements.
On June 8, 1977, the ARB amended its test procedures
applicable to 1980 and later model-year passenger cars, light-
duty trucks, and medium-duty vehicles to clarify the provisions
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regarding emissions control at high altitudes. In particular,
the ARB adopted new language to clarify that the high-altitude
provisions applied only to air-fuel metering systems and
secondary air-injection systems. The original language,
which had been waived by EPA, was not limited to any type of
emissions-related systems, and included both air-fuel metering
systems and secondary air-injection systems.
The second change made to the regulation was the
addition of language to clarify that no testing would be
required at altitude to demonstrate compliance with the
Board Is regulations. An example of a method in which a manu-
facturer can demonstrate compliance with ARB's high-altitude
regulations is shown in Attachment I.
This procedure, which was proposed by Ford, allows
the manufacturer to fulfill the high-altitude requirements
using bench test data to simulate the performance of air-fuel
metering systems and secondary air-injection systems at
altitude. If the bench tests show that the air-fuel metering
system produces substantially the same flow curve at 6,000
feet altitude that it produces at sea level, and/or if the
secondary air-injection system, if one is used, can provide
excess oxygen at the tailpipe at 6,000 feet altitude, the
systems fulfill ARB's requirements.
Frankly, we are not sure why this test procedure
change is subject to consideration at this waiver hearing
since the language previously waived by EPA was more stringent
in that it applied to more emissions-related components. The
other changes to the language were made to clarify the Board's
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position that engineering analyses and bench test data would
be sufficient to demonstrate compliance with the regulation.
We are not aware of any problems regarding lead time
or technological feasibility regarding the regulation change
under discussion today, nor are we aware of any other arguments
regarding the requirements for a waiver. Under the circum-
stances/ we believe that the Administrator must grant our
waiver request to amend the language in our test procedures
regarding emissions compliance at altitude.
Thank you. We would be happy to try to answer any
questions you may have regarding our statement.
MR. RUBENSTEIN: I would like to see if we couldn't
clarify one point in our statement.
On Page 12, the very last line, there is a reference
to Table 1, which should read Table 2. And on Page 13, towards
the bottom, there are also two references to Table 1, both of
which should read Table 2.
Table 2 is a list or summary of current recommended
maintenance intervals by vehicle manufacturers, whereas
Table 1 is a summary of their comments on potential recommended
maintenance intervals. Table 2 is omitted from our statement.
We will have sufficient copies available this afternoon.
MR. AUSTIN: It is already in the record, though,
right?
MR. RUBENSTEIN: Right. It is already in the
record. It was included as Table 5 in the Board's May 26
Staff Report on Allowable Maintenance.
CHAIRMAN JACKSON: You also promised another report
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when you were reading on Page 2 of your statement. Is that —
MR. RUBENSTEIN: Right, the January 25th Report on
NO Emissions,
x
MR. AUSTIN: That is the report which EPA already
has copies of, but we will provide additional ones for this
record.
CHAIRMAN JACKSON: I would appreciate that.
MR. GRAY: What is the effective date for the
allowable maintenance restrictions on light-duty trucks and
medium-duty vehicles? There seems to be some confusion in
your original request for the waiver.
The way I understood the regulations, they apply
in 1980. The waiver request said 1981, and EPA picks
up the wording in the waiver request letter. It appeared in
the announcement of the hearing and in Mr. Jackson's opening
statement.
MR. AUSTIN: The intent is to have the new require-
ments on allowable maintenance become effective with the new
emissions standards for the vehicles in each category. So, in
the case of the trucks, that would be 1981 they become
effective, not 1980.
MR. RUBENSTEIN: The Board's test procedure is
correct in that respect, and it does apply those maintenance
requirements only to light-duty trucks only in 1981, not 1980.
MR. GRAY: Has the CARB performed any other studies
of technological feasibility other than the compilation or
summary of the comments from the manufacturers on the
questionnaires submitted to them? That is for allowable
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maintenance.
MR. AUSTIN: The last anlysis prepared by ARB on
that issue is the analysis that appears in the staff report
that went to the Board, which has been included in the record,
the staff report that went to the Board the date that the
regulations were adopted.
MR. KRUSE: Excuse me. From which this table in
your statement came?
MR. AUSTIN: Yes. The table was a part of the
staff report which I was referring to.
MR. GRAY: I think you made the statement in your
prepared statement that the ARB has concluded that technology
will exist by 1980 to eliminate most emissions-related main-
tenance for 50,000 miles of normal customer use.
What analyses have you conducted to investigate the
potential problems of the need for maintenance in situations
other than "normal," more severe, in particular, of course,
customer use?
MR. AUSTIN: At the meeting of the Board when the
regulations were adopted, there were comments by several
manufacturers to the effect that they believe that certain
owners would operate their vehicles under extreme conditions
of one type or another from time to time, and that those condi-
tions would require additional maintenance. We agreed to
give the executive officer the authority to provide for addi-
tional maintenance on a case-by-case basis whenever a manu-
facturer can demonstrate that, in fact, there is a need for
additional maintenance when his vehicles are operated under
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what he would define and we would agree would constitute
severe conditions.
The examples that were discussed included people who
live in desert environments where the vehicles are subject to
significantly higher levels of dust in the air, that would
require more frequent replacement of air filters than would
normally be expected in urban environments.
MR. RUBENSTEIN: I think we can address your ques-
tion if I read a portion of Paraqraph 3(q) of our test pro-
cedure for 1930 and later model years, where it states that,
"Such instructions" — referring to manufacturers' instruc-
tions to consumers — "Such instructions shall be consistent
with and not require maintenance in excess of the restrictions
imposed under Section 86.878-25(a)(1) except that the
instructions may, subject to approval by the Administrator,
require additional maintenance for vehicles operated under
extreme conditions."
MR. GRAY: The example Mr. Austin gave, would all
of California comply with that? How can you distinguish what
"severe" service situations would exist? The example you
gave of a dry situation, might be dusty in particular, how
can you distinguish whether or not a manufacturer can comply
for these special provisions?
MR. AUSTIN: We are letting the manufacturer des-
cribe the conditions to the owner in the owner manual. And
if we agree that the conditions described do, in fact,
represent severe conditions, conditions that would not normally
be expected by most owners, then there will be the approval of
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the additional maintenance that the manufacturer is seeking.
MR. GRAY: Do you think it is likely that there will
be sections in all of, or a large part of the owners' manuals
that say for these particular abnormal situations, here is the
recommended maintenance schedule, which may be very similar to
the current recommended maintenance schedules?
MR. RUBENSTEIN: Most owners' manuals already have
that section.
MR. KRUSE: Yes, but they do not specify the con-
ditions. They just say "more severe conditions."
MR. AUSTIN: We will require some description of the
nature of these severe conditions. If it is going to be
air filters that the manufacturer wants to be maintained more
frequently, then the owner's manual will have to talk about
exposure of the vehicle to dusty conditions. It will require
some definition of the conditions that the manufacturer
believes is going to require additional maintenance. It
cannot be to some general statement that under severe condi-
tions we do all sorts of things. It will have to describe
those conditions in a manner that we think the customers will
be able to understand.
And it won't be by geographic area. That was part
of your question earlier.
MR. GRAY: Right.
The question was, how could you distinguish —
But I think I understand now, that you would say when a
vehicle is operated under these conditions, and those condi-
tions would be agreed upon by the ARB to be sufficient.
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MR. AUSTIN: Right.
MR. GRAY:• Are you aware of any other technology
other than breakerless ignition systems that would satisfy
the requirement for no allowable maintenance for the ignition
system?
MR. AUSTIN: Although we did not go into it in
great detail, I believe that people within EPA would probably
conclude, as we would, that certain breaker-type ignition .
systems could comply with the requirements if the breakerpoints
were used for switching and didn't carry a lot of current, as
more typical breaker-type ignition systems do. I would
think some kind of hybrid-type system that uses breakerpoints
but does not run as much current through them as conventional
breakerpoint systems would probably also comply with the
requirements.
The breakerpoint system would work so long as the
points didn't burn as rapidly and did not erode as rapidly as
they do on conventional systems. And that can certainly be
accomplished without eliminating breakerpoints. It could
probably be accomplished on most vehicles by adding an after-
market-type system which reduces the current through the
points.
MR. KRUSE: I have a question on Page 9 of your
statement. You are discussing a vehicle owner's maintenance
habits, and you say that approximately half of the owners
judge the need for a tune-up by vehicle performance, and that
such maintenance then will result in greater deterioration of
vehicle emissions performance.
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I was wondering what information you have that
leads you to that conclusion, that strong statement that it
will cause emission-related problems?
MR. AUSTIN: Well, I guess in putting this together
we assumed that for a number of different conditions it would
be fairly obvious.
Typical driver-observed problems with the per-
formance of the vehicle would include misfire. EPA and the
ARB both have a lot of data suggesting that vehicles which
have misfire conditions emit substantially higher levels of
hydrocarbon emissions.
Another condition which is frequently noted by
drivers has to do with black smoke in the exhaust due to
problems with the choke mechanism not opening soon enough or
not opening at all.
Those types of problems that frequently result in
driveability complaints quite often are directly related to
combustion problems which test data has shown causes sub-
stantial increases in both hydrocarbon and CO emissions.
MR. KRUSE: Do you have a feel for the relationship
between the time the driver perceives these failures and the
amount of emission problem you would expect to occur? In
other words, are these drivers insensitive to these kinds of
things, and the vehicles are really in bad shape when it
happens, or are the drivers perceptive and see these things
early?
What is your experience?
MR. AUSTIN: That is something that is obviously
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going to be different for different drivers. Some would
notice an intermittent misfire condition and start thinking
about scheduling a tune-up for the car. In that situation,
there is going to be very high hydrocarbon emission levels
for whatever period of time lapses between the onset of the
problem and when the vehicle finally goes in for maintenance.
Other owners will live with some driveability
problems, some small driveability problem that may continue
to cause an emissions problem for an extremely long period of
time. This is something that is going to be highly driver,
highly owner related.
MR. KRUSE: Did the data that you investigated in
your May 2 6th report deal with the relationship between normal
maintenance schedule time and the time at which the driver
perceived these maintenance problems and then performed the
maintenance? Is there some standard difference that you can
identify?
MR. AUSTIN: I do not think we specifically addressed
that issue in the report.
One of the things that is referenced in the staff
report that relates to the questions you are asking involves
the data which we took from a cross-section of vehicles that
were procured from the general public. We found that on a
number of those vehicles there were violations of the
emissions standards that the vehicles were designed to meet
that we traced to problems associated with components that
require routine maintenance. That gave us a very clear indi-
cation that our opinion on how owners will tolerate certain
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maintenance problems, in fact, is occurring, and that a number
of vehicles were delivered to us that had ignition problems,
other problems that in some cases were causing poor drive-
ability, that the vehicles were still in customer service and
were, in fact, gross emitters.
MR. KHUSE: Did you pursue these problem areas to
determine how far from the recommended maintenance interval
they had gotten at the time you conducted the study?
MR. AUSTIN: No, that was not specifically done.
The data that is available would allow that kind of determina-
tion to be made, I believe, but that was not specifically part
of the analysis.
MR. KRUSE: On Page 10 you say you will allow the
manufacturer to demonstrate how he will comply with the
requirements for early adjustment, break-in adjustment of the
vehicle. I was wondering if you can give us some examples of
what kind of demonstration you would expect to see?
MR. AUSTIN: For example, if the manufacturer has
historically recommended this type of maintenance and has
records to show that by virtue of the fact that he has offered
certain incentives to the owners such as reduced cost or
anything else, that he has, in fact, had most of those
vehicles coming back from customer service for this special
break-in maintenance, we would be willing to assume that that
trend will continue and that that manufacturer can expect to
be the owners of vehicles yet to be certified and sold coming
back for their break-in maintenance.
MR. KRUSE: Suppose he has no record of this type.
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What other type of demonstration would you require?
MR. AUSTIN: In that case we would be willing to
look for similarities between what the manufacturer was pro-
posing to do and what other manufacturers who had demonstrated
a high return rate of vehicles for break-in maintenance had
used in the past.
MR. KRUSE: On Page 11 you discuss the interrelation-
ship between your mandatory vehicle inspection program and
your maintenance requirements. How frequently is the inspec-
tion required? Once a year, once every six months?
MR. AUSTIN: That is going to depend on where we are
in the program. Initially the program is designed to start
out by requiring a vehicle to go through the inspection and
maintenance program on change of ownership only. For some
vehicles that will mean it goes through the inspection more
than once in a given year. On the average, though, it will be
every three years or so that a vehicle goes through the program.
It is our plan to phase in an annual inspection
program if we determine through the initial program that the
annual program will be feasible and will be cost-effective.
MR. KRUSE: So, for the immediate future, you would
expect the vehicles to go through this warranty period before
you would ever reach a point where you would perform your
mandatory vehicle inspection?
MR. AUSTIN: No.
MR. RUBENSTEIN: That is not quite right. The
vehicle inspection program as it is set up now requires
vehicles to be inspected not only on change of ownership but
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also they would be subject to a random roadside inspection by
the highway patrol.
The two programs combined are intended to check up
to 40 percent of the cars each year, which means on an average
there would be an inspection once every two and a half years.
The highway patrol program will be catching vehicles
both that are relatively new and relatively old in proportion
that they are out in the street driving. So you wouldn't
necessarily expect that a vehicle would go through its entire
warranty period before being inspected. Some will, most will
not.
CHAIRMAN JACKSON: Mr. Austin, a point of clarifica-
tion with regard to your statement on motorcycles.
You say on Page 5 that "The ARB's actions have
ensured that, barring successful legal action which invalidates
EPA's motorcycle regulations, motorcycles manufacturers will
not be required to perform any separate or different certifica-
tion tests to satisfy California's requirements beyond what is
required by EPA."
What happens if there is successful legal action?
MR. AUSTIN: I guess, strictly speaking, that
sentence could have eliminated the references "successful
legal action," because in this case there still would not be
any conflict with EPA regulations, would there?
CHAIRMAN JACKSON: That is kind of what I thought.
Further, you say "The only requirement we have for
1978-81 model-year motorcycles is that large-volume manu-
facturers must submit to ARB portions of their federal
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applications for certification prior to the start of sales in
California."
However, in reading your summary of the proposed
action in your staff report, I was under the impression that
the program was applicable to all manufacturers and required
those that did not have to certify to EPA to submit to the
ARB certain information about their product line. Is that
incorrect?
MR. RUBENSTEIN: I believe the manufacturer doesn't
have to certify with EPA, only have to submit that documenta-
tion to ARB on request if we intended to subject them to
compliance testing; if they were not going to be subjected to
compliance testing, I don't think any documentation is
required.
CHAIRMAN JACKSON: What would trigger whether or not
they would be subjected to compliance testing?
MR. AUSTIN: In large part that is going to be a
function of the volume of production. For the very smallest
manufacturers it is unlikely that we will be doing any
significant amount of compliance testing.
CHAIRMAN JACKSON: But it is possible.
MR. AUSTIN: It is possible.
CHAIRMAN JACKSON: So, what you are saying is, in
reality, the program is applicable to all manufacturers, and
there is a burden, although it be discretionary in its appli-
cation, on all the manufacturers.
MR. AUSTIN: It is a different burden. The big
manufacturers have to file the applications, copies of the
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applications with us prior to initiating sale. The smaller
manufacturers do not. That is just because many of the smaller
manufacturers will never be involved in the enforcement testing
program for a particular model year, and, therefore, it would
be an unnecessary expense on their part to require them to
duplicate and forward copies of their applications, which we
understand they are already required to have on file at their
facility to be in compliance with EPA regulations.
CHAIRMAN JACKSON: That is correct. But the pro-
visions of the regulation would nonetheless provide you the
authority to request that submission.
MR. AUSTIN: That is correct.
CHAIRMAN JACKSON: But it is at your discretion.
And you are suggesting that you may not exercise that discre-
tion with regard to the smaller manufacturers.
MR. AUSTIN: That is correct.
CHAIRMAN JACKSON: Is there anything else, gentlemen?
I think that about does it, Mr. Austin. Thank you.
MR. WALSH: Good morning. My name is John Walsh.
I am representing the Suzuki Motor Company today.
Suzuki Motor Company would like to take this oppor-
tunity to comment on a possible waiver of federal preemption
of California compliance testing and inspection of 197 8 and
subsequent model year motorcycles.
The EPA has determined that California must receive
a waiver of federal preemption of this matter before
California can effectuate this program. Suzuki agrees. To
determine otherwise would make the federal preemption provision:
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of the Clean Air Act meaningless, in that any state could
"attempt to enforce" motorcycle emission standards and order
recalls or implement other enforcement procedures against
manufacturers. The language of Section 209(a) expressly
prohibits any such state action. Only California, through the
provisions of Section 209(b) may take such action, subject to
EPA's waiving the federal preemption requirements of Section
209.
EPA cannot waive the federal preemption requirements
of Section 209 for California if the Administrator finds that
the California standards are not more stringent than applicable
federal standards or if he finds that the California standards
and accompanying enforcement procedures are not consistent with
Section 202(a) of the Clean Air Act.
EPA held a hearing on 16 May 1977 to reconsider its
1 October 1976 waiver of federal preemption for the then-
current California motorcycle standards. Our testimony at
the 16 May 1977 waiver hearing is relevant to this proceeding,
and I am submitting a copy of Pages 193 through 212 of the
transcript of the 16 May 1977 hearing to Ms. Urbine for intro-
duction into the record of this hearing.
Based on our previous testimony and based on our
testimony today, Suzuki believes that it is obvious that the
California motorcycle emission standards and test procedures
are not more stringent than applicable federal standards for
1978 through 1981 model-year motorcycles. At best, in the
ARB's own words, the standards and test procedures are
"equivalent in stringency" (letter from CARB to EPA,
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20 January 1977), and no waiver can be granted for "equivalent"
standards.
Under any method of comparison of the federal
standards and test procedures with the ARB standards and test
procedures, the federal requirements are more stringent. EPA
has found that 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 procedures (42 Federal
Register 31641). Using this test, the ARB and EPA hydrocarbon
standards and test procedures are identical, while the EPA
carbon monoxide standards and test procedures are much more
stringent than applicable ARB CO standards, of which there are
none. The EPA regulates HC and CO emissions from motorcycles.
ARB regulates only HC. The EPA program will more stringently
control motorcycle emissions in California, and thus further
reduce air pollution (36 Federal Register 17458). If motor-
cycles comply with federal standards, they automatically
comply with ARB standards. The converse, however, is not
true. Compliance with ARB HC standards does not ensure com-
pliance with EPA CO standards, so this method of evaluating
relative stringency shows that the federal standards are more
stringent (42 Federal Register 2338). Likewise, no addi-
tional hardware is necessary for a motorcycle which meets
federal standards to meet ARB standards. Again, the converse
is not true, since some additional emission control hardware
will be necessary for motorcycles to meet the EPA CO standard
over what would be required to meet the EPA/ARB HC standard
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alone. Under this test for relative stringency (42 Federal
Register 2338), the federal regulations again are more
stringent. The test procedures used in certifying the motor-
cycles are identical; there are no differences in the
California test procedures which may result in increased
stringency of the standards. Again, the California program is
no more stringent and the federal program is more stringent
because of the applicability of testing for CO emissions
(42 Federal Register 25756).
Since no waiver can be made for the California
standards, no waiver can be made for compliance testing to
enforce those standards. Suzuki believes that we have made it
clear that the federal motorcycle emission regulations for
1978 through 1981 model-year motorcycles are more stringent
than the applicable California standards. Since these
California standards are not more stringent, no waiver of
federal preemption can be made for the 1978 through 1981
standards. Because no waiver can be made for the standards,
California cannot "attempt to enforce" these standards, and no
waiver can be made for the compliance testing and inspection
procedures under consideration today.
Motorcycle compliance testing cannot be considered
in determining relative stringency.
In the past, EPA has considered the numerical
stringency of emission standards and the contribution to
stringency of mandatory accompanying test procedures to
evaluate the relative stringency of federal and California
programs. To thes best of our knowledge, EPA has never
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considered a discretionary program, such as compliance testing,
as a factor in determining the relative stringency of a
California program. Suzuki believes that EPA cannot consider
compliance testing as contributing to stringency. EPA itself
has said that stringency determinations are made on the basis
of the emission standards and the certification procedures
used to demonstrate compliance with those standards (42 Federal
Register 31641). Clearly, compliance testing which is not
part of a certification procedure is outside the scope of the
stringency determination issue.
Previous ARB compliance testing programs have been
based upon mandatory assembly line testing. Since California
required assembly line testing before sale of vehicles in
California, assembly line testing might be considered as
impacting relative stringency of the standard as part of the
required "accompanying test procedures" which could directly
bear on the stringency of the standard itself (42 Federal
Register 25756). Waivers were granted for these required
assembly line tests as part of the method of showing presale
compliance with ARB emission standards. Complementary com-
pliance testing methods based on the required assembly line
testing were a natural outgrowth of the assembly line test.
Naturally, compliance testing was subject to an EPA waiver for
the considerations outlined at the beginning of our comments,
and such a waiver could be granted because California already
had a valid waiver for its certification program, which include'
the assembly line testing on which compliance testing was
based. Thus, the waiver could be granted not because
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compliance had effect on the stringency of ARB's emissions
regulations, but because compliance testing was a complement
to required assembly line testing which was part of a more
stringent California emissions program.
No such situation exists for motorcycle compliance
testing. Compliance testing for motorcycles is not mandatory,
and is not complementary to any required assembly line testing,
of which there is none. Since there is no required assembly
line testing, no waiver can be made for motorcycle compliance
testinq as a comolement to required enforcement procedures.
Since there is no required assembly line testing to which
compliance testing is a complement, the compliance testing
cannot be said to affect stringency through the effect of
stringency of assembly line testing. Since compliance testing
is not required, it cannot be said to increase the stringency
of ARB's standards in any demonstrable way.
For these reasons, Suzuki submits that discretionary
compliance testing alone, without basis upon required certifi-
cation testing, cannot be considered as impacting the
stringency of California's emissions program because it is not
part of the "accompanying enforcement procedures" which may be
considered in determining stringency (42 Federal Register
25756).
Even if compliance testing is considered to determine
stringency, California's program is not more stringent than
the federal program.
Suzuki believes we have shown several reasons why
EPA cannot waive federal preemption for California compliance
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testing of 1978 through 1981 motorcycles. We also feel that
we have shown that there is no logical basis on which to
consider compliance testing as having any relevance to rela-
tive stringency, since it is merely an "attempt to enforce"
emission standards rather than an "accompanying enforcement
procedure" which could impact relative stringency. EPA,
however, has been known to blaze new logical trails in order
to waive federal preemption of California rules (42 Federal
Register 1503, 1506). In order to provide for the
eventuality that EPA may again set out on new ground and con-
sider the effect of compliance testing upon relative stringency
we would like to comment upon that proposition, without accept-
ing it.
Even if EPA considers the effect of compliance
testing on relative stringency, Suzuki believes that the
California program is not more stringent than the federal
program. Since no compliance testing is required, any pro-
jections of impact are speculative, but we will use the ARB
projections, as outlined in Staff Report 77-15-4, as a basis.
ARB expects that the potential impact of testing-related
emissions is still 0.00115 tons of HC per day, or 840 pounds
per year. ARB has underestimated the impact somewhat, in
that extra workers must be added to the ARB staff and industry
staff to cope with the extra work. We estimate that a total
of slightly more than 1000 pounds of HC emissions per year
will be the real HC impact of compliance testing (See Table 1).
It is useful to note that all of these emissions occur in the
South Coast Air Basin, which is the location of the most
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"compelling and extraordinary conditions" which ARB must use
to justify separate standards.
Turning to the potential emissions reductions which
would result from compliance testing, we should remember that
no emission reductions would result unless non-complying
vehicles were found. Table 2 outlines Suzuki's estimate of
potential HC emissions reductions.
For the entire State of California, then, there might
be a net HC emissions reduction of 300 pounds per year
(0.00041 tons per day). For the South Coast Air Basin,
however, where less than half of the expected statewide
benefits would occur/ there would be an increase in HC
emissions of 350 pounds per year because of the testing-
related emissions. We would like to point out that even if
our calculations are inaccurate by 150 percent, there would
still be a net increase in HC emissions in the South Coast Air
Basin. Certainly, CO and N0X emissions in the South Coast Air
Basin would be aggravated by all of this testing, since ARB
would lack authority to cause any reduction in these emissions.
Thus, overall air pollution would be increased in any case.
Although Suzuki recognizes the potential benefit of
compliance testing for automobiles, because of the large
number of vehicles involved, we feel we have shown that no
benefit will result, and hence no relative stringency added,
by the existence of California motorcycle compliance testing
for motorcycles.
If we assume, without conceding, that ARB over-
estimated HC impact and Suzuki underestimated HC reduction ,
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benefits, we still see that California's emission program is
no more stringent than EPA's. Only EPA can take enforcement
action against motorcycles for noncompliance with EPA CO
standards. CO noncompliance is a larger risk for manu-
facturers on a sales weighted basis because of the number of
large displacement four strokes sold. Thus, EPA enforcement
action (on CO and HC) will result in greater emissions
reduction in California than California action (on HC only)
because many more models would be subjected to risk of
noncompliance with two types of emission standards instead of
one.
The legislative history of the Clean Air Act
prevents granting a waiver for California compliance testing.
EPA has found that the criteria to determine waiver
issues, "... must be read in the light of their unusually
detailed and explicit legislative history" ( 40 Federal
Register 23103). The reasons for granting waivers to
California would be to allow California to set more stringent
emissions standards to meet its compelling and extraordinary
conditions, and to allow California to set more stringent
standards so that emission control technology developed to
meet California standards could be applied later to meet
stringent national emission standards (40 Federal Register
23103). Waiving federal preemption of motorcycle compliance
testing would fly in the face of this legislative history.
Allowing California to implement a program which would aggra-
vate its compelling and extraordinary conditions is clearly
contrary to the first reason for waivers. Even if a reduction
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in HC emissions could be shown, CO and NOx emissions would
increase. When ARB talks of the necessity of reducing HC
emissions in the South Coast Air Basin by 1390 tons per day
in 1990 (ARB testimony, 16 May 1977), even considering a pro-
gram which would either increase emissions, or, arguably,
decrease HC emissions on the order of 0.0004 tons per day
(0.0000029 of ARB's 1990 reduction goal) is a mockery of the
waiver hearing process, especially in the light of its legis-
lative history. Compliance testing will force no new tech-
nology for 1978 through 1981 model-year motorcycles, and will,
in fact, require less technology than applicable federal
standards, so this again shows the impropriety of waiving
federal preemption for motorcycle compliance testing.
Even if a waiver is contemplated. Section 202(a) of
the Clean Air Act requires that no waiver be made until the
1981 model year.
Suzuki believes we have shown the many reasons why
no waiver can be made for the ARB emission standards for 1978
through 1981 model-year motorcycles and for at least the 198 2
model-year motorcycles. Without such a waiver for the stan-
dards, of course, EPA could not waive federal preemption for
ARB compliance testing. IF EPA does not waive preemption of
ARB's standards, EPA cannot waive preemption of compliance
testing because the basis for such a waiver under the Clean
Air Act, the existence of more stringent California standards
which need California enforcement, would be missing.
If, however, EPA somehow waives preemption of ARB's
compliance testing, consistency with Section 202(a) of the
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Clean Air Act demands that such waiver not be granted until
the 1981 model year. Suzuki is confident of the compliance
of all of our motorcycles with EPA's emission standards.
Because of the relative newness of motorcycle emission
regulations, however, we do not yet know the quantitative
emissions variability from motorcycle to motorcycle, and we
have not yet determined the major sources of such variability.
Suzuki believes this is a common situation throughout the
industry. In order to more carefully control motorcycle
emissions, Suzuki is in the process of implementing strict
internal variability study and control programs. Because of
the cost of the equipment, the time necessary for installation
of equipment, the time necessary to develop and implement a
workable and meaningful study program and control program, we
estimate that we will not complete this program until the end of
production of 1980 models. We need until the end of production
of 1978 models to install the necessary equipment and develop
our testing plan. We estimate that we will need to test
through the 1979 model-year production for preliminary studies
on quantitative variability and to refine our study program.
Finally, we estimate that we will need to test
through the 1980 model year to implement our refined program
and to determine the precise sources of motorcycle to motor-
cycle emissions performance variability. We see, therefore,
that the lead time restraints which must be considered in
determining consistency with Section 202 (a) of the Clean Air
Act would prohibit a waiver of preemption of California pre-
emption until the 1981 model year.
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The cost of compliance shows California compliance
testing is not consistent with Section 202(a) of the Clean
Air Act.
Finally, in determining the consistency of
California's compliance testing program with Section 202(a) of
the Clean Air Act, the Administrator must take the cost of
compliance into account. In the past, EPA has taken a narrow
view of this issue, such that "... ambiguous and contro-
versial matters of public policy. . were left to California's
judgment (40 Federal Register 23104). In the present case,
however, Suzuki's revised estimate of the cost of participating
in a California compliance testing program is $5.75 to $6.90
per motorcycle (See Table 3). Even if we assume that the
industry-wide cost per motorcycle is $5.00, since we can only
expect a 0.003 pound per motorcycle decrease in HC emissions
(300 pounds per year divided by 90,000 motorcycle sales per
year), the cost per pound of HC controlled by this strategy
is roughly $1700 per pound. For ARB to consider such a
control strategy is not sensible. EPA must take this cost
into consideration before waiving federal preemption if the
express language of Section 202(a) is to have any meaning at
all. In this case, the ridiculous cost of the program shows
the inconsistency of the program with Section 202(a) of the
Clean Air Act, and waiver of federal preemption is thereby
barred.
Summary and Conclusion.
In summary, Suzuki opposes a waiver of federal
preemption for California motorcycle compliance testing. In
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addition to the unnecessarily duplicative concept of the
program, no waiver can be made because:
1.	No waiver of preemption of California compliance
testing can be made unless EPA waives preemption of California
standards and test procedures;
2.	No waiver of federal preemption of California's
motorcycle emission standards (adopted 24 March 1977) has been
made;
3.	No waiver of federal preemption of California's
motorcvcle emission standards (adopted 24 March 1977) can be
made, at least through the 1982 model year, because of the
stringency and consistency requirements of Section 209;
4.	California's compliance testing program cannot be
considered in an evaluation of the relative stringency of
California and federal emissions programs;
5.	Even if compliance testing is considered to
evaluate relative stringency, the California program is not
more stringent than the applicable federal program; and
6.	Even if a waiver of preemption for compliance
testing is contemplated, consistency with Section 202(a) of
the Clean Air Act prohibits such a waiver until at least the
1981 model year, and probably for the entire program.
Despite this lengthy discussion, Suzuki is not
opposed to motorcycle exhaust emission control. Suzuki was
one of the manufacturers who first approached EPA and suggested
that motorcycles could reduce their exhaust emissions. Suzuki
participated in the regulation-making process, and the HC
emission standard for 1978 and 1979 model year motorcycles was
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a Suzuki suggestion. Suzuki is, however, opposed to costly,
duplicative, inefficient emission control programs, such as
the California program. Despite California's statements that
they would step out of the motorcycle emission control area
once EPA acted, the ARB has hung tenaciously to a fear that
motorcycle emissions alone will cause massive air pollution
throughout California.
Suzuki recognizes the ARB's intent to reduce
emissions in California. Suzuki recognizes ARB's desire to
perform compliance, testing of emission controlled motorcycles.
Suzuki's suggestion to the ARB is that they perform the
compliance testing and report the results of any noncomplying
vehicles to EPA for appropriate enforcement action against both
HC and Co violations. We trust that a denial of waiver of
federal preemption will let the ARB know that they have gone
too far in adopting an ineffective control program.
Thank you. I will be happy to answer any questions
that you might have.
MR. KRUSE: On Page 7 of your statement, you are
discussing an ARB Staff Report which deals with potential
impact. I presume what this report says is that these are
increases in emissions —
MR. WALSH: Yes.
MR. KRUSE: ~ in the Basin?
MR. WALSH: Yes.
MR. KRUSE: And you are adding to that based on
additional test load you expect to see at your facility?
MR. WALSH: No. Based on additional workers who.
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will be traveling to work.
MR. GRAY: After your discussion of the stringency,
you address, I think on Page 10 and 11 of your statement, at
least partially, technical feasibility. You make the state-
ment that, "Suzuki is confident of the compliance of all of
our motorcycles with EPA's emission standards," which require
the highest emitting bike in each engine family to be able to
comply with the standards. And then you follow up and say,
however, you expect a California new bike testing program to
be costly, and because you are not sure about the bike-to-bike
variability, you are not exactly sure how many bikes will be
able to meet the standard, new bikes. Is that the thrust of
that discussion?
MR. WALSH: No, that is not. The cost of the
program is primarily administrative cost. There is no cost
in our estimate related to technology.
MR. GRAY: Well, you make the statement with
respect to variability that, "We need until the end of
production of 1978 models to install the necessary equipment
and develop our testing plan. We estimate that we will need
to test through the 1979 model-year production for preliminary
studies on quantitative variability and to refine our study
program. Finally, we estimate that we will need to test
through the 1980 model year to implement our refined program
and to determine the precise sources of motorcycle to motor-
cycle emissions performance variability."
Now, this equipment and this work you have to do to
implement this program appears to be directed at reducing
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sources of motorcycle to motorcycle emissions. Variability,
presumably because there is some concern that this variability
is significant enough that such bikes would not comply with
the California compliance testing requirements?
MR. WALSH: I do not think so. The equipment to
which we refer is emissions testing equipment which we need to
install at all our facilities before we can begin to determine
with greater accuracy the variability from motorcycle to
motorcycle and the sources of that variability.
MR. GRAY: Maybe I can put it a different way. If
you are concerned about this variability, don't you feel it
important to implement this program before '78 bikes for
federal standards are sold? What assurance do you have that
those bikes will make the federal standards in use?
MR. WALSH; Apparently the information which we
have already assures us that we will be able to meet the
federal standards. The program to which we refer in our
comments is a program aimed at further reducing the variability
and further determining the precise sources of that variability
so that we can face future emission standards with more confi-
dence .
CHAIRMAN JACKSON: Isn't what you are really saying
that you can meet the standards as long as they are only
measured in certification, but if you look at production bikes,
we may have a problem?
MR. WALSH: No.
CHAIRMAN JACKSON: Why do you have to worry about
the production bikes then?
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MR. WALSH: If we look down the road —
CHAIRMAN JACKSON: Let's just look at the California
program for which you appear to be doing this variability
study. Why are you concerned there and you are not concerned
with regard to the federal bikes and their compliance status
at the assembly line?
MR. WALSH: I think the program we are implementing
relates to both the federal and California programs.
CHAIRMAN JACKSON: You would not want to amend your
statement to take off of the requirement which is apparently
imposed by the California program this bit of development
work and cost and time, so that argument goes apart.
MR. WALSH: Not really, because we still have lead-
time constraints.
CHAIRMAN JACKSON: That means you cannot make it
for the federal standards either?
MR. WALSH: It means we cannot get that program
implemented in time. But., again, I want to —
CHAIRMAN JACKSON: What you are saying is you can
meet the standards as long as nobody tests your bikes?
MR. WALSH: No, not at all. We can meet the
standards, and we are confident that the variability between
motorcycles is low enough that they will all meet the
standards. But what we are saying is that we need to do
this — in order to improve quality control in the future, we
need to implement this program.
MR. KRUSE: But this program is a program, then,
to your benefit to allow you to design your bicycles to have
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less needed cushion between the design goal and the standard,
rather than something which you would have to do to meet either
the federal or California state requirements. This is going
to be to your benefit.
MR. WALSH: In that sense it could be.
MR. GRAY: To try to distinguish in your discussion
technological problems from administrative costs and
associated problems, you just made the statement as I under-
stand it — And please correct me if I misunderstand it —
that Suzuki expects all of your bikes to be able to meet the
standards.
MR. WALSH: Right.
MR. GRAY: If that is a correct statement, then
there is not an issue of technological feasibility. It then
focuses primarily on the arguments you have made about
administrative costs and relative stringency, is that correct?
In other words, how can you say that all of your bikes will
meet the standards and yet express some concern that the
technology is not there in order to comply with the California
requirement?
MR. WALSH: I would have to agree that the tech-
nological feasibility is not a strong part of our comment.
MR. GRAY: All right. In the following discussion
you quantify the cost of this program, $5 to $6, or, for
Suzuki, probably $5.75 to $6.90. What goes into that cost?
MR. WALSH: Table 3, I believe, outlines our
breakdown of that cost.
MR. GRAY: Looking at this table, you have included
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no cost for this in-house program to reduce variability.
MR. WALSH: That is correct.
MR. GRAY: Do you have an estimate of what Suzuki
plans to invest in that program?
MR. WALSH: I do not, but I can get one and submit it
later if you desire.
MR. GRAY: I guess it would be important in the
context if you think it's an important argument relative to
the requirements of this regulation.
MR. WALSH: I will try to get that information and
submit it to you.
CHAIRMAN JACKSON: I think it would be prudent to
also explain why you are concerned about the variability with
regard to production bikes subject to the California testing
rather than being concerned about the variability as it applies
to the federal models, and, if you are not, I would expect
you to amend your argument on Page 11 with regard to your
study necessary to determine what the variability is.
I really have a lot of trouble with this. I really
do. Because what it really comes down to is, as I said
before, as long as you don't test them, they meet the standards
But if you test them, that's a different ballgame. And that is
what California is saying. They are saying because we are
going to test them, you are going to have to do these things,
you are going to have to pay more attention to quality control,
because certification does not give a guarantee that every
bike is going to meet the standards as they come rolling off
the production line. That is the nub of the whole issue.
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And I agree with you. If I were you, I would be
doing more, too, to those bikes to make sure that they meet
the standards if they were going to be tested, and if there
were going to be sanctions available if they did not meet the
standards, regardless of what happens in certification.
MR. WALSH: I think the best thing for me to do
right now is to take your concerns and submit some additional
comments on that issue.
CHAIRMAN JACKSON: On the bottom of Page 8 you start
talking about a risk as it relates to CO. "Thus, EPA
enforcement action on CO and HC will result in greater
emissions reduction in California than California action on
HC only because many more miles would be subjected to risk
of noncompliance with two types of emission standards instead
of one."
What risk and what enforcement action are you
talking about?
MR. WALSH: There is always the risk that a produc-
tion motorcycle will not comply with the emission standards.
If a production motorcycle is found which does not comply,
then appropriate enforcement sanctions could be made to bring
that motorcycle into compliance. And if further testing
indicated that that problem was common to an engine family,
of course, there would be costs associated with bringing all
motorcycles in that engine family into compliance.
CHAIRMAN JACKSON: I understand what you have said,
but I do not see how it describes a risk or EPA enforcement
action which imparts that risk.
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As I understand the certification, either you are
certified or you are not, so there is no risk there as it
would relate to enforcement action.
MR. WALSH: Right. But, of course, EPA can test to
determine if production motorcycles are complying, and can
take appropriate enforcement action if noncomplying vehicles
are found.
CHAIRMAN JACKSON: They can —
MR. WALSH: Yes.
CHAIRMAN JACKSON: There is authority in the law to
do that —
MR. WALSH: Yes.
CHAIRMAN JACKSON: — but there are no regs on the
books which implement that authority, and so we are really not
talking about that, are we? We are talking about California
implementing, to an extent, that authority.
There is no federal assembly line test requirement,
is that correct?
MR. WALSH: Right.
CHAIRMAN JACKSON: So, that argument goes away,
that business of enforcement action and risk.
MR. WALSH: I would hesitate to say that there would
be no EPA enforcement action if EPA testing found noncomplying
vehicles.
CHAIRMAN JACKSON: Under what authority?
MR. WALSH: Under the authority, the authority of
the Administrator to require manufacturers to submit a
reasonable number of vehicles for testing.
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CHAIRMAN JACKSON: The Administrator is required to
implement that requirement by regulation.
MR. WALSH: There is in the existing regulation
authority for the Administrator to test vehicles for com-
pliance .
CHAIRMAN JACKSON: Which vehicles?
MR. WALSH: Motorcycles.
CHAIRMAN JACKSON: Which ones? Prototypes?
Certification prototypes?
MR. WALSH: Production vehicles, as I understand it.
CHAIRMAN JACKSON: I think you understand the
regulations differently than I do.
I would be pleased to have you submit for the record
whatever it is you are basing that statement on.
MR. KRUSE: I have a question on Page 12 relating to,
I think, your Table 2.
You talk about .003 pounds per motorcycle decrease
in hydrocarbon emissions on Page 12. And on Table 2 you
have worked out pounds per year of reduction. It looks like
you are using .002 in the table as opposed to .003 as
reflected on Page 12.
Is this an inconsistency, or are we talking about
two different things?
MR. WALSH: No. The .002 in the table is a conver-
sion factor, how many pounds per gram.
The .003. on Page 12 refers to pounds of hydrocarbon
reduced per motorcycle, net hydrocarbon reduction in
California per year.
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MR. KRUSE: Table 2 is total pounds reduction for
all motorcycles — The 1300 pounds per year, what does that
refer to?
MR. WALSH: To the total hydrocarbon emissions
reduction for all motorcycles.
MR. KRUSE: So if I take the number of motorcycles
and work it into that, I should get .003?
MR. WALSH: No. That is the gross reduction in
hydrocarbon emissions. You have to take into account the
1,000 pounds per year hydrocarbon emissions increase which
would be caused by emissions-related testing.
MR. KRUSE: Which the .003 does?
MR. WALSH: Which the .003 does.
CHAIRMAN JACKSON: Mr. Walsh, would you agree that
it is possible to manufacture motorcycles that do not meet
the standards which are certified?
MR. WALSH: It is statistically possible, depending
upon the variability between motorcycles and their mean
emissions output.
CHAIRMAN JACKSON: It is possible?
MR. WALSH: Sure.
CHAIRMAN JACKSON: Is it possible in your judgment
that the California program that we are discussing here can
detect that noncompliance?
MR. WALSH; I believe Table 2 is based on the
assumption that the California program might detect some non-
complying vehicles.
CHAIRMAN JACKSON: Thank you very much.
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MR. WALSH: Thank you, Mr. Chairman.
CHAIRMAN JACKSON: We will go ahead and take their
statement and then break for lunch.
MR. DAVID: Good morning. I am Dennis David,
Manager, Legislative Section, Kawasaki Motors Corporation,
U.S.A.
Seated beside me is Mr. Darrell Johnson, Counsel
for Kawasaki.
It is Kawasaki's view that California's Title 13
Regulation is not more stringent than EPA's regulation; it is
not required to meet compelling and extraordinary conditions,
and it is not consistent with Section 202(a). of the Clean Air
Act.
I will address the three issues of stringency,
compelling and extraordinary conditions, and consistency with
Section 202(a) of the Clean Air Act separately.
1. Are the requirements of Section 2101, Title 13,
California Administrative Code, Compliance Testing and
Inspection - Vehicle Selection, Evaluation, and Enforcement
Action as amended June 30, 1977, more stringent than applicable
federal regulations?
The answer is no. California's regulation specifies
that:
"The Executive Officer may. . . order a vehicle
manufacturer to make available for compliance testing
and/or inspection a reasonable number of vehicles. . .
and may direct that the vehicles be delivered to . . .
the Haagen-Smit Laboratory. . . "
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Section 86.415-78(a) of EPA's Motorcycle Regulations
(40 CFR 86, Subparts E & F) , contains virtually the same
authority:
"Any manufacturer. . . shall supply to the
Administrator, upon his request, a reasonable number of
production vehicles selected by the Administrator. . .
These vehicles shall be supplied for testing at such
time and place and for such reasonable period as the
Administrator may require."
Therefore, EPA's authority to require manufacturers
to provide a reasonable number of production vehicles (at the
discretion of EPA) exists within the federal motorcycle
emission regulations themselves.
Thus, California's Title 13 regulations do not have
the effect of making the standards (which are identical to the
federal standards from 1978 through 1981) more stringent. EPA
has the same authority to test production motorcycles.
In addition, the sanctions that may be imposed if
noncomplying vehicles are discovered during compliance testing
are equally severe. California's regulations provide that the
Executive Officer may invoke Section 2109 of Title 13, which
includes recall and remedy of consumer-owned vehicles at
manufacturer's expense, correction of vehicles under manu-
facture, correction of vehicles in the possession of the manu-
facturer and dealers, and the possibility of a revocation or
conditioning of the certificate of approval to sell the vehicle
in California. California can also levy a fine of up to
$5,000 for each failing vehicle.
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Sections 206 and 207 of the Clean Air Act authorize
EPA to impose virtually the same sanctions; suspension or
revocation of the certificate of conformity, recall of consumer--
owned vehicles, etc. Also, Section 205 of the Act provides
that a civil penalty of not more than $10,000 per vehicle
shall be levied for a violation of Section 203 (a) (4).
At this point one must ask, what are the differences,
if any, between the federal and California regulations? The
only difference we can see is that California's regulations
provide for specific pass/fail sampling techniques whereas
EPA's regulations do not. This fact does not make California's
regulations more severe. California's regulations contain
two optional test procedures, both of which are based on pass/
fail rates derived statistically. As EPA's regulations do
not contain such specific pass/fail requirements, one can only
conclude that when EPA tests for compliance, the vehicle(s)
must comply with the standards. In the absence of any further
specific requirements from EPA, one can only conclude that, if
anything, the EPA regulations are more stringent.
One other point to mention regarding the issue of
stringency has to do with the "intentions" of CARB and EPA to
actually implement the enforcement regulations. It cannot be
concluded that California's enforcement program is more
stringent merely because they have the "intention" at this
time to actually require manufacturers to submit vehicles for
testing. In fact, both California and EPA may or may not
actually implement the enforcement programs authorized by
their respective regulations. To conclude that California's
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regulations are more stringent because of more detailed regu-
lations that California "intends" to fully implement would be
an error. In other words, to base a waiver decision on the
assumption that California will be more diligent in following
its regulation than EPA is wrong.
2. Does California require these regulations to
meet compelling and extraordinary conditions?
Again, the answer is no. There is no denying that
California does have compelling and extraordinary conditions
when it comes down to air pollution, especially in the Los
Angeles Basin. But will California's regulations assist the
state in meeting those conditions? The answer is no.
First, EPA's regulations provide the same (and
maybe even greater) authority to protect aqainst noncomplying
vehicles finding their way, in large numbers, into the hands
of consumers.
Second, and probably a more crucial consideration
involves a judgmental decision. As California does have
compelling and extraordinary conditions, including the almost
impossible goal of meeting the National Ambient Air Quality
Standards, one might be tempted to conclude that the reduction
of a single pound of pollutant is "required" to meet these
conditions. But such a conclusion is obviously absurd. At
what point then does the reduction qualify as needed to meet
those conditions? Certainly not at the level of a motorcycle
enforcement regulation. It is interesting to note that the
CARB Staff Report .77-15-4, dated June 30, 1977, did not even
estimate the potential reduction in air pollution resulting
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from implementation of the enforcement regulations. Instead,
the staff report mentions ". . . the need for inspection and
compliance testing of production motorcycles to evaluate the
effectiveness of the motorcycle control program." The staff
report further mentions that the results of the compliance
testing program will be used to determine a need for motor-
cycle assembly line testing.
If the purpose of CARB's program is merely to
determine the need for assembly line testing, then the regula-
tion does not meet the criterion that it is required to meet
compelling and extraordinary conditions. If the purpose of
the CARB program is to reduce the contribution of motorcycles
to California's air pollution, then that potential reduction
should be estimated and analyzed to determine if the reduction
qualifies above the level of the absurd (the one pound of
pollutant example) to some point at which a proper judgment
could be made that the reduction is "needed" to meet those
compelling and extraordinary conditions.
Section 209(b) of the Act requires EPA to waive
Section 209(a) unless the Administrator finds, among other
things, that the state does not require the standards to meet
compelling and extraordinary conditions. We urge EPA to
examine this point closely, including an analysis of the
potential reductions resulting from the CARB compliance
testing program. Even though California does have "compelling
and extraordinary conditions," Section 209(a) of the Act
requires EPA to make the finding that the state does not
require its standards to meet those conditions. In other
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words, the mere existence of those conditions does not justify
the granting of a waiver; the state standards must be required
to meet those conditions. Given the magnitude of motorcycle
sales in California, their overall contribution to California's
air pollution problems, and the probability that some manu-
facturers might build a few noncomplying vehicles, and the
effectiveness of the control program in preventing these non-
complying vehicles from continuing to exceed the standards,
we, as reasonable people ourselves, cannot agree that
California "needs" these regulations.
3. Are the California regulations consistent with
Section 202(a) of the Clean Air Act?
Section 202(a) of the Act requires that any regula-
tions shall take effect only after such period as EPA finds
necessary to permit the development and application of the
requisite technology, giving appropriate consideration to the
cost of compliance within such period.
In the issue at hand, the question of cost far out-
weighs the question of requisite technology. IF EPA gives an
"appropriate" consideration to the cost of California's
enforcement program, it will be found that the costs far out-
weigh the benefits. In the CARB's June 30 Staff Report, it
is estimated that $200,000 per year will be expended for the
compliance program. This estimate is based on the assumption
that additional costs will be incurred if failing engine
families are detected and corrective action is required. In
other words, the $200,000 estimate, which we consider quite an
underestimation, does not buy any reduction in air pollution.
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The reason that we consider the $200,000 estimate low is that
CARB has not included such expenses as shipping, administra-
tion, mileage accumulation, loss of value of tested motor-
cycles, etc. A more realistic estimate of the costs would be
about a quarter of a million dollars, and even tfiat is based on
the Air Resources Board own estimate of test cost of $200 per
unit to be reimbursed by manufacturers.
This expenditure does not result in any reduction in
emissions. Once a failing engine family is discovered,
additional costs would be incurred for remedying the problem.
Like CARB, it is impossible for us to estimate what these addi-
tional costs would be, or the reductions in emissions resulting
from their expenditure. Based on various assumptions of
probability of failure and the extent to which the failures
exceed the standards, one could derive a range of reductions
that might be achievable through implementation of the program.
We urge EPA to make this analysis which we feel will show that
very little potential reductions are available through CARB's
motorcycle enforcement program.
To summarize, CARB's compliance testing regulations
do not make the California regulatory package more stringent
than the federal regulations, California doesn't need these
regulations to meet special conditions, and an appropriate
consideration of the cost of this program will lead to the
conclusion that the cost is not justified by resultant bene-
fits. EPA should not grant a waiver to California.
We have no prior experience in the volume production
of emission controlled motorcycles. However, we are confident
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that our production motorcycles will, in fact, comply with
EPA's regulations, and the granting of this waiver on enforce-
ment testing will place even further burdens on our organiza-
tion.
In the case of the auto industry, the evolu-
tion of emission regulations' occurred over a span of
years. For the motorcycle industry, a very short period of
time has been allowed to accomplish a great deal, with
resources that are only a fraction of those of the auto
industry. We think it is premature for the government to
require compliance testing at a time when the government itself
has no idea whether production motorcycles will comply with the
standards or not. In our opinion, the vast majority of
production motorcycles will comply with the standards, making
compliance testing an unnecessary complication. It would be a
wiser course of action for the government to investigate the
need for compliance testing after January 1, 1978, and then
implement such a program if it is found to be necessary. The
current situation is that manufacturers are being asked to
spend a great deal of money to accomplish very little, if
anything, in terms of air pollution reduction.
Thank you very much.
CHAIRMAN JACKSON: Mr. David, I would ask that you
come back after lunch and give us an opportunity to ask you a
few questions about your statement.
We will take a break until 1:15.
(Luncheon recess.)
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CHAIRMAN JACKSON: Did you say in your testimony
that you had indicated that the EPA could, on the basis of the
authority derived from the language you read from the EPA
regulations, implement the California program that is proposed
here for waiver?
MR. DAVID: No. They have their own regulations,
slightly different. It doesn't contain detailed requirements.
CHAIRMAN JACKSON: Pardon?
MR. DAVID: No.
(Laughter.)
MR. DAVID: EPA has its own regulations, has
virtually the same authority.
CHAIRMAN JACKSON: But do those words provide the
authority to implement a program such as California is asking
a waiver for?
MR. DAVID: It does, but it is not a program like
California is seeking a waiver for. The difference that we
see between the authority EPA possesses and the regulations
California is seeking waiver for is that California has
expanded their authority to include the details. That is the
only difference that we see. EPA has the authority to
select a reasonable number of production vehicles for testing.
CHAIRMAN JACKSON: Right. But on the basis of
that testing, could we revoke a certificate?
MR. DAVID: Absolutely. I see no way out of that as
far as I can understand.
CHAIRMAN JACKSON: Would it be on the basis of some
percentage compliance, or could you do it for any cycle?
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MR. DAVID: In the absence of any specific require-
ments, it would be — If a vehicle does not comply, it does
not comply. That would give rise to the question, "Should
the certificate be revoked? Should a recall program be
instituted, or other correct measures?"
CHAIRMAN JACKSON: Do you believe that the language
that presently exists in the federal regulations establishes
sufficient authority for that, and that you can be confident
that your company would not object to the implementation of
that authority in the way you have described?
MR. DAVID: I cannot say that we wouldn't object to
it. It is there. We are living with it. If EPA chooses to
select a reasonable number of production vehicles, we will
supply them.
"Objection" is kind of an irrelevant word to use
there. We may object to supplying a reasonable number of
production vehicles because it costs us money.
CHAIRMAN JACKSON: How about "stipulate"?
MR. DAVID: Stipulate? Well, if EPA ordered us,
directed us to supply a reasonable number of a particular
model or many models to any location that they may determine,
we would do that.
If, on the basis of that testing, EPA concluded that
those vehicles did not comply, then it would be on your
shoulders what enforcement action should be taken — suspension
of the certificate, revocation, recall program, whatever
remedial program would be required would be at the option of
EPA at that point.
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There are no specific guidelines published by the
EPA. That is the only difference we see between the authority
that you have and the regulations that CARB is now seeking a
waiver for. They have a specific program that says that so
/
many must pass, we will select up to this many. There is a
limit — They will be delivered to a fixed location; the manu-
facturer shall pay the test costs. Other than those specific
requirements, the authority to enforce the standards is
essentially the same.
CHAIRMAN JACKSON: What do those specific require-
ments do? Do they make it any less enforceable as far as
the federal regulation is concerned, in your mind?
MR. DAVID: They place limits on the Air Resources
Board1s determination.
CHAIRMAN JACKSON: I am not —
MR. DAVID: Those limits are not placed on EPA's
determination once that testing has occurred.
CHAIRMAN JACKSON: I am looking at it from the other
end. I am looking at what it is you think the federal govern-
ment has authority to do, and you say the difference between
the federal program as it exists under the regs that you
referred to and the California program are the details. What
is the significance of the difference as it relates to those
details?
MR. DAVID: In the absence of any specific regulation
on the part of EPA, which would provide EPA's details, I can
only conclude that the limitations that California has
imposed upon themselves by adopting this particular pass/fail
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sampling technique, limit to the number of vehicles which
could be selected, specific locations where those vehicles
must be delivered, those are limits. And since those are
limits to their enforcement capabilities, EPA's program in the
absence of any specific guidelines, I would have to consider it
more stringent.
CHAIRMAN JACKSON: But, nevertheless, enforceable,
and, nevertheless, operable.
MR. DAVID: They are in effect now. Starting
January 1st, if you fellows ask for 4 0 motorcycles, if that's
reasonable, we will have to supply you with 40 motorcycles
for testing — production vehicles. On the basis of that
testing, if you conclude that we have a problem with those
vehicles, you could order whatever enforcement action you deem
appropriate.
I guess that is the way we read those regulations.
CHAIRMAN JACKSON: What test procedure would you
surmise that the federal government would use under the
authority which we are talking about here?
MR. DAVID: I would guess that you would use the
federal test procedure applicable to that model-year vehicle.
CHAIRMAN JACKSON: But what makes you certain that
we would?
MR. DAVID: It is the only one that both of us know
about at this point, the Subpart (f).
CHAIRMAN JACKSON: But if we did, that would be, in
your view, an appropriate exercise of that authority that
exists in the federal regulations if we did use the
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certification test procedures?
MR. DAVID: Yes. I think we consider that
reasonable. That is the best way that all of us know how to
test for emissions right now for motorcycles, exactly the same
test procedure that would be used in California. It is the
Subpart (f) test procedures.
CHAIRMAN JACKSON: If I told you by virtue of some
guidance that the federal authority would be implemented
using the limits established by California, would that change
your view at all?
MR. DAVID: The only way that that would change my
view would be that the assumption that we have made, lacking
specific guidelines, that your authority has no limits, that
it is more stringent, would bring it to equal stringency —
you know, if you said no more than 24 vehicles, for instance,
or eight out of 12 must pass.
CHAIRMAN JACKSON: The number of vehicles does not
define stringency. It just defines the burden.
MR. DAVID: True. It can define stringency if you
are talking about statistical probability, but. . .
CHAIRMAN JACKSON: But if you are talking about
confidence, it can make a difference in confidence, but let us
hope it would not make a difference in stringency.
MR. GRAY: Along the same line, in your prepared
statement you said one can only conclude that when EPA tests
for compliance, the vehicles must comply with the standards.
Each vehicle must comply with the standards, is that
essentially what you are saying?
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MR. DAVID: What I am saying there is that the words
that are contained in the emission regulation do not contain
any limitations on your authority as far as sanctions you can
impose if you discover a noncomplying vehicle.
You can discover that noncomplying vehicle either
under this production test regulation or by contracting with
an independent laboratory or by sampling consumer-owned
vehicles.
CHAIRMAN JACKSON: How about contracting with
California?
MR. DAVID: I suppose, if that is one of the options
available. I don't know if you could do that.
CHAIRMAN JACKSON: Why couldn't they?
MR. DAVID: I do not know. I could not say. I
do not know if you can, legally. You got me.
CHAIRMAN JACKSON: What would be wrong with that?
Let's just not give them a waiver, let's just implement the
federal authority using California. They seem to want to do
it.
MR. JOHNSON: You are running your own department.
If you think it is appropriate to do that, I suppose that you
could.
CHAIRMAN JACKSON: I am not asking that question.
I am asking what your view is about us doing it.
MR. DAVID: I have two views, and you have to
sympathize with me. One view is professional, comes from the
fact that I work for a motorcycle company. I have another
view which comes from the fact that I am a California taxpayer.
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Sometimes it gets difficult at these hearings to segregate
that in my mind.
I am a little disenchanted with the ARB proceeding
and continue to proceed down at the regulatory program, and
as a taxpayer I disagree with that.
But, trying to throw that out, I have no objections
to contracting with anyone that is a part of your authority.
But it is kind of a hard thing to express at a hearing.
CHAIRMAN JACKSON: As a taxpayer in the bigger
sense (indicating quotes), if we were to say that this makes
more sense, let California run a program which they admit is
for the purpose of determining whether a more comprehensive
assembly line test program is needed, why wouldn't it make
more sense to do that so the federal government does not have
to do the same thing, so to speak, or indeed —
MR. DAVID: The federal government would be doing
it. They would be doing it under contract with somebody.
I think some of the difficulties that we have with
the California program, they sound very minor, but as a motor-
cycle company are major — The question of shipping crated
motorcycles to El Monte, sending technicians, crating them,
breaking in the uotorcycle, then emission testing it — then
what do you do with that uncrated used motorcycle?
CHAIRMAN JACKSON: That is the same problem you are
going to have with the federal program we are talking about —
MR. DAVID: But you have the authority to designate
different locations. For instance, you could designate our
Okoshie Laboratory as the location where that testing may
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occur and send an inspector there.
CHAIRMAN JACKSON: I'm going to use El Monte.
MR. DAVID: Well, I think we have the same problems
with those motorcycles. It is going to be difficult both
ways.
But the question before us is whether or not you
can grant a California waiver, not how you guys are going to
run your own test program.
CHAIRMAN JACKSON: No. The question before us is
the fact that you say that the federal government has the
authority for which California is trying to acquire waiver,
and, because of that, not only just authority under the law,
but implement it by virtue of regulations. Therefore, there
is no way that the California program can be more stringent.
MR. DAVID: That is what —
CHAIRMAN JACKSON: That is the point I was trying to
get at.
MR. DAVID: That is my feeling.
CHAIRMAN JACKSON: But the objections you are raising
here seem to me like they would be legitimate objections to
the federal program that require ostensibly the same thing —
Say, for example, instead of delivering them to El Monte,
how about Houston, Texas?
MR. DAVID: Same problem.
CHAIRMAN JACKSON: Same problem. But, see, you
do not even have an opportunity to comment on that if I were
to use the federal authority which you say I have.
MR. DAVID: That is true. It is irrelevant to the
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waiver decision, however. The waiver decision is based on
whether or not California's regulations are more stringent,
consistent with 202, and are needed to meet compelling and
extraordinary conditions. They are not more stringent. You
have that authority. They are not consistent with 202.
The cost of running that compliance program probably
won't catch anybody out of compliance.
CHAIRMAN JACKSON: The cost of running that program
probably won't catch anybody out of compliance?
MR. DAVID: Yes. We are pretty confident that
every one of our production vehicles will meet those standards.
Nobody can guarantee that every single product that you build
will comply with your design specifications. There is always
the remote possibility that something you build won't comply.
You have the authority to pick that up — equal authority —
if anything, more stringent authority. You have more flexi-
bility in what you can do.
CHAIRMAN JACKSON: So, really what you are objecting
to is California doing it as opposed to it being done at all.
MR. DAVID: Right. Because wh^t it causes us to
do, we have to deal with two governments simultaneously to
meet the same emission standards. It is the same discussion
we had at the May 16th hearing, and that is that the federal
emissions standards were developed in direct response to the
needs at the Los Angeles Air Basin. They were developed in
direct response to the failure on the part of the Air Resources
Board to develop an implementation plan to properly solve the
air pollution problem.
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Given that background, we believe that the
Environmental Protection Agency is the correct and the sole
agency that should regulate motorcycle emissions.
For us to go through a bilateral administration of
two governments regulating the same standards is absurd. And
I am sorry to use that word, but to us that seems like a very
inadvisable course of action for our government to take. That
is the best way I can put it. I don't know what else to say.
CHAIRMAN JACKSON: But your problems would go away
substantially if it were the federal government program being
implemented through the California Air Resources Board using
the federal sanctions — certificate, revocation, recall?
MR. DAVID: I don't know. That's for you fellows.
I can neither object nor sympathize with that argument,
because that is part of . . . How you implement the authority
that you have, I don't know.
MR. GRAY: Just to make sure that we are clear on the
technology aspects of your statement, is it fair to say that
you see no technological problems in complying with the
requirements such as California has specified — that is,
either of the options?
You essentially say that you expect essentially all
of your bikes to meet the standards.
MR. DAVID: Yes. We have a strong quality control
program, and our emission target is below the standards. We
have pretty good confidence that technologically we will be
able to comply with the compliance program, whether it is yours
or California's.
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MR. GRAY: All right.
CHAIRMAN JACKSON: Would you change that design
target if there weren't any of the provisions which you have
cited such as the existing federal authority to test produc-
tion bikes?
MR. DAVID: No, I do not think we would, because
primarily that design target is established, one, because
there are production variables between this unit and that unit,
this test and that test, but also there is a threat of recall,
which, in the case of a $6 00 motorcycle, is something you just
can't afford to take that risk on. So you have to give your-
self some safety margins there so that if your production
variances are a little bit higher than you really designed it
for, you are not going to be exposed to a recall campaign,
which would take away not only the profit, but would put you
in a loss position on those motorcycles.very quickly.
CHAIRMAN JACKSON: Would you then agree that it is
possible to build motorcycles that are certified that do not
meet the standards?
MR. DAVID: I think that goes without saying. The
certificate covers the design specifications for those par-
ticular units. It is always possible to make a defect during
the manufacturing process.
CHAIRMAN JACKSON: Would you also agree that it is
possible that the CARB program could detect such noncompliance?
MR. DAVID: Yes, I agree that that is possible.
Obviously, if there is a case where a manufacturer could
build a production run and a few of those vehicles don't
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comply because of a defect or some other problem, it is
possible for that program to find those motorcycles. I think
we would argue very strongly that the second provision of
Section 209(b) says that the state must require those standards
to meet compelling and extraordinary conditions. I get back
to the one-pound pollutant example. If we were able to find
a certain number of noncomplying motorcycles and save ourselves
300 pounds of hydrocarbon per year, I would call that an
absurd compliance program, and it is not an appropriate con-
sideration of costs made there, and it is not needed to meet
those compelling and extraordinary conditions. So it requires
a judgmental decision, what is needed to meet California's
air pollution problems. Regulation which would reduce one
pound of pollutant? We couldn't agree with that. There has
to be some reasonable point where it is needed to meet those
compelling and extraordinary conditions. This is not the
case.
CHAIRMAN JACKSON: That is all based on the
assumption that cycles will comply, I think you mentioned
the possibility that even though they are certified that they
may not comply with the standards.
MR. DAVID: There is always that possibility.
CHAIRMAN JACKSON: And you cited, I think, defects,
and also such things as production tolerances —
MR. DAVID: Sure.
CHAIRMAN JACKSON: — "misbuilds," which you may
call a defect —
MR. DAVID: Certainly. But you have the authority
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to catch those — if anything, greater authority than CARB has.
CHAIRMAN JACKSON: Thank you, Mr. David.
MR. JOELSON: Good afternoon. My name is Mark R.
Joelson, and I am a member of the Washington, D.C. law firm
of Arent, Fox, Kintner, Plotkin & Kahn. I am appearing today
on behalf of the Motor and Equipment Manufacturers Association,
"MEMA/" a national trade association representing approximately
750 manufacturers of automotive parts. The MEMA member
manufacturers produce vehicle equipment both for use as
original equipment by the automobile manufacturers, and for
sale to vehicle owners through the automotive aftermarket.
MEMA opposes granting California a waiver to imple-
ment certification test procedures which would impose restric-
tions on allowable maintenance applicable to 1980 and subse-
quent model-year passenger cars, light-duty trucks and medium-
duty vehicles. MEMA opposes the grant of this waiver because:
1.	It fails to meet the prerequisites for a waiver
under Section 209(b) of the Clean Air Act?
2.	It would be severely anticompetitive in its
effect, and
3.	It will have a detrimental effect on vehicle
emissions in the State of California.
The California proposal is inconsistent with the
federal Clean Air Act.
MEMA believes that the proposed California regula-
tions fail to meet the requirement in Section 209(b) of the
Clean Air Act that "the State standards and accompanying
enforcement procedures" must be consistent with Section 209(a)
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of the Clean Air Act. There is substantial evidence — which
I understand will be presented by the vehicle manufacturers —
that the proposal is not technically feasible when it is con-
sidered with reference to its application throughout the
vehicle's warranted life (which may even be 100,000 miles) as
well as during certification testing. Furthermore, the
restrictions on maintenance are inconsistent with Congressional
intent regarding the regulation of vehicle maintenance
practices.
While the proposed maintenance regulations are
phrased in terms of an amendment to the California new vehicle
certification test procedures, the Air Resources Board staff
has conceded that the proposal is not aimed at cleaning up
new cars, but that it is designed to minimize deterioration of
the vehicle's emission control performance, and to discourage
improper maintenance.
As such, the proposal is more aptly characterized
as the regulation of vehicle maintenance practices, which are
dealt with in Section 207 of the Clean Air Act, and which do
not come within the scope of the California exemption from
the requirements of Section 202 of the Clean Air Act.
Section 207(c) of the Act governs the maintenance of
emission control devices, and it would be inconsistent with the
regulatory scheme set up in the Clean Air Act for California
to assert jurisdiction in this area or for the EPA to purport
to grant a waiver in this area.
In enacting the Clean Air Act, the Congress made it
abundantly clear that the law was not designed to require the
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vehicle manufacturer to undertake to perform vehicle main-
tenance which had been traditionally the responsibility of
the car owner. This view was recently acknowledged by the
EPA in the preamble to its advance notice of proposed rule-
making with respect to Section 207(a) of the Clean Air Act,
in which it noted that "Congress did not intend to alter
substantially the traditional burden of the purchaser to take
care of his vehicle periodically at his expense." (See
41 Federal Register 50567, November 16, 1976.)
Since California's maintenance proposal would
clearly alter this traditional burden by, in effect, requiring
the vehicle manufacturer to assume responsibility for emission-
related maintenance for 50,000 (or even 100,000) miles, it is
inconsistent with the federal Clean Air Act, and a waiver
should not be granted.
Nor does this regulation affect only certification
testing. California officials have made it clear that main-
tenance prescribed by the manufacturer to the vehicle owner
must comport with that performed during certification testing
unless a specific waiver is granted. However, a vehicle
manufacturer could not have maintenance instructions for
California vehicles which differ from those approved by the
federal government without risking a violation of federal law.
[See, e.g., 40 C.F.R. Section 86.077-25(a)(1).] In this
situation, traditional concepts of federal preemption dictate
that the state regulation cannot be implemented. [See e.g.,
Jones vs. Rath Packing Co., 97 S. Ct. 1305 (1977); Burbank
vs. Lockheed Air Terminal, 411 U.S. 624 (1973); Florida Lime &
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Avocado Growers, Inc., vs. Paul, 373 U.S. 132 (1963); Hines vs.
Davidowitz, 312 U.S. 52 (1941) .]
Thus, since it is clear that the California proposal
would alter the federally accepted maintenance patterns of
motor vehicle owners, as well as subject vehicle manufacturers
to the risk of violating the federal and/or state laws, it is
inconsistent with the federal law, and the waiver should be
denied.
The California proposal is anticompetitive.
MEMA believes that the EPA has an affirmative
obligation to consider the competitive impact of this proposal
prior to granting the waiver requested by the State of
California. The nature of the competitive impact is a "cost
of compliance" that must be considered by the EPA in determinin
whether the proposal is technically feasible and justifies a
waiver under Section 209(b).
And, of course, the vehicle manufacturers uniformly
testified at the California Air Resources Board hearing on
May 26th that the proposal was not technologically feasible.
Moreover, the EPA is always bound to evaluate the
competitive impacts of its activities, and a failure of the
EPA in this case to consider that impact would be an abroga-
tion of its responsibilities.
In this regard we would refer the agency to Inter-
national Harvester Co. vs. Ruckelshaus, 478 F. 2d 615 (D.C.
Cir. 1973); Northern Natural Gas Co., vs. F.P.C., 399 F. 2d
953 (D.C. Cir. 1973); McLean Trucking Co. vs. United States,
321 U.S. 67 (1944).
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The competitive impact of the California anti-
maintenance proposal would be severe. Either prohibiting
maintenance all together or requiring that all maintenance be
performed by the franchised dealership will inevitably result
in a substantial loss of business for automotive parts manu-
facturers, independent garages and other repair outlets.
These repair facilities employ more than 60,000
people in California, many of whom would lose their jobs if
repairs were not permitted at their current places of employ-
ment.
The adoption of periodic inspection and maintenance
throughout California (assuming that it is actually adopted
and implemented) would not minimize these competitive disloca-
tions. Even if a mandatory vehicle inspection program is
implemented, the maintenance proposal would mean, in effect,
that the maintenance on emission control system-related com-
ponents resulting from inspections would not be performed at
the independent garages. This feature is not designed to
reduce the adverse impact upon the automotive service industry.
Also, with respect to the competitive implications of
the California proposal, we would like to call the EPA's
attention to the March 16, 1977 comments submitted by the
Department of Justice to the EPA in response to the proposed
regulations to implement Section 207(a) of the Clean Air Act,
published in the Federal Register on November 16, 1976. The
Department of Justice expressed great concern over the competi-
tive impact of the warranty on the automotive service
industry, and suggested that only those components which are
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installed in the vehicle specifically to control emissions
should be covered by the warranty. The California proposal,
however, would create a "warranty" covering a broad range of
products beyond those directly considered emission control
systems. MEMA agrees with the concerns expressed by the
Department of Justice, and believes that they should be
carefully considered by the EPA prior to granting the waiver
requested by California,
The California proposal would harm air quality.
As to the proposal's effect on air quality, MEMA
submits that the effect on motor vehicle emissions of the
proposed California regulations must be examined by the EPA
in order to determine whether the waiver should be granted,
since a waiver is appropriate only if EPA determines that the
State standard is "more stringent than applicable federal
standards," and is required in order "to meet compelling and
extraordinary conditions." If the effect upon emissions is
likely to be counterproductive, it can hardly be said that
the state standard is more stringent and will meet compelling
and extraordinary conditions. This is not merely quibbling
about state policy; it is an essential review to determine
whether the Clean Air Act criteria have been met. Cf. 36
Federal Register 17458 (August 31, 1971).
Recent studies by numerous government agencies and
private organizations, including the EPA, have concluded that
additional maintenance rather than less maintenance is
required to reduce vehicle emissions and increase fuel economy.
See, e.g., Testimony of Douglas M. Costle, EPA Administrator,
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before the Subcommittee on Health and the Environment, House of
Representatives Committee on Interstate and Foreign Commerce
(April 18, 1977).
However, the proposed regulation would minimize
maintenance without providing a countervailing assurance that
vehicles-in-use actually continue to meet new vehicle standards
If adopted, and if it results in encouraging reduced main-
tenance by vehicle owners, the California proposal may well
have the effect of increasing emissions from vehicles-in-use
rather than decreasing emissions.
In this connection it should be noted that there is
no evidence of which we are aware which indicates that the
use of independent replacement parts has an adverse effect
upon vehicle emissions. Given this fact, it is evident that
reducing the use of these parts *— which will be the effect
of this proposal — is unlikely to have a beneficial effect
upon vehicle emissions, or "to meet compelling and
extraordinary conditions" in the State of California. Thus,
grant of a waiver for this proposal would be inappropriate.
In sum, MEMA opposes the grant of a waiver to the
State of California to implement certification test procedures
applicable to 1980 and subsequent model-year passenger cars,
light-duty trucks, and medium-duty vehicles which would impose
a restriction on allowable maintenance, since the California
regulation does not meet the requirements for a waiver con-
tained in Section 209(b) of the Clean Air Act.
On behalf of MEMA, I want to express my appreciation
for the opportunity to appear here today. I will be pleased
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to answer any questions.
CHAIRMAN JACKSON: Thank you, sir. On Page 5,
starting with the discussion of the competitive impact, the
California maintenance proposal will be severe, a conclusion,
unsupported in my judgment by anything definitive with regard
to from whence that conclusion was drawn.
The question is: Do you have an analysis of how
many people would be put out of business or how many people
would be out of work or the economic impact of this approach
on —
MR. JOELSON: Well, at this point all any of us can
do is estimate the impact of the proposal. But it is very
clear that the proposal would largely virtually eliminate
maintenance, emission-control related maintenance on vehicles
for the 50,000 miles, or, indeed, for the hundred thousand
miles if the proposal that will be before us tomorrow carries.
We are talking about a very substantial part of
the aftermarket industry's business. We are talking about
the emissions-related parts — the ignition industry, the
spark plug industry, the filter industry are a very sub-
stantial part of the aftermarket's product line. And we are
talking about repair facilities and garages and independent
service facilities throughout the state who, as I understand
it, number some 60,000 people, and whom one would reasonably
conclude many of whose occupations would be put in jeopardy
by the adoption of this proposal. But if there is no main-
tenance work to be done, there is nothing for these people to
do.
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CHAIRMAN JACKSON: I do not think they are saying
that no maintenance work would be required. It is just a
limit on it. The question is: the incremental reduction
associated with these regulations in maintenance would result
in what economic impact? And, so far, I have seen nothing
other than a speculation that it would be severe. What is
"severe"? I don't know. What I am looking for is some
sort of quantification, some sort of "prediction," if you will,
based on reasonable assumptions, but —
MR. JOELSON: I think that — Excuse me.
CHAIRMAN JACKSON: — we don't have anything before
us.
MR. JOELSON: Yes, sir. I think if I gave you any
sort of a number estimate that I think that would be
irresponsible. I think that all any of us can do at this
point is to estimate whether this is a serious matter, whether
the impact would be serious. And it is clear that it would
be, that maintenance that would be permitted is very, very
limited. I think California concedes that it's limited.
That's California's purpose, in fact, is to make it limited.
Now, the vehicle manufacturers have a choice —
they can either produce a maintenance-free car, and if they
are able to do so, certainly these independent people will not
be able to service the cars, or, at their option, they can
basically pay for the maintenance, which in theory is not
permitted but California has indicated can be done, if the
vehicle manufacturers rather than the consumer pays for the
maintenance.
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Now, it is not conceivable, and we would not urge
that the vehicle manufacturers would pay for the maintenance
and have the maintenance done at independent facilities. I
think that they themselves will testify that if they are to pay
for the maintenance, they would contemplate it being done at
the franchised dealer facilities. Therefore, what you are
talking about on the one hand is a drastic reduction in the
amount of maintenance being done on cars and a drastic
reduction in the amount of work being done by independent
facilities. Now, I think from that we can conclude that
there will be a severe impact.
CHAIRMAN JACKSON: No, sir.
MR. JOELSON: You would not consider that?
CHAIRMAN JACKSON: Because I do not know what
"drastic" means. I do not know what drastic means in terms
of what. Are we talking about $10, $5, three people, 30
people? I mean, this is rhetoric. You talk about
irresponsibility. It would be irresponsible for me to
conclude what you are saying here is relevant at all, because
there is nothing other than speculation about what would
happen. There is no quantification about how much maintenance
is not going to be done versus how much is done in terms of
preponderance of business that is done normally.
Another question: What if the manufacturer starts
making cars on their own that do not require maintenance?
MR. JOELSON: Well, that would be a fact of tech-
nology that the industry would have to live with. It would
not be done by legislative fiat.
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California certainly has not quantified what the
impact on the industry would be; they just sort of casually
say that there will not be a serious impact on the industry.
None of us have numbers. The agency can't wait until there is
blood on the floor to quantify it. We can't wait until there
is blood on the floor to quantify it. We have to take a
reasonable look at what the probable impact will be. Main-
tenance statistics really do not exist significantly, certainly
maintenance statistics as to something that has not yet
happened and will not happen unless you grant the waiver and
this move goes ahead. None of us have these statistics. We
have to draw reasonable conclusions. It does seem to me and
to our industry very reasonable that when you virtually
eliminate maintenance through legislative fiat, you will have
a very drastic impairment on an industry which is relying on
that maintenance for its livelihood.
CHAIRMAN JACKSON: "Virtually eliminate" and
"drastic." I don't know that they have said anything about
"virtually eliminate" — talking about emission-related main-
tenance. A portion of that is the maintenance for which you
say would be virtually eliminated. Is that all of it? Is
that all of the maintenance done —
MR. JOELSON: It is the emission-related maintenance,
yes.
Now, to the extent that these people are fixing
doors, I assume that would not be impacted. To the extent
that they make ignition products, yes, they would be impacted.
To the extent that they make spark plugs, yes. To the extent
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that they make filters, yes.
The whole purpose of the California proposal is to
reduce, if not eliminate, maintenance as drastically as
possible. That is the purpose of their proposal.
I do not think that the agency can on the one hand
understand what they are trying to do and on the other hand
tell us that apparently nothing very significant is intended
here. Obviously something very significant is intended by
California.
CHAIRMAN JACKSON: I am certainly not trying to deny
that you have something significant to tell us. I am just
telling you that it is not coming across. I am not sure
whether you are in a position to provide us information that
would give us a basis for understanding what "significant" and
"severe" are. That may be very revealing if we could.
I think that everything that we do, we have to
predict what the outcome of it is going to be. We cannot wait
until it's done and then see what the impact is going to be.
So, our general motive and the general way we
operate is to use reasonable assumptions, and to try to
quantify, based on what has been proposed, what the impact
will be.
Now, it may be that your organization cannot do
that. But, if it could, it would certainly add a lot of
flesh to the bones that you have been rattling about here.
MR. JOELSON: All right. I will see what we can do.
I do want to make the point here as tactfully but as bluntly
as I can, and that is that EPA has a rather broad concept of
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what emission-related maintenance is and what the emission-
related parts are, and the agency has published lists and
appendices that go on in great detail as to what the emission-
related parts are.
It is these parts which are a substantial part of
the maintenance of an automobile and of the functioning part of
an automobile that California would eliminate the independent
industry from.
I think the agency is able to gauge the significance
of this, the extent of it, and the gravity of this in a general
sense. I would be very surprised if it couldn't.
Now, having said that, I will go back and see what
I can furnish you in terms of figures.
MR. KRUSE: Let me ask a question which might help
shed some light on this. Your member companies develop their
own products and probably develop their own recommendations to
vehicle owners for a change of these products, like air filters,
oil filters, materials of that sort.
How do they determine these intervals that they
develop as a recommendation for the vehicle owners?
MR. JOELSON: Well, you really have to discriminate
between the parts that are sold to the original equipment
manufacturers for sale by them or for installation on the one
hand, and the ones that are sold by our members direct into
the aftermarket channels.
Now, as to those sold to the original equipment
manufacturers, they may give them some advice and recommenda-
tion. Basically, it is up to the vehicle manufacturer to
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determine what recommendation to make.
With respect to the parts that are sold directly
into the independent channels, the manufacturer might give
some guidance. Otherwise, it would be up to the garage man
using, basically, the recommendations developed by the car
companies for that car as to when replacement should take
place.
MR. KRUSE: So, your member companies do not in
general supply information additional to that supplied by the
original equipment manufacturer?
MR. JOELSON; They would supply information pertinent
to that part. Now, depending on if that part can fit a number
of cars, they might not give information as to just when
replacement should be in that car. They would give information,
say, with respect to a particular filter, a particular ignition
point, how to install it, that sort of thing. They might or
might not give a warranty on it, or some specific undertaking
on it.
MR. KRUSE: What experience do they use to develop
this advice that they give either to the original equipment
manufacturer or to the consumer?
MR. JOELSON: With their own testing and their own
knowledge of their product based on testing and experience in
marketing the product.
MR. KRUSE: Do they have information which would tell
them whether the consumer does follow their advice?
MR. JOELSON: Sometimes I imagine they get feedback
from the field, sometimes they don't. It is a very general
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answer, but, as you probably know, in this industry, given the
very lengthy chain of distribution and the levels of distri-
bution that the manufacturer is from the consumer, sometimes
the information does not flow back up.
CHAIRMAN JACKSON: On Page 6 you start talking about
the speculative harm in air quality resulting from this pro-
posal. And, in making your point, you quote from Administra-
tor Costle's testimony before the Subcommittee on Health and
Environment.
MR. JOELSON: Yes.
CHAIRMAN JACKSON: I think that is a totally
inappropriate use of that quote, in that what he was talking
about there was the need for the performance of maintenance
that is required, as contrasted to performance of more main-
tenance .
MR. JOELSON: Well, we are not advocating unnecessary
maintenance. I think that much of the argument between
industry on the one hand and California on the other is as to
whether this is necessary maintenance.
Now, our viewpoint, based on our own conclusions and
the testimony of the manufacturers is that the maintenance-free
car is not possible, that, in fact, there is necessary main-
tenance, and that the real effect of this proposal if adopted
will be for the vehicle manufacturers, and, eventually, the
consumer, to pay for this maintenance that is being done.
I think that the use of Mr. Costle's statement is
appropriate. He is saying that the agency believes, and I
think the agency has said it in other contexts, that
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maintenance, when properly performed — and, obviously, when
necessarily performed — is beneficial to air quality. The
California proposal basically says we are going to eliminate
maintenance, without really a substantiated finding that this
can be done without a harmful effect on air quality.
I do not think we are disagreeing with Mr. Costle,
and I do not think we are quoting him out of context.
CHAIRMAN JACKSON: If you insist on saying that, I
say you are distorting his words and you are using
inappropriately what he has said. He said that where main-
tenance is required, it should be performed. He is not saying
that more maintenance should be performed if it is not needed.
MR. JOELSON: Well, I am not saying that either.
CHAIRMAN JACKSON: The point you are making about
degradation in air quality that results by reducing the amount
of maintenance —
MR. JOELSON: Well, I am not here to urge unnecessary
maintenance, and certainly my members are not. The gravamen
of our complaint is that there is unnecessary maintenance, and
that the effect of this proposal will be a shift to maintenance
from one segment of industry — that is, our people who are
doing it and depending on it for their livelihood — to the
vehicle manufacturers, and that this will have a competitive
impact, and that there will be a shift in business, if you
will, which is unjustified. It is necessary maintenance. I
am not advocating unnecessary maintenance.
CHAIRMAN JACKSON: You say it is "unjustified."
MR. JOELSON: The shifting, yes. The shifting
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of this burden, and also this benefit from the parts industry
to the vehicle manufacturers is unjustified. It really is
just a shift of maintenance obligation. Congress did not
intend that.
CHAIRMAN JACKSON: What if they make a car that can
run for 50,000 miles without any emission-related maintenance?
And we have concluded that where maintenance is required,
emission-related maintenance is required, the failure to get
that maintenance will result in the degradation of air quality.
That is what Mr. Costle is talking about.
MR. JOELSON: Wait a minute. 1 am sorry. Your
premise is that they produce a car which does not require . . .
CHAIRMAN JACKSON: Does not require —
MR. JOELSON: Emission-related maintenance—
CHAIRMAN JACKSON: Within 50,000 miles, emission-
related maintenance, legitimately does not require it.
MR. JOELSON: Right.
CHAIRMAN JACKSON: It will operate in use, in normal
use, will not require maintenance.
MR. JOELSON: Right. Well, if EPA makes that
finding that would be a different matter, but EPA has not made
that finding. In fact, a national program is being run on
the assumption that reasonable and necessary maintenance does
continue to be reasonable and necessary. It is a finding that
California has made, and which we say is unsubstantiated.
CHAIRMAN JACKSON: I would say that your conclusion
drawn from the statement by the Administrator is also unsub-
stantiated and highly speculative and unfounded as far as I can
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see.
MR. GRAY: I think perhaps to go further in that
regard, the studies that were referenced here, not only the
studies by the EPA — were performed on older vehicles, past
vehicles. And, indeed, some of the problems that existed with
those vehicles, those problems being, of course, higher
emissions than the certified value, were determined to be
because of improper maintenance.
Now, there are two approaches that can be taken to
solve this problem. One is to improve the quality and perhaps
the quantity of maintenance. That is one program. And I think
the ARB has indicated they plan to pursue the implementation
of that strategy. The other possibility is to apply existing
technology. We can argue separately about whether or not that
technology is available, and I am sure that we will get into
that in depth. But it certainly is an option in order to
apply technology in order to prevent the need for maintenance.
Therefore, these problems in the field could be eliminated
through that approach as well.
MR. JOELSON: All right. If the day comes that
there is a maintenance-free car as a practical matter, and a
car can be built which is maintenance free, then I think our
people who are in the maintenance business will have to take
their lumps. But that is not the situation here. The situa-
tion here really, as a practical matter, and we — the vehicle
manufacturers will testify that the maintenance-free vehicle as
a practical matter is not here, and that the effect of this
proposal will really be to shift maintenance which is now
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performed by our people to them. The same maintenance will go
on, it will simply be done by other people. That, we claim,
is inappropriate.
CHAIRMAN JACKSON: They can make that argument, the
technological argument.
MR. JOELSON: They will be doing that. I am not in a
position to do that. I am basing my testimony in part on
their argument.
MR. GRAY: But you will concede that if it can be
reasonably determined that technology is available to limit
the necessity for maintenance of emission-related components,
then your judgment of an adverse impact on emissions would not
come about?
MR. JOELSON: If they are, in fact, able to produce
a car which does not require maintenance, then the fact that
there is no maintenance on it, by definition, would not impair
air quality. Yes.
My argument obviously is that, as I understand it
and as I believe they will testify, the day has not yet
arrived, and that a reduction of maintenance will have an
adverse effect on emissions rather than a beneficial one.
CHAIRMAN JACKSON: Again, I would request that if
there is any way you can, using reasonable assumptions and
projections, quantify your speculation about increased
emissions as a result of these regulations — and, back to my
argument about speculative impact on competition and jobs and
independent businessmen, anything that you can give us that
would support your conclusions there would be very helpful.
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MR. GRAY: Indeed, if we can perhaps make that
challenge more pointed. I think some of these studies that
you referenced have indeed shown that maintenance in itself
has resulted in high emissions of in-use vehicles. . .
MR. JOELSON: Proper maintenance?
MR. GRAY: Improper maintenance —
MR. JOELSON: Oh, improper maintenance. Yes. I am
not arguing that improper maintenance is better than no main-
tenance at all, and I am not arguing in favor of improper
maintenance.
MR. GRAY: But the context here is that additional
maintenance is better. And what the challenge is, that those
studies concluded that with vehicles with low mileage, that
maintenance was performed inappropriately as it relates to
emissions performance. Whether that be because of improved
vehicles performance or not is a separate issue. But that is
the basic result of those programs.
CHAIRMAN JACKSON: Thank you, sir.
MR. SNOW: My name is Stephen F. Snow. I am the
Executive Vice President of the Northern California Motor
Car Dealers Association, and I am here as spokesman for the
California Automobile Dealers Association. Statewide, our
members number approximately 2,000 franchised new car dealers,
import and domestic.
They are small businessmen who employ some 73,000
California citizens, approximately 5.2 percent of the total
work force of the state. Our members' payrolls of $906
million represent 9.1 percent of the total of all payrolls in
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California. Their sales are just under $10 million —
14.5 percent of the state total of all retail sales.
I am here today because someone from our industry
has to stand up and tell it like it is out there in the real
world. Not just on the question of allowable maintenance
regulations and more stringent emission standards, but on
their potential and actual damage to our industry and the
citizens of this state.
Like many other small businessmen, our members find
themselves caught between our manufacturers, who must face the
realities of doing business in California, and the state
itself — in this case, the California Air Resources Board.
Obviously, our dealers and our trade associations
cannot fight the manufacturers' battles for them. We do not
have the technical or legal expertise to deal with an agency
that puts out pounds and pounds of scientific and technical
data such as the file I have in my briefcase over there.
In the last three months I measured on my bathroom
scale this morning four and a half pounds of paper work,
which we can't begin to cope with.
We can, however, tell you what has happened to our
industry and the cars we sell. We can tell you what it looks
like in the marketplace and on the street.
Emission standards in California today have resulted
in fewer available cars that cost more to buy, use more gaso-
line and run less efficiently than comparable cars in the
other 4 9 states.
The Air Resources Board suggests that these are
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small prices to pay for the benefits we enjoy. We challenge
the Board to demonstrate measurable improvements in health
benefits since the imposition of the latest standards. And
we raise the question, "Are the prices really so small?"
Assume our dealers sell a typical 900,000 new cars
in California this year of 1977:
1.	If the additional cost for each 1977 California
equipped car is an average of $50, our new car buyers will pay
an extra $45 million for this additional increment of regula-
tion.
2.	If the average net cost per car of "maintenance-
free" components is only another $10, Californians will have
paid $9 million for this item.
Now, I might add at this point as an aside, that our
dealers are not interested in a monopoly on maintenance on
automobiles in California. In fact, some of our dealers have
raised the question of the impact of these maintenance-free
regulations on the individual who will buy the car and maintain
it himself at his own cost. Some prefer to do this.
Apparently many of them do.
3.	Until the last legislative session, literally
thousands of Californians were going out of state to buy
vehicles which cost less, performed better and were more
economical than the same California-equipped vehicles.
Since more than 40 percent of the domestic product
lines were, and are still, unavailable in California — This is
engine and transmission combinations — many of our citizens
went out of state to buy these vehicles — Oregon, Arizona
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and Nevada.
Now, even with laws making this activity unlawful,
the Air Resources Board has failed to enforce reported viola-
tions .
4. If your EPA booklets are correct and our
California cars are 10 to 12 percent less fuel efficient than
comparable 4 9 state cars, who can calculate the tens of
millions of additional gallons of gasoline we have burned over
the past three or four years to meet these questionable
standards — compared to a fleet from out of state.
From time to time I am invited to speak to Rotary
and Kiwanis clubs around California. I have yet to meet a
motorist who is aware that this booklet (indicating) exists.
They think that this is the only one, the California Mileage
Book. They do not know that 49 state cars have different
mileage figures and different annual costs from the EPA. They
are surprised to learn that this booklet actually exists.
I might add that we are supporting legislation
which would make the Air Resources Board responsible to our
State Legislature for changes in excess of federal standards
after 198 0. We are giving these booklets to the legislators,
because many of them do not know that the same 1977 car that
they drive here in California has a different mileage figure
than that in Arizona, Nevada or Ohio.
We submit that the time has come for the Environ-
mental Protection Agency to take a closer look at the impact
of California's separate and unusual standards on the people
and the economy of our state.
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California is a unique place, and changes in our
economy can be abrupt and dramatic. Today, our unemployment
is still dramatic. Two years ago Bethlehem Steel gave up on
the construction of a production facility in Northern
California. Last month Dow Chemical did the same. Recently
some 4,300 people were laid off at steel mills in Fontana,
California.
The loss of the B-l Bomber Program has dealt a
severe blow to our airframe industry, and Director Lance of
the Office of Management and Budget, has warned of even more
severe cuts in California's aerospace industry.
In our industry, where people sell these cars, each
year fewer dealers with fewer employees sell a smaller selec-
tion of increasingly expensive cars made by fewer assembly
plant employees. We question the benefits which the Board
says will accrue to California when they are measured against
so many costs to our industry, our citizens and our state.
We support and urge tough, uniform standards for all
50 states so that our industry, our employees and our
customers will no longer be the guinea pigs of the country.
We respectfully suggest that California's special
status be reviewed before further, more expensive standards
and regulations are imposed.
Thank you.
CHAIRMAN JACKSON: Mr. Snow, I guess you are aware
of the fact that whether or not California has its own program
has been decided by Congress.
MR. SNOW: Yes, sir.
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CHAIRMAN JACKSON: With certain administrative
functions delegated to the EPA, those administrative functions
being to make a determination on an adoption with regard to
certain criteria for waiver.
MR. SNOW: Yes.
CHAIRMAN JACKSON: And those include lead time,
technology, taking into consideration the cost of compliance.
It seems to me that while your points certainly seem
tc have merit in another forum, they do not directly apply to
what our task is in terms of reviewing a waiver request.
We have not put ourselves in the position of judging
the wisdom of California's actions in terms of public policy,
but have been directed by law to make certain findings with
regard to fairly narrow technical issues with regard to what
they want to do. The cost of compliance you have touched on
to some extent, and while that may be relevant, the rest of
your argument I think is certainly something the California
State Legislature might want to consider, but something for
which we are not customarily expected to handle, and do not
intend to start now.
I do that by way of trying to scope to you what our
concerns are, which I feel are not all that strange. This
business about fuel economy, for example, is a cost, a
societal cost being paid for cleaner cars in California. That
is a judgment that has been made by the leadership of
California in the context of a right that they have under the
Clean Air Act.
I do not want you to have the impression that we
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can in any way make judgments about the wisdom of what
California is doing —
MR. SNOW: Well, if I may ask you, am I incorrect in
my understanding that the economic feasibility of these
successive increments of standards are not an area of concern
to the Environmental Protection Agency? That is, the public
cost of these are not your concern?
CHAIRMAN JACKSON: The area of concern is to take
into consideration the cost of compliance within the lead
time available. That is the words of the Act.
As we said before, the balancing judgment about the
worth of what they are doing versus its cost is largely up to
California. We attempt not to make judgments in that area.
If the leadership of California is to be brought to task about
the judgments they are making, this is not the forum to do it
in. I am not suggesting the proper forum. I do not know that.
But it is not here.
Certainly we can be concerned as citizens, and we
have an obligation to take into consideration certain costs.
But these public policy issues, it has been clear to us that
that is not what Congress had in mind for us to debate about.
MR. SNOW: Well, I am truly sorry to hear you say
that, because I think a lot of people who are on the other end
of this argument happen to have the feeling, as I have had,
that the one sort of check in the check-and-balance system
that we have had is the opportunity of challenging the Air
Resources Board before the EPA when they apply for waivers on
these things, in effect, almost reporting to you on their
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conduct of these programs in California as a part of their
responsibility to you.
It would seem to me of interest to you that the
California Air Resources Board would have the public believe
that our cars get better mileage, that our Governor sent a
telegram to our Congressional delegation during the EPA
hearings last year and told them that California cars get
better mileage or equal mileage than cars elsewhere in the
country. This is in direct conflict with your book. We
think this is an important item to be challenged publicly, and
this is the only place we can see to go other than our own
State Legislature, are these periodic times when they must
"V
come before you and renew the waiver, apply for the waiver of
their standards.
This is where we see the impact of it. The battle
ground that you conduct with these people out here is way out
of our bailiwick. Our people are dealing with the guy that
buys the car, has the problems with the way it runs, with the
maintenance problems on the car.
We would suggest this is an area that is generally
overlooked, that when all of you get through doing what you
do here, the person who pays for whatever mistakes are made,
if any are made, is the guy who buys that car and our dealer
who sells it to him.
So this is why we come to you with our questions
about the costs of these things, and suggest that perhaps you
should consider those at the same time you look at the tech-
nological feasibility of these things.
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And we appreciate the opportunity of a forum to do
this.
CHAIRMAN JACKSON: I certainly appreciate your
coming. I am not for a moment suggesting you do not have a
cause. I do not want to leave you with the impression that
we are going to either champion or deny your cause; it is just
not within our charge in a very parochial sense, I suppose,
but, nevertheless, it is certainly important. I can sympathize
with you there.
Thank you.
MR. WEAVER: I am Eugene Weaver, and I will make a
statement for Ford. We brought with us a revised statement
from what you were mailed two days ago, and I hope you have
that before you now.
We just made a few corrections, filled in a few
blank spaces, corrected some typographical errors.
On Page 4, there should be words in the "Remarks"
column, for example, which was blank.
MS. Helen Petrauskas is also here and will also make
a statement after I have completed mine.
Ford Motor Company has presented testimony on several
occasions to the California Air Resources Board concerning the
regulations that are the subject of this waiver hearing. In
this prior testimony, we have indicated that it is our plan to
reduce the amount and complexity of maintenance recommended to
owners, independent of any regulatory action by California.
We have also indicated that our future plans for continued
reduction in maintenance requirements result from substantial
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competitive market pressures. On this basis it was and con-
tinues to be our position that the unique California main-
tenance regulations are not needed and will only add to the
present, over-complex regulation of the automobile industry.
Notwithstanding these considerations, the issues at
hand in this proceeding are the need, lead time, feasibility,
and consistency of the proposed regulations. In considering
these regulations it is important to differentiate limitations
imposed on maintenance performed during certification and
maintenance recommended to vehicle owners. It is only by
considering them separately that a proper assessment can be
made of feasibility, consistency and need. For the reasons
noted in this statement and in the legal review that will be
presented, it is our position that EPA cannot grant a waiver
of preemption as requested by California. The key elements
of our position are as follows:
First, unless EPA eliminates the requirement to use
MMT in certification fuel, the 1980 standards adopted by
California are not feasible, with or without the new main-
tenance limitations. Further, unless manufacturers are per-
mitted to recommend additional maintenance for production
vehicles operated on fuel with some level of MMT, it is not
feasible to project compliance with in-use requirements.
Unfortunately, too little is known about the effect of levels
of MMT other than those required by EPA to permit anyone to
speculate which limitations on maintenance would be feasible.
Second, the certification maintenance restrictions
adopted by California are otherwise inconsistent with Section
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202 of the Clean Air Act in that they appear to prohibit
maintenance which is expected to be performed in the field.
Third, the in-use maintenance restrictions are not
only inconsistent with Section 20 2 but conflict with the
express requirements of Section 207(c)(3) as well.
Finally, CARB has, failed to demonstrate the need for
the wholesale restrictions on maintenance imposed by these
regulations.
1. Lead time and feasibility.
As indicated earlier, Ford has plans to meet
applicable California certification standards, even given the
new maintenance restrictions, by the 1980 model year, assuming
no major changes in certification fuel. EPA has specified,
however, that 1979 and subsequent model year certification fuel
must contain .125 grams per gallon manganese in the form of
MMT. Ford's experience to date, as reported to both CARB and
EPA, indicates that the presence of this additive in the fuel
will lead to increased maintenance requirements, including
more frequent replacement of spark plugs and possibly exhaust
gas sensors. At the .125 grams per gallon level, Ford
believes compliance with standards of .41 HC, 9.0 CO and 1.0
N0X is not feasible. CARB's recent action prohibiting
addition of MMT to fuel is meaningless if manufacturers cannot
obtain federal certificates for vehicles intended for sale in
California. Ford does not know at this time what standards and
what level of maintenance restrictions are feasible at lower
levels of MMT than those presently specified by EPA. We do
know, based on testing done to date, that use of MMT may result
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in increased hydrocarbon emissions, increased backpressure
and misfire which could necessitate additional maintenance of
the catalyst system, spark plugs and oxygen sensor.
Thus, it is Ford's position that any waiver to allow
restrictions on certification maintenance cannot be granted
unless:
1.	It is accompanied by a contemporaneous elimina-
tion of the requirement to use MMT in certification fuel, and
2.	It is amended and/or clarified as appropriate
to permit performance in certification of maintenance which
is expected to be performed in the field. This latter condi-
tion relates to the issues of need and consistency discussed
in detail later in our statement.
With respect to restrictions on in-use maintenance,
a grant of waiver is wholly improper on grounds of lack of
feasibility.
First, regardless of what happens in certification,
in-use requirements cannot be met unless manufacturers are
permitted to recommend additional maintenance in those cases
where gasoline containing MMT is used.
Second, the following maintenance items are
reasonable and necessary to help assure the proper functioning
of 1980 and subsequent model-year vehicles and cannot be pro-
hibited by California.
This list includes, and I will only indicate the
items at this point:
Check cooling system, hoses and clamps.
Replace coolant.
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Replace crankcase emission filter.
Replace PCV valve.
Check thermactor dump valve.
Check engine idle speed at 7.5000 miles for V8
engines.
I would like to add in addition to those, two addi-
tional items:
Check and adjust belt tension.
Check the exhaust control valve on one engine, the
300 CID engine.
2. Need.
The issue of need is significant for two reasons.
A demonstration of need is an express prerequisite to a grant
of waiver under Section 209. Further, need is the controlling
issue with respect to any prohibition on certification main-
tenance where such maintenance is expected to be performed in
use. It is axiomatic that a need for this certification
restriction cannot exist where the maintenance CARB seeks to
prohibit is performed in real life.
Ford would agree that maintenance restrictions in
certification are proper when it is clear that:
1.	Failure to perform maintenance has a deleterious
effect on emissions, and
2.	Such failure exists in the field. There are
situations such as with the air/fuel ratio adjustment where it
has been shown to be a major field problem. Ford agrees that
this type of maintenance should be eliminated and has taken
steps to make the necessary changes. There are other
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restrictions proposed by CARB, however, where improper main-
tenance has not been identified as contributing to an air
quality problem.
Restrictions on spark plug changes, air cleaner
changes, and many "check-and-adjust if necessary" operations
are examples. In most of these cases more frequent maintenance
is clearly going to improve vehicle function, not impair it.
Finally, a grant of waiver with respect to in-use
maintenance limitations is improper not only because of lack
of feasibility but also because these requirements are other-
wise wholly inconsistent with the provisions of the Clean Air
Act. As indicated earlier, Ford's conclusions with respect to
the propriety of the waiver for both certification and in-use
maintenance are founded on an analysis of federal certification
and in-use requirements and the relationship of any unique
California standards and procedures to these requirements.
Mrs. H. 0. Petrauskas will review this relationship
in detail because it is essential to an understanding of the
position we have just discussed and a proper disposition of
the matter before you today.
CHAIRMAN JACKSON: Before you start, do you under-
stand what the conference did on MMT?
MS. PETRAUSKAS: I have not seen the language,
Mr. Chairman.
CHAIRMAN JACKSON: But would it make a difference in
terms of this presentation here if MMT were banned and taken
out of certification, gasoline — banned in 1978 and taken out
of certification gasoline for *79?
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MS. PETRAUSKAS: Well, I think as Mr. Weaver said in
his statement, we think that the grant of waiver should be
accompanied by a contemporaneous decision on the part of EPA
to no longer require MMT in certification fuels. For that
narrow purpose, it is irrelevant whether EPA does it because of
findings it has made before or after the current Clean Air
Amendment.
CHAIRMAN JACKSON: But, my point is, largely relates
to MMT and use in gasoline.
MR. WEAVER: Yes.
CHAIRMAN JACKSON: And if we assume it is gone, one
way or the other, then we can put the shoe aside. . .
MR. WEAVER: That is part of it, yes.
MR. PETRAUSKAS: The ARB regulations before you
today present unique and complex legal issues.
The analysis of these requirements is made more
difficult by two elements:
1.	The need to analyze certification and in-use
limitations separately because of the different technical and
legal issues attendant to each;
2.	The internal inconsistency contained in these
regulations.
With respect to certification maintenance, EPA's
and therefore CARB's authority to prescribe the manner in
which certification vehicles are maintained is constrained by
the following: certification test procedures must be:
Technically sound.
Reasonably related to achievement of improvements in
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air quality.
Necessary to achieve such improvements and
Must result in requirements which are technologically
feasible in the lead time remaining.
In the lexicon of waiver proceedings, each of these
requirements is either an issue of need or consistency with
Section 202(a) of the Clean Air Act.
The issue of feasibility, Dr. Weaver has covered.
I think the question you just asked, Mr. Jackson, clarifies
that.
Consistency with applicable federal requirements.
The regulations adopted by California would, with
few exceptions, appear to prohibit maintenance, even where it
can be shown that maintenance is likely to be performed in
actual use. This, of course, is inconsistent with applicable
requirements and, indeed, is in conflict with the central
notion on which certification is based — the testing of proto-
type vehicles under conditions which as closely as practicable
approximate real world use. When coupled with CARB's
restrictions on recommended maintenance, this certification
maintenance restriction is particularly illogical. Thus,
manufacturers are prohibited from recommending maintenance and
prohibited from performing such maintenance during certifica-
tion. It is the ultimate bootstrap, of course, for CARB to
prohibit certain recommendations to customers on the one hand,
and then to assert that a similar limitation is appropriate
during certification, because customers are not likely to
perform maintenance if it is not recommended by the manufacture!
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Any grant of waiver should therefore be conditioned
such that manufacturers be allowed to perform, during certi-
fication, any maintenance which is likely to be performed in
the field. As Dr. Weaver noted, this condition flows not only
from the requirement of consistency but the requirement of
need as well.
In this regard, it should be noted that the CARB
regulations before the EPA at this hearing are internally
inconsistent. I think the best way to explain it, there is
Exhibit 1, which outlines this, but maybe the easiest way to
do it, if you would look at your June 9th letter, and that is,
I believe, the letter from Mr. Macomber to the Administrator.
If you look at Attachment C, on the first page of that
attachment, Attachment C, it indicates that ARB is adopting
the comparable, the comparable federal procedures except where
otherwise noted. That is noted in the preamble paragraph of
Page 1 of that procedure.
If you then turn to Page 4 of the procedure, you
will note that Subsection (a)(1) of Section 86.078-25 has been
amended as shown there. The only time there is an opportunity
for a showing that maintenance will be performed in use is
with respect to the three items listed in Subparagraph 7.
You will note on the next page that Subparagraph
(a)(3) is amended, Subparagraph (a)(4) is amended. No other
amendments are made to that particular section.
If you look at the comparable federal regulations
which are adopted by reference in the California procedure,
you will find Section (a)(5), which is quoted on Exhibit 1 a
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little ways up from the bottom. It says the Administrator
will — mandatory language — Administrator will approve the
performance of such maintenance if the manufacturer makes a
satisfactory showing that the maintenance will be performed on
vehicles in use.
So you have somewhat of a conflict. Subparagraph
(a)(1) would limit the opportunity to make a showing of likeli-
hood that in-use maintenance will be performed to certain very
specific items during the first 5,000 miles.
Subparagraph (a) — that should read 5 — of course,
imposes no such limit.
No explanation of this conflict is provided in any
of the documents submitted by ARB for the record of this
hearing.
I am on Exhibit 1 — And I think Mr. Gray clarified
some of that was clarified in response to a question that Mr.
Gray asked. If you look at Exhibit C to the June 9th letter,
you will note that on its face the procedure applies 1980 and
subsequent model passenger cars, light-duty trucks, medium-
duty vehicles.
If you will look at Page 2 it says that Subparagraph
(3) (g) does not apply to 1980 model light-duty and medium —
light-duty trucks and medium-duty vehicles. Presumably,
therefore, Subparagraph (:h) would apply to such vehicles.
I do not think that is what is intended. And as I understand
Perhaps Mr. Gray could clarify — if I understand the answer
you got to your question this morning was that 1981 is the
effective date of the requirement with regard to light-duty
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trucks and medium-duty vehicles.
MR. GRAY: I think that was clearly the answer.
MS. PETRAUSKAS: In summary, assuming satisfactory
resolution of the feasibility issue, a waiver of preemption
with respect to certification maintenance requirements can
only be granted if the CARB regulations mean what they say —
namely, maintenance may be performed in certification if it is
likely to be performed in the field.
With respect to in-use maintenance, the proposed
regulation limiting the recommendations which a manufacturer
may make to purchasers of his products constitutes a require-
ment which must be met as a condition precedent to sale of
new motor vehicles and, therefore, is preempted by Section 209
of the Clean Air Act.
I would emphasize the term "condition precedent" as
being the key to preemption. It is some requirement related
to emission, the conditions precedent to sale, titling, and
etc., it is preempted.
This morning there was some suggestion in the ARB
testimony as to that, the question of whether EPA could grant
a waiver or not or whether EPA could consider grant of waiver
should be controlling. I think it is clearly not the case.
If it is a condition precedent, it is preempted. It may or
may not be eligible for consideration for a waiver, and that
waiver may or may not be granted.
Preemption may not lawfully be waived by EPA for
four independent and equally important reasons.
This relates to, again, in-use maintenance
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restrictions.
First, Section 207(c)(3) imposes an obligation on
the manufacturer to:
1.	Determine what maintenance is reasonable and
necessary to enable vehicles to meet applicable requirements
for their useful life, and .
2.	Provide instructions with respect to such
maintenance to all purchasers. Failure to provide such
instructions is a prohibited act and therefore may result in
the imposition of penalties under the federal Clean Air Act.
If a manufacturer makes a reasonable, good faith judgment
that certain maintenance is reasonable and necessary and yet
is precluded by CARB from so notifying the purchaser, a manu-
facturer has no choice but to violate either the federal or
California law. It is wholly impermissible for EPA to grant
a waiver that would create this situation.
Second, and related to the above, Section 207(c) (3)
imposes by statute an affirmative obligation upon manu-
facturers. This obligation runs to purchasers wherever they
are located — California or the other 4 9 states. EPA could
not directly release manufacturers from this obligation;
Section 207(c)(3) is unequivocal — "The manufacturer shall
furnish . . . instructions for the maintenance and use . . .
as may be reasonable and necessary to assure the proper
functioning of emissions control devices and systems."
It is of more than passing significance that the
portion of Subsection 207(c)(3) which relates to labeling
provides that the label shall contain such other information
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. .as the Administrator may prescribe. . ." while no such
discretion is conferred in the case of maintenance instruc- .
tions. Of course, in providing instructions, a manufacturer
is responsible for the proper functioning of emission control
systems so maintained under the warranty and recall provisions
of the Clean Air Act. EPA may not, under the guise of
granting a waiver of preemption, do indirectly what it cannot
do directly. Either case would constitute action by EPA in
flat contravention of the Congressional mandate encompassed in
Section 207(c)(3).
Third, the CARB limitations on in-use maintenance
are internally inconsistent. This inconsistency gives rise
to the issue of feasibility. Section 3(i) of the California
Exchaust Emission Standards and Test Procedures for 198 0 and
Subsequent Model Passenger Cars# Light-Duty Trucks and Medium-
Duty Vehicles as amended May 26, 1977 requires, on the one
hand, that "The manufacturer shall furnish or cause to be
furnished. . . written instructions for the maintenance and
use of the vehicle (or engine) by the purchaser as may be
reasonable and necessary to assure the proper functioning of
emission control systems in normal use."
Having directed the manufacturer to make a judgment
as to what instructions are "reasonable and necessary," the
CARB then obligates the manufacturer to comply with a contrary
requirement that "such instructions shall be consistent with
and not require maintenance in excess of the restrictions
imposed under Section 86.078-25(a)(1)" with very limited
exceptions relating to safety and extreme conditions.
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To the extent that maintenance beyond that permitted
during certification is reasonable and necessary (though
unrelated to "safety" or "extreme conditions"), the two
requirements are mutually inconsistent and therefore not
feasible.
Fourth, the furnishing of reasonable and necessary
maintenance instructions to the purchaser relates, of course,
to the feasibility of complying with applicable in-use require-
ments including, but not limited to, applicable emission
control requirements. As noted by Dr. Weaver, the limitations
adopted by California render compliance with in-use require-
ments not feasible.
In no small part, the confusing and internally
inconsistent nature of these regulations reflects lack of
understanding by CARB of applicable EPA requirements. CARS
characterizes the EPA regulations as providing that certifica-
tion maintenance limits and governs in-use maintenance. In
fact, the EPA regulations provide just the opposite. Namely,
certification maintenance is defined and limited in large part
by the maintenance recommended to purchasers. A fair summary
of the Clean Air Act provisions and EPA implementing regula-
tions is as follows:
1.	Maintenance will not be permitted during certi-
fication if such maintenance has an effect on emission control
system durability but is not recommended to owners.
2.	The conditioning of the Section 207 warranties
on performance of maintenance which is neither reasonable nor
necessary is in EPA's view improper.
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3. A manufacturer is responsible for remedying any
nonconformities which result from adjustments and repairs
made in accordance with the manufacturer's instructions in the
event of a recall under Section 207(c).
One additional point need be noted. During CARB
hearings on this matter, Ford pointed out that the subject
regulations are unlawful because:
1.	CARB has not been empowered by statute to regu-
late "in-use" as opposed to certification maintenance, and
2.	The absolute prohibition of maintenance recom-
mendations beyond those authorized by CARB is inconsistent with
both the California and United States Constitutions.
Ford recognizes that in the past EPA has declined to
consider the propriety of CARB regulations under California
law. No such latitude exists, however, with respect to con-
sideration of the propriety of these regulations under the
United States Constitution. In this regard, action by EPA
pursuant to Section 209 of the Clean Air Act is no different
than rulemaking or agency adjudication under any other provi-
sion of federal law. EPA cannot authorize enforcement of
regulations which contravene the Constitution and thus must
face and decide the constitutional issue.
A restriction on maintenance which may be recommended
to purchasers is nothing less than a prior restraint on
communication between parties to a commercial transaction. It
is well settled that speech does not lose the protection of
the First Amendment merely because it has commercial aspects
or is prompted by a party's commercial interest. Bigelow
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vs. Virginia, 421 U.S. 809 (1975).
It may be, and, indeed, has been argued that persons
subject to a comprehensive regulatory scheme somehow lose the
benefit of certain First Amendment protections. The United
States Supreme Court has heard this argument in State Board of
Pharmacy vs. Virginia Citizens Consumer Council, 425 U.S. 748
(1976), and decided to the contrary. Here, as in Virginia
State Board, the regulation relates to matters that, by
statute, have been found to be "affecting the public health,
i
safety and welfare." Virginia State Board at 750. Here, as
in Virginia State Board, the regulations are part of an
"extensive" regulatory scheme. Virginia State Board at 751.
Here, as in Virginia State Board, regulations will be made
enforceable by actions of two agencies, EPA and CARB,
"broadly charged with various responsibilities including the
maintenance of the quality, quantity, integrity. . . and
efficacy" of regulated products. Virginia State Board at
751. Here, as in Virginia State Board, these agencies are
empowered to license commercial activities and to revoke
licenses in the event of noncompliance with regulations.
Virginia State Board at 752.
The Court concluded that neither the pervasiveness
of the regulatory scheme nor its relation to public health and
welfare are controlling. The questions which do control are:
First, whether the speech sought to be restrained
is false or misleading. Virginia State Board at 748, Bene-
ficial Corp. vs. FTC, 542 Fed 2d. 611 at 619 (3rd Cir.,
1976), cert denied.
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Whether ample alternate means of communication
exist notwithstanding the restraint Virginia State Board at
748, Young vs. American Mini Theaters, 427 U.S. 50 (1976).
And, finally, whether the promulgating agency has
sustained the heavy burden of justifying a curtailment of
speech in order to effectuate an overriding governmental
purpose which otherwise might not be achieved. Bates vs.
State Bar, Arizona, No. 76-316, slip op. (U.S. June 27,
1977).
The regulations before EPA at this hearing fail
under each of the tests outlined above.
First, there is no suggestion, nor could there
reasonably be, that the maintenance instructions which would
be prohibited are false or misleading. Second, the regula-
tions do not merely relate to "time, place and manner" as do
the EPA procedures for review of maintenance instructions,
but rather wholly prohibit publication of instructions which
the manufacturer believes are reasonable and necessary to the
proper functioning of its products.
Third, the regulations wholly ignore the variety of
tools available and already in use to minimize the adverse
effects of use of motor vehicles on air quality. Finally,
the regulations likewise are oblivious to the benefits which
flow from the free flow of information from sellers of auto-
mobiles to the public. These benefits include, most
obviously, education of purchasers as to the best way to
assure the proper functioning of their automobiles.
In closing, Ford's position can be summarized as
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follows:
California's request for a waiver with respect to
limitations on certification maintenance must be denied unless
the requirement to use MMT in certification fuel is deleted
by EPA and the grant is conditioned upon affirmation by-
California that maintenance likely to be performed in use may
be performed during certification.
California's request for a waiver with respect to
limitations on maintenance instructions provided to purchasers
must be denied.
I would like to comment just very briefly on a
statement that was part of ARB's testimony this morning.
It was on Page 12. I will quote.
"Although Ford may not agree with the ARB's
decision to implement these regulations, and may argue
against our authority to do so, they stated at a public
hearing and workshop sessions that there is a high
probability that they will be able to comply with the
ARB's allowable maintenance restrictions in 1980."
I believe in general that that is an accurate state-
ment of our position, given two important qualifications.
One qualification is the one that Dr. Weaver discussed in his
testimony relating to MMT. The second qualification is that
our analysis of feasibility in our statement that the require-
ments are feasible related to certification, limitations on
certification maintenance. I think it is fair to say that
they do not relate to limitations on the recommendations that
we made to our purchasers.
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In that connection, I would like to submit for the
record a copy of our testimony for the ARB, statement of
Roger Maugh, April 28, 1977.
CHAIRMAN JACKSON: As I understand it, you conclude
that California can require reduction in maintenance, but that
they cannot require — that only that amount of maintenance
be reflected in the instructions to the ultimate purchaser?
MS. PETRAUSKAS: That is correct.
CHAIRMAN JACKSON: Then you set up a situation where
we had a contradiction of requirements of Section 207 and what
it is that CARB is requiring.
I am not sure I follow that. Let us assume that
California has a restriction on allowable maintenance done in
certification, and you successfully certify, performing only
that amount of maintenance,- and the agency judges that that is
a reasonable amount. But if you go ahead and change the
maintenance instructions that goes to the ultimate purchaser,
how can we make a judgment that that is necessary?
MS. PETRAUSKAS: I think there are two ways to
answer that question.
As you know, the EPA regulations presently anticipate
that there will be differences between certification and in-use
maintenance. I can go into the reasons for that, but the
reasons are reflected in EPA regulations and the EPA adivsory
circulars.
A better explanation might be for Dr. Weaver to go
through the list of items that we would propose to specify
in-field, and explain why it is we would specify them,
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notwithstanding what we may have done in certification.
CHAIRMAN JACKSON: Those two items?
DR. WEAVER: There are several items.
Would you like for me to do that?
CHAIRMAN JACKSON: No.
In other words, what you are saying is that you
believe it is necessary to do more maintenance on in-use
cars than it is to do on certification cars?
MS. PETRAUSKAS: It may well be necessary. In part,
it may well be a function of the fact that certification is a
process which takes — it is, in a sense, an artificial process,
because it is done over a period of five or six months rather
than five vears. So some of it is a function of that.
CHAIRMAN JACKSON: Time related maintenance.
MS. PETRAUSKAS: Time related maintenance.
Other aspects relate to the fact that people do not
drive cars on an MTC cycle. I noticed in this morning's
testimony, ARB noted in their closing comment what was
characterized as a legal presentation that certification, one
of the requirements of certification is that production
vehicles be, in all material respects, like certification
vehicles, and, therefore, from that, it should be that in-use
maintenance should be no different than certification main-
tenance .
You cannot stipulate to the fact that people will
not drive cars the way certification cars are driven. And it
is that difference among other differences that leads us to
conclude that there will be differences.
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CHAIRMAN JACKSON: I guess you have set forth some-
where where you can demonstrate these differences as they
relate to the way people drive an additional need for main-
tenance .
MS. PETRAUSKAS: Mr. Jackson, we demonstrate the
need for those differences every time, every year when we go
through the certification process. And we go through the
process of receiving approval from EPA for our maintenance
instructions that we give to purchasers. We receive that
approval, I believe, not because it is a condition of certifi-
cation, because EPA has not made it nor could make it a condi-
tion of certification. We do it to buy ourselves an insurance
policy against having the agency come back later and say we
violated the Clean Air Act by not providing reasonable and
necessary maintenance.
CHAIRMAN JACKSON: So what you are doing is making
sure you are not disapproved as opposed to getting approved.
MS. PETRAUSKAS: I think that is a fair statement.
MR. KRUSE: What is your reaction to the data CARB
presented which indicates your recommended maintenance is not
being performed by the vehicle owners?
MR. WEAVER: I guess we have to accept that some of
that is true, and where it has been demonstrated that this
lack of maintenance is contributing to air quality problems, we
are doing everything we can to produce maintenance-free parts.
MR. KRUSE: Do you have data of your own which you
can supply?
MR. WEAVER: No.
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MR. KRUSE: How do you demonstrate to EPA that your
maintenance instructions are reasonable? In other words,
if it is known from other sources that the maintenance is not
being done, how —
MR. WEAVER: Let's talk about —
MR. KRUSE: How can you justify to EPA that it is
reasonable and proper and you should provide it in your owner's
manual or shop manual?
MR. WEAVER: Could you be more specific about what
maintenance you are thinking about?
MR. KRUSE: There were some general comments on how
vehicle owners take care of their cars as compared to what —
well, how do you determine what is reasonable and proper when
it appears that the public, in fact, does not do what you say
they should do?
MR. WEAVER: I guess primarily we conduct our own
in-house tests. We do what we call general performance
testing, specifications, which helps us determine how our
vehicles perform under adverse conditions. This would
certainly have an effect on how we would respond.
We have good communications with our dealers, and
we communicate with our dealers, and they communicate with
us about what problems there are in the field. We have
manuals which indicate what should be done. We have service
training for our service personnel.
We get a lot of feedback through this type of
activity about what things go wrong with our cars.
MR. KRUSE: Do you have a feeling for the
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relationship between your maintenance intervals and owner-
perceived owner performance problems?
One of the things indicated this morning was that
owners, at least some owners tend to maintain their vehicles
according to their idea of how it ought to perform.
Do you feel that your maintenance intervals repre-
sent the point where, say, for example, ten percent of the
people would become unhappy and do it on their own, or is
there any relationship at all between maintenance intervals and
how people perceive the problem?
MR. WEAVER: I would not know how to respond to
that. Sorry.
MR. GRAY: I have a question in terms of the last
portion of the legal discussion.
Is it fair to say that the bottom line of this
discussion is whether or not California's judgment as to what
is allowable maintenance really hinges upon what is reasonable
and necessary? Because if those things are the only things,
things that they allow are the only things that are tech-
nically reasonable and necessary, and then you have a clear
issue of technically are those things all that are necessary,
can't the bottom line of this analysis be that of a technology
question as to the feasibility of only the things that
California allows — that is, have they not allowed something
that is necessary and reasonable?
If they had allowed all maintenance that is necessary
and reasonable, then where is the inconsistency issue?
MS. PETRAUSKAS: I think it is on Page 3 of
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Dr. Weaver's statement.
MR. GRAY: Is it a clear —
MS. PETRAUSKAS: But there is a more basic point,
and that is the Clean Air Act imposes an obligation on the
manufacturer. It is a two-part obligation. First, it says
you determine what is reasonable and necessary. And, having
made that determination, you tell purchasers about it. And
once we make a good faith determination that some item of
maintenance is reasonable and necessary, we have the obligation
at $10,000 a copy to tell our customers about it.
MR. GRAY: I don't think it says that the manu-
facturers make that judgment. It says allow maintenance that
is reasonable and necessary.
MS. PETRAUSKAS: Mr. Gray, if you are telling me
that it is the agency that has the obligation to decide
exclusively what reasonable and necessary maintenance is,
then there is no point in having the manufacturer go through
the rigmarole of making the determination providing it to
customers. I think that is an unfair reading of the legisla-
tive history of that provision.
MR. GRAY: What I'm asking is, is it not a more
straightforward issue for us to try to address the clarifica-
tion now whether or not California has included in their
allowable maintenance all that is appropriate, reasonable and
necessary. And, if they have not, then we can focus upon
those items. And if it is a direct transition from that
argument to the items listed in Dr. Weaver's statement, then
we can move straight into that.
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MS. PETRAUSKAS: I made the offer earlier, Mr.
Gray, and Mr. Jackson turned me down.
MR. GRAY: I think Mr. Jackson finished his line of
questioning, and I wanted to come back and make sure that
there was agreement with you that that allows us to move
directly to those items from the technological feasibility.
I guess the simple question there is with respect to
the items you listed on Page 4 of your statement — first of
all, is it your judgment that these items are all that are
necessary for in-use maintenance?
MR. WEAVER: Let me preface it by saying this, that
as you can see, this is not any list that is engraved in
concrete, because I changed it after it was typed up and
printed, as I indicated, I would also at this point like to
point out that most of the items on this list, which we are
working on to try to reduce or make the maintenance interval
longer, require less maintenance.
I would like to remind you of the progress we have
made already since the 1970's, say, where we had introduced
breakerless ignition, we have longer oil drain periods, we
have longer plug life, we have longer coolant life, we have
been able to certify the oxygen sensors for 50,000 miles,
we are working on providing carburetors which will have idle/
air/fuel adjustments which are not adjustable without going
through some kind of a service shop. We are working on all
of these items.
The only items that ultimately we see on this list
that are any real difficulty are, one, a safety item, and that
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is the thermactor dump valve. We feel strongly that the
supplemental air to the catalyst has to be dumped under idle
conditions where the idle is longer than roughly 60 seconds.
This would be caused if a car would idle for a long period of
time with no air flow underneath it, you can get into a heat
problem which becomes a safety problem. This servicing and
checking out — I should not say servicing, merely checking
to ensure that the dump valve is working properly we think
must be retained on the list of maintenance, and it is not
on CARB1s list.
The second thing is that the idle speed adjustment,
CARB has indicated that they would like to have this done
before 5,000 miles. Well, our first maintenance intervals for
V-8 engines comes about seven and a half thousand miles. We
would perform it at that point. We do not think it would be
reasonable to expect to have the customers bring a car in at
5,000 miles for an idle adjustment, and then bring it back at
seven and a half thousand miles for an oil change. So we
try to group these things for the convenience of the customer.
MS. PETRAUSKAS: If I might interrupt for a minute.
As you know, that is one of the criteria under Advisory
Circular 12-A, I believe it is, as to the likelihood that
maitenance would be performed — namely, is it scheduled
along with other maintenance?
MR. WEAVER: Yes. The other thing, and let me point
out that this is not a static thing, it is changing constantly.
As was previously indicated, there are competitive pressures
to reduce the maintenance as much as possible. We are making
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an effort to do that.
The crankcase emission filter, replacement of PCV
valve, adjusting the belt tension, the exhaust control valve
on the 300 CID engine, we have programs in all of these to try
to increase the maintenance interval or decrease the main-
tenance completely.
So I think we have a positive approach to this
problem. We are trying to reach the same objective that CARB
is. But we cannot define as precisely as they would like us
to, the rate at which we will achieve this. We cannot be
sure that we will be there by 1980.
CHAIRMAN JACKSON: So really you are not objecting
to them requiring in their maintenance instructions only that
maintenance which is permitted in certification so much as the
maintenance which is permitted in certification — you are
quarrelling with their list. Then once you agree on the list,
everything else goes away.
MS. PETRAUSKAS: Mr. Jackson, if it so happens that
ARB's coincides with our view, our belief, our judgment as to
what is reasonable and necessary, then you are right, in the
final analysis there is not any quarrel.
CHAIRMAN JACKSON: It is not a constitutional issue,
it is not —
MS. PETRAUSKAS: Of course it is a constitutional
issue.
CHAIRMAN JACKSON: How is it a constitutional issue?
MR. GRAY: It is agreed that both lists would
constitute what is reasonable and necessary.
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MS. PETRAUSKAS: The mind boggles at the kind of
rulemaking proceedings ARB would have to go through in order to
perform their judgment, but. . .
MR. GRAY: Well, in comparing the list, there
doesn't appear to be that much of a discrepancy. . .
MS. PETRAUSKAS: That may well be.
MR. GRAY: Well, it seems that the process that the
CARB has gone through for the last several months in the work-
shops and the various public hearings has been in an attempt
at least — there may be some quarrel as to the judgment made
by the CARB — but at least an attempt to establish what is
technically feasible and necessary. That is why this line of
clarification questioning was trying to focus back on as the
CARB left out of their allowable maintenance list items that
are technically necessary and reasonable.
MR. WEAVER: All right. I would like to point out
that in the area of new technology, we are introducing three-
way catalysts in California in 1978, and we are making some
assumptions about what kind of maintenance these systems will
require. We are assuming that sensor will go for 50,000
miles. Now, we could well be wrong.
Now, CARB is assuming that it will go for 30,000
miles. Well, they could be wrong also.
We are just saying that we need a certain amount of
flexibility to adapt to what conditions command.
Likewise, we are introducing electronic engine
controls. Now, this is a new beast, too, which we do not know
completely. We are taking some risk, and we are making
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certain assumptions about how they are going to perform. And
we are taking a rather large risk in replacing them if they
fail.
The other one that comes to mind immediately is our
alternate engines. We hope to introduce into the marketplace
a "proco" engine. And, there again, we will have to make
certain assumptions about what kind of maintenance that engine
will require compared to our conventional engines. I think we
are in a better position to make this judgment about the new
technology than CARB is. I guess it is fairly simple in that
respect.
CHAIRMAN JACKSON: I see your point. How would you
suggest, then, to retain a system whereby there would be some
sort of assurance that the minimum amount of maintenance would
be done — technology would continue to be stretched and
pushed — without regulations?
MR. WEAVER: We have demonstrated this. Look at
what we have done for maintenance in the last five, six, seven
years.
MR. KRUSE: Actual maintenance practices, though,
seem to lag your improvement in maintenance intervals by some
amount, or we wouldn't be having the problem that CARB is
trying to solve.
MR. WEAVER: That is bound to be true where there
are changing requirements. But there is no way to get there
unless we make the move first, and the public will have to
learn.
CHAIRMAN JACKSON: Competitive pressures, in a
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sense —
MR. WEAVER: Sure.
CHAIRMAN JACKSON: — this driving as fast as you
can go —
MR. WEAVER: That is right.
CHAIRMAN JACKSON:, And the thing CARB wants you to
do is to have you go faster than you think you can. And then
you get involved in all these constitutional issues with the
list being different than what you think it ought to be in your
judgment reasonable and necessary.
MR. WEAVER: Yes, sir.
MS. PETRAUSKAS: With regar$ to enforcement on the
federal level, obviously the agency has the — there is always
the possibility that the agency could challenge the manu-
facturer having failed to comply with the requirements of
207(c)(3). It is EPA's practice today, as reflected in its
Advisory Circular, to review the statement of warranty, for
example. And I believe it is EPA's view that to condition
payment under warranty upon the performance of maintenance
which is neither reasonable nor necessary is improper.
So, it is not as though we are saying leave us
alone, and that there is no way that EPA can — that was part
of the constitutional item, and that is that there are
effective tools right now to deal with those kinds of problems.
Some of them relate to things you can force manufacturers to
do. Others of these things relate to inspection maintenance.
The answer is not to tell a manufacturer what he
can and cannot tell the people who are buying these cars.
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CHAIRMAN JACKSON: I think you are right in your
assumption about the way EPA looks at maintenance in the con-
text of warranty review. What we say there is the warranty
claim cannot be contingent upon proper maintenance where the
maintenance was not related to the failure or defect gave rise
to the claim —
MS. PETRAUSKAS: I can explain that. You can make
the same point in the recall context.
CHAIRMAN JACKSON: Yes, but you made the point that
that is the way we made those evaluations, and I am quarrelling
with you about that. It is not. We do not look to see if the
maintenance is proper and necessary — we just say you can't
condition warranties on the performance of maintenance that
doesn't even relate to the defect.
MS. PETRAUSKAS: That is because of the nature of the
warranty that we have at the moment. It is a defect warranty,
and by definition something that arises because of a failure to
perform maintenance or misuse is not a defect within the
meaning of that section of the law.
Yes, I think we agree, Mr. Jackson.
CHAIRMAN JACKSON: But you have not given me another
way in which this can be done other than market pressures or
competition, something like that?
MR. WEAVER: It works. It is working.
MS. PETRAUSKAS: Well, the EPA has authority under
Section 203, the part of Section 203 that makes failure to
provide reasonable and necessary maintenance instructions, a
prohibited act.
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CHAIRMAN JACKSON: Does it really?
MS. PETRAUSKAS: Yes.
CHAIRMAN JACKSON: It doesn't just say failure to
provide maintenance instructions?
MS. PETRAUSKAS: Says, specifically. . .
CHAIRMAN JACKSON: I know what it says.
MS. PETRAUSKAS: As we all reach for our Clean Air
Act . . . "for any manufacturer of a new motor vehicle to
sell or lease a vehicle unless such manufacturer" — well, the
reference is in Subparagraph (b), "to fail or refuse to
comply with the requirement of Subsection 207(c)," Subparagraph
(3) of which says you have to provide reasonable and necessary
maintenance.
CHAIRMAN JACKSON: But you said that reasonable and
necessary is the judgment of Ford.
MS. PETRAUSKAS: That is correct.
CHAIRMAN JACKSON: Right. How would you ever
enforce that prohibition?
MS. PETRAUSKAS: The initial ~
CHAIRMAN JACKSON: We would have to come in and make
a finding that your judgment was unreasonable —
MS. PETRAUSKAS: No. You would have to come in and
make a finding of fact. In the first instance the responsi-
bility is with the manufacturer to make a good faith determi-
nation. Having done that and provided those instructions to
the purchaser, the agency has the wherewithal to challenge
either the fact that the manufacturer furnished no instructions
at all or the reasonableness or necessity of the instructions.
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CHAIRMAN JACKSON: I'll go along with the first
part —
MS. PETRAUSKAS: But that is after the fact. That
is not in the form of a prior restraint.
CHAIRMAN JACKSON: I will agree with your first
statement, that we could bring in action if you failed to
provide a maintenance instruction.
MS. PETRAUSKAS: Are you suggesting that the EPA
lacks the authority to challenge directly under Section 203
the reasonableness or the necessity for maintenance?
CHAIRMAN JACKSON: You said it was the judgment of
the auto manufacturer to provide it.
MS. PETRAUSKAS: That is right. It is an obligation
that is imposed on the manufacturer under the Act.
CHAIRMAN JACKSON: So, by definition, if you make the
judgment it's reasonable, so that is the definition of
reasonable.
MS. PETRAUSKAS: No, Mr. Jackson. We make that
judgment at our peril. That is why we go down to EPA every
year at Ann Arbor and get our maintenance instructions
approved.
CHAIRMAN JACKSON: You do not get them approved.
MS. PETRAUSKAS: I believe we receive a letter from
EPA separate from the letter which relates to certification.
That letter says, "We hereby approve your maintenance in-
structions." I can submit a typical letter like that for the
record.
MR. GRAY: I guess we drifted from the answering of
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the question earlier into the general area of meeting to keep
flexibility alive because of new technologies. Is that a fair
recap of at least the technology issue of it?
MR. WEAVER: That is a very important aspect of it.
MR. GRAY: In terms of emission performance and
safety, or both?
MR. WEAVER: Both. Certainly both.
MR. KRUSE: When you design your new engines or
systems, whatever they may be, and you are looking at the
maintenance required so that these are serviceable devices,
do you do this in light of the federal certification test
procedure, and look at the maintenance which you are allowed to
do under those circumstances, or do you do your maintenance
design independent of that, and work with a system . . .
MR. WEAVER: We do it mainly independent of the
certification procedure. Depending on what the particular
item is, it could be a dynamometer test. Finally it goes on to
a vehicle which goes over the general durability route, which
gets bouncy up and down over cobblestone roads. It goes
through salt baths. It goes 90 miles an hour. We give it
the roughest treatment we can give it. The system has to
operate under those conditions which we feel are much more
severe than the customer will give it.
MR. KRUSE: Do you have a feeling for the amount of
cushion you have from that test compared to what you expect
customers to do?
MR. WEAVER: We pay a lot of attention to the cost
of replacing items under warranty. I guess that testifies to
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how important we think it is. We spend an awful lot of
effort in ensuring that we do not have a lot of replacements
under warranty. This not only applies to emissions-related
things but all items on the vehicle.
We have a pretty good feel, and we have an estimate
of what those returns will be before the vehicle goes out to
the customer. It is then monitored constantly. If we begin
to have warranty problems greater than what we expected, then
we try to correct it very quickly.
MR. KRUSE: If the CARB maintenance requirements
were in place, would you feel you would have to do,anything
different to your vehicles, considering the cushion that you
appear to have?
MR. WEAVER: I think in our statements we said that
if CARB adopted these that we would try to meet them. That is
our position.
We have the same goal that CARB has, trying to meet
these goals. We will do everything in our effort to try to
meet this. That is all I can say we can do. We do not know
at this point in time whether we can or not.
MR. GRAY: Is there a reasonable chance you can by
1980?
MR. WEAVER: Is there a reasonable chance of what?
MR. GRAY: That you can by 1980?
MR. WEAVER: It is our goal to achieve this, with
the two exceptions that I mentioned. When we will get there,
I cannot say.
MR. GRAY: The two exceptions you mentioned —
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maybe I'm confused, but one you indicated was required for
safety reasons.
MR. WEAVER: Yes.
MR. GRAY: And it was my understanding based on
CARB's testimony that somewhere in their regulations they had
a provision to allow maintenance that is required for safety.
MR. WEAVER: Presumably we would have to get their
permission, the Executive Officer to conduct that.
MR. GRAY: But that flexibility for those special
considerations is written in to their regulations as they have
requested the waiver —
MR. WEAVER: Do you understand that?
MS. PETRAUSKAS: Yes. The difficulty is, the
problem I outlined earlier, that those procedures also provide
that if you can demonstrate in the field you may do it in
certification. And yet if one were to hear the testimony
this morning, one would conclude that that is not the case.
But I agree, there is language there with respect to
safety.
MR, GRAY: I think that one of the problems that
may have developed in terms of the language of those regula-
tions may deal with the fact that the regulations that were
submitted with the original waiver request attached to that
package are a little bit different from what were submitted
later. I think there were some additional verifications,
perhaps, and they seem somewhat different with regard to some
of the issues you raised that were attached to the,
specifically the waiver request of the July 6th letter and the
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regulations attached thereto were somewhat modified in the
area of allowable maintenance. It may clarify those points.
At least that was the way I understood the response
of CARB, and we may need to have them clarify that.
The other item was . . .
MR. WEAVER: Check the idle speed at a time other
than, at a mileage other than what CARB specified. This may
turn out to be a minor point.
MR. GRAY: Would that not perhaps fall within the
problem of an argument over good versus bad judgment at CARB
as opposed to technological feasibility? Essentially it
means that the owner would have to bring — you would have to
recommend that he bring it in at 5,000 miles instead of 7,500,
and then suffer an extra expense that seems hard to justify.
MR. WEAVER: Right.
MR. GRAY: Might it not be fair to characterize it
that way?
MR. WEAVER: Right.
MS. PETRAUSKAS: Although, again, under EPA ground
rules, by doing somethinq to accommodate California's concern,
one is put in the position where it is more difficult to
accommodate EPA qround rules. Namelv, I am referrinq to the
one criteria that is set out in Advisory Circular 12-A, for
example.
MR. GRAY: But, wouldn't you agree that complying
with the California requirements, since they are more
restrictive, at least in this regard, would also allow com-
pliance with the EPA regulations and guidance materials?
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There is not an incompatibility in that regard, is there?
MS. PETRAUSKAS: There is an incompatibility only to
the extent that if we believe certain maintenance, be it for
present systems or be it for some of the future systems that
Dr. Weaver mentioned, that we believe that the customer should
know about certain maintenance, and ARB regulations preclude
us from telling them about it.
MR. GRAY: Do you have any indication of the kinds
of maintenance items that may be developing on these advanced
technologies that will be incompatible with the requirements
of CARB?
MR. WEAVER: Not specifically, but as I already
mentioned, the oxygen sensor and the three-way catalyst.
There could be something about the electronic systems, both
on the feedback system of the three-way catalyst, the
electronic engine control, spark timing and DR, or the "proco"
engine; the injector nozzles, for example, the high pressure
pump. There is all kinds of maintenance that will be new and
different, possibly.
CHAIRMAN JACKSON: Have you raised these, Dr. Weaver,
with CARB, these technological concerns, the issue with the
new technology? In other words, you can't —
MR. WEAVER: Helen can answer that better than I.
CHAIRMAN JACKSON: Let me finish the question first.
Let me characterize what I think you are saying. You just
cannot agree to this because you think with regard to new
technology, there may be a need for different maintenance
intervals that are not permitted, and that because these
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regulations do not recognize that, it could cause you problems
with new technologies?
MS. PETRAUSKAS: That is one of the concerns we have.
That is reflected in the April 28th statement which I submitted
earlier.
CHAIRMAN JACKSON: Thank you very much.
MS. PETRAUSKAS: May I make two points? I am looking
at a letter from the Mobile Source Air Pollution Control
Certification Division, Ford Motor Company, dated July 22nd,
1977.
I am reading from the second paragraph.
"The differences which exist between these main-
tenance schedules and the maintenance which was performed
as scheduled maintenance on durability data vehicles have
been determined to be reasonable or necessary. Therefore,
EPA hereby approves the scheduled maintenance instructions
as submitted."
CHAIRMAN JACKSON: Thank you.
(Short recess.)
CHAIRMAN JACKSON: For purposes of clarifying the
record, the finding that the Administrator makes that Ms.
Petrauskas was referring to is under Paragraph 85.07439,
entitled "Submission of Maintenance Instructions." It says
that '*The Administrator will notify the manufacturer of his
determination whether such instructions are reasonable and
necessary to assure the proper functioning of the emission
control systems."
I would like to add to the record that that does not
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mean that he has found that that defines proper maintenance
with regard to recall or with regard to warranty liability.
MR. NELSON: Good afternoon, Mr. Jackson, and members
of the EPA Hearing Panel. My name is Edwin E. Nelson, the
Assistant Department Head of Automotive Emission Control,
General Motors Environmental Activity Staff.
With me today are Harold W. Schwochert, Staff
Engineer, concerned with California emission regulations and
Richard I. Petersen, an attorney with the GM legal staff.
Our presentation today will include a technical and
a legal statement, and Mr. Schwochert will present the tech-
nical statement followed by Mr. Petersen.
MR. SCHWOCHERT: On May 26, 1977, the California Air
Resources Board adopted new regulations that reduce or elimi-
nate permitted vehicle maintenance, effective with the 1980
and subsequent model passenger cars, light-duty trucks and
medium-duty vehicles.
General Motors prepared a position statement dated
May 26, 1977, which was delivered to the ARB during their
hearing on this subject. In this statement, we reviewed in
great depth our position relative to extended maintenance
intervals, technological feasibility, time versus mileage
considerations, customer satisfaction, safety considerations,
adjustability, and legal authority, and diligently showed the
ARB the reasons why their staff proposal should not be adopted.
We are submitting for the hearing record a copy of this more
detailed statement to the EPA to complete our position in this
regard together with this summary statement. We would be
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pleased to review any or all parts of the more detailed
statement with the EPA.
We would like to state that General Motors has and
will continue to strive toward design changes to eliminate
maintenance items where the technology is available and it is
feasible to do so. We also believe that the vehicle manu-
facturer has the responsibility to prescribe the minimum
amount of maintenance which is reasonable and necessary to
assure effective emission control/ vehicle safety, fuel
economy, reliability, driveability, durability, and overall
customer satisfaction.
The reduction of vehicle maintenance has always been
and will continue to be a goal with General Motors. Evidence
of this goal is clear from the fact that four of the main-
tenance items which the ARB eliminated (ignition dwell,
exhaust gas recirculation system, idle mixture, and catalyst)
are not currently recommended by General Motors.
In the interest of our customers, General Motors
continues to minimize maintenance requirements, and this will
remain true for 1980 and beyond when the minimum amount of
maintenance which is reasonable and necessary to assure
effective emission control will be recommended by General
Motors. The presence or absence of maintenance requirements
provides a competitive incentive and GM feels that further
motivation to make use of this aspect of the free enterprise
system is not necessary.
The proposal to substantially reduce or eliminate
the allowable scheduled maintenance in all the recommended
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areas does not appear to be supported by data. Further, it
is not clearly shown that the proposed maintenance reductions
will improve air quality in California.
We recognize that the intent of these regulations is
to reduce the emission levels of certain vehicles in the field
that presently are observed to have high emission levels.
The studies referenced in the ARB staff reports, dated
November 23, 1976 and April 28, 1977, showing high in-use
emission levels on these vehicles, indicate to General Motors
that maladjustment or deactivation of emission control devices
is responsible for the high emission levels. These studies
did not show that the amount of recommended maintenance was
a cause for high emission levels.
It is our judgment that substantiation of tech-
nological feasibility for this regulation was not provided by
the Air Resources Board. We question the ARB staff's blanket
assessment of technological feasibility based on the maximum
certification maintenance interval recommended by any one
manufacturer for any one engine family. In view of the fact
that this requirement applies to maintenance instructions in
normal use, the information does not support the proposed
regulation.
In conclusion, General Motors believes that this
regulatory action does not warrant an Environmental Protection
Agency waiver since the ARB has not demonstrated that:
1.	Air quality benefits will be associated with
the proposed regulations.
2.	That the proposed regulations are technologically
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feasible, and
3. The ARB lacks the legal authority to establish
regulations that limit prescribed and scheduled vehicle main-
tenance.
Further, we believe that these ARB regulations did
not consider:
1.	The importance of the effect of time on main-
tenance;
2.	That important differences exist between main-
tenance items that can and cannot lead to maladjustment, and
3.	That we recommend specific maintenance for rea-
sons that go beyond assuring proper operation of the emission
control system alone, such as customer satisfaction and con-
tinued safe vehicle operation.
Finally, we believe that the reduction or elimina-
tion of good common sense preventative maintenance items may
actually increase rather than decrease vehicle emissions.
General Motors has an important goal, the reduction
of scheduled maintenance. We have demonstrated maintenance
reduction and will continue to do so as a matter of good
business. This incentive exists without regulation. We
will continue to seek this goal in cooperation with the EPA
and ARB on a voluntary basis, and therefore respectfully
request that the waiver be denied.
Mr. Richard I. Petersen of our legal staff will
expand on the subject of legal authority at this time.
MR. PETERSEN: Mr. Jackson, members of the panel,
ladies and gentlemen. My name is Richard I. Petersen, and I am
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an attorney with the General Motors legal staff. I
appreciate the opportunity to address this hearing and follow-
ing my comments, I will be glad to answer questions.
On May 26, 1977, the California Air Resources Board
adopted regulations which severely limit the amount of main-
tenance which a vehicle manufacturer is allowed to recommend
to its customers. These regulations were adopted despite
unanimous opposition and overwhelming data demonstrating that
the regulations were neither technologically feasible nor in
the best interests of improving air quality; moreover, their
adoption was beyond the authority of the Air Resources Board.
The Board has petitioned EPA for a waiver of federal preemption
in order to enforce these regulations; and this hearing has
been convened to assess the merits of such a waiver.
General Motors believes that EPA must deny this
waiver. Today, I will briefly discuss two of the principal
reasons for this position.
First, these regulations are inconsistent with the
Clean Air Act, and a waiver to enforce them would violate
clear Congressional intent. In this regard, Section
207 (c) (3) of the Clean Air Act requires manufacturers to
provide maintenance instructions which are reasonable and
necessary to assure the proper functioning of the emission
control devices and systems. These instructions must be
provided to all vehicle owners, including those in California.
This language imposes an affirmative obligation upon the
vehicle manufacturer to:
1. Determine what is reasonable and necessary
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maintenance to assure proper emission control, and
2. Issue instructions accordingly.
The California regulations conflict with this
obligation by limiting a manufacturer's ability to recommend
reasonable and necessary maintenance. Nothing in the legis-
lative history of the Act indicates any intention on the part
of Congress to limit or otherwise control such recommended
maintenance. Moreover/ nothing in the legislative history
indicates that Congress intended to authorize EPA to compromise
the mandate of Section 207(c)(3).
The Clean Air Act established a framework whereby
the manufacturer's traditional judgment regarding maintenance
recommendations is unimpaired; however, EPA is given authority
under Section 205 to impose severe monetary penalties if a
manufacturer fails to include instructions which are, at a
minimum, reasonable and necessary to assure satisfactory
emission control.
The regulations adopted by the Board are not based
upon any consideration whatsoever of what is or is not
reasonable and necessary maintenance. In fact, the record of
this rulemaking proceeding is clear that in order to comply
with the California regulations, manufactueres may have to
eliminate maintenance items which are deemed to be reasonable
and necessary and are therefore required in order to comply
with Section 207(c)(3) of the Clean Air Act.
ARB regulations cannot rightfully compromise the
legal responsibility to comply with the Clean Air Act, and
neither can EPA by granting this waiver. Therefore, this
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waiver must be denied, since granting it would be inconsistent
with the clear mandate of the Act and could place the vehicle
manufacturer in the unacceptable position of either complying
with the Act and violating the California regulations or
complying with the California regulations and violating the
Act.
A second reason why EPA must deny this waiver is
closely related to the first. Not only would granting this
waiver be inconsistent with the clear mandate of the Clean
Air Act, but it could result in an unconstitutional taking
of property without due process of law because of the other
responsibilities imposed upon vehicle manufacturers by both
the Act and the California Health and Safety Code.
Manufacturers have certain legal responsibilities
for the continuing satisfactory emission performance of their
vehicles; for example, vehicles which fail to meet certain
emission requirements during their useful lives may be subject
to recall and required to be remedied at the manufacturer's
expense. Also, significant emission warranty responsibili-
ties are mandated by both the Clean Air Act and California
Health and Safety Code. However, both of these responsibili-
ties are conditioned upon the proper use of maintenance of
vehicles. Since a manufacturer has no control over vehicles
which are improperly used, or abused, it cannot legally be
held responsible for the consequences of misue or abuse.
These California regulations limit a manufacturer's
ability to provide owners with instructions for proper vehicle
use. Therefore, they will indirectly result in the imposition
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of an additional and unreasonable responsibility upon the
manufacturer — that is, these regulations will impose a
responsibility for the continued satisfactory emissions
performance of vehicles even though they may be misused or
abused. The imposition of this responsibility for occurrences
over which the manufacturer has no control is not only incon-
sistent with the Clean Air Act but it is also tantamount to a
taking of property without due process of law and is unconsti-
tutional. EPA cannot endorse such action by granting a
waiver to enable the enforcement of these regulations which
clearly are not permitted by law.
During the ARB rulemaking process, comments were
submitted to the Board, workshops were held, and the subject
was discussed at public hearings. A complete record thus
exists on these regulations, and it clearly demonstrates they
are technologically infeasible, inconsistent with the Clean
Air Act, and beyond the authority of the Board. We believe
it would be in the public interest for EPA to request the sub-
mission of this ARB rulemaking record. This would include,
but not be limited to, all supporting data, comments received
from interested parties and transcripts or recordings of the
public hearings and workshops held on this matter. This
would provide EPA with all available facts, and relevant
arguments and data upon which to base this important waiver
decision. Surely, the Board would have no objection to making
such a submission.
In conclusion, EPA must deny this waiver because
these regulations are inconsistent and incompatible with the
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mandates of the Clean Air Act.
Thank you.
CHAIRMAN JACKSON: It couldn't be that you could
make technological changes that would produce the need for the
maintenance that you would prescribe which is in addition to
that which is allowed by CARB?
MR. SCHWOCHERT: I am not sure I understand the
question.
CHAIRMAN JACKSON: I think it is turning the
question on its head. We keep talking here about what is
reasonable and necessary under some sort of given assumption.
I assume what CARB is trying to say is they are trying to
force technological development. It will make maintenance
above and beyond what they have specified unnecessary and
unneeded.
Now, the question is: Can you make those tech-
nological changes? Is it feasible to make technological
changes which will render the need to perform maintenance
above and beyond what they permit unnecessary?
MR. SCHWOCHERT: If we are scheduling unnecessary
maintenance now, they have the authority to challenge that
our maintenance is unnecessary.
CHAIRMAN JACKSON: It is the other way around. It
is to try to force you to build a car that will need no more
maintenance than that given set of requirements — and,
can you say that technologically you cannot do that? Is that
your position?
MR. GRAY: Aren't they really in effect saying hit
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us far enough ahead of time rather than on an informal basis
where they might have to deal with manufacturers under existing
regulations, we'd look at this technically, and these are the
items that we think are sufficient to comply with that, what
Mr. Jackson is talking about, and therefore we are dealing with
an issue. Do you disagree, are those things not sufficient
from a technological standpoint?
MR. SCHWOCHERT: Basically today, yes, we disagree
that it is feasible to prescribe the maintenance that ARB is
recommending, when we consider all aspects of the vehicle
operation, not just emission certification, but the in-use
emissions performance of the vehicle, the driveability of the
vehicle, the durability of the vehicle, customer satisfaction
yes, we are disagreeing with their assessment of technological
feasibility.
CHAIRMAN JACKSON: It is infeasible to build a car
that will not need maintenance above and beyond which they will
allow?
MR. SCHWOCHERT: We think that some of the items
that are being eliminated are good common sense preventive
maintenance items that should not be eliminated, not feasible
to eliminate them, some of the items that they are ruling out
by regulation. For example, the "inspect and adjust as
required" or "inspect and replace as required" instructions
that we presently specify for things like drive belts and
rubber hoses and filter changes or inspections as required, we
think that is a very good common sense preventive maintenance
item, and it is not feasible to eliminate that item.
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MR. KRUSE: Do you have information which would give
examples of the kind of maintenance vehicle owners perform on
those kinds of systems we are talking about? We are talking
about reasonable and proper maintenance — this is kind of an
undefined area. It may be possible that a vehicle owner
could operate his car for 60 to a hundred thousand miles and
never have to perform maintenance on those things. Do you
have information you can supply to the Board with regard to
that?
MR. SCHWOCHERT: I would like to refer you to some
of the information that the Board or that the staff put in two
reports. I guess it was the April 28th report in which they
presented information regarding surveys, an EPA survey and
an ARB survey. Those surveys showed that 74 to 80 percent of
the owners closely follow the manufacturers' suggested main-
tenance. There were some disclaimers regarding the validity
of those surveys. I do not know if ARB is saying that they
did not believe the surveys, but if you look at the informa-
tion a little bit closer, you will find that the failure rate
for those owners of vehicles who did not closely follow the
maintenance instructions was almost double the filter rate
for the owner who said they did. Roughly four out of five
said they followed them closely. So that indicates the data
they present in their staff report, that indicates that most
owners do follow the maintenance instructions, because the
emission levels are significantly different for those that do
versus those that do not.
MR. KRUSE: One of the things that was just discussed
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in that submission dealt with those owners who feel it is
necessary to perform maintenance based upon their perception of
how the vehicle operates.
Do you have a feel or information relating to that
perception to maintenance intervals? Do you know how much of
a cushion you have between your recommended maintenance and
the point at which the owner would perceive poor vehicle
operation?
MR. SCHWOCHERT: No. I do not think there is a
simple answer to that, because owners are all different. They
operate their cars under different driving conditions and
in different climates. There is no real easy way to answer
that question because there are no typical owners — well, I
shouldn't say there isn't a typical owner. Because they
operate their vehicles differently, you can't say that we have
that much of a cushion or no cushion or whatever.
MR. KRUSE: If you were to use the maintenance
intervals indicated by CARB, would you feel a need to change
vehicle components?
MR. NELSON: One of the problems we had in looking
at the regulations such as are being proposed now is the fact
that we have in that year and following that year new emission
standards to meet. That is a very difficult thing to try to
forecast exactly what you might need in the way of replacement
parts or maintenance to continue to have effective emission
control.
CHAIRMAN JACKSON: How substantial is this competitiv
pressure to reducing maintenance?
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MR. NELSON: We have — and I do not have all the
facts — a pretty good history of the maintenance reductions
over the years that GM has made. There seems to be quite a bit
of pressure — and I cannot quantify that — because of the
advantage you can obtain by eliminating maintenance as much as
possible from the competitive aspect.
I do not think I have any way to quantify that, to
answer your question.
CHAIRMAN JACKSON: But you do take the position
that there is a significant competitive factor driving you to
reduce required emissions-related maintenance?
MR. SCHWOCHERT: I think this is true. If you look
at our required maintenance schedules, Mr. Jackson, I think
you will find for every single item that we specify maintenance
on, the interval is greater than the interval permitted by
current certification standards.
If we were just trying to perform as much main-
tenance as the regulations permit, obviously at least some of
them would be the same interval. We have extended the inter-
vals as much as our experience dictates that we can extend
the intervals.
We think competitive pressures are significant —
CHAIRMAN JACKSON: Are they enough to drive you
to technological breakthroughs — in other words, would you
go any faster? Is that pressure significant enough to drive
technology, or is that something you kind of catch up to
according to what you think Ford may be doing?
MR. NELSON: I would not know how to answer the
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question. All we can say is that it is significant, and how
big it is or how fast you go is a business decision that is
made on many factors — people available, competition, a lot
of factors. So I do not think you can really quantify,
"Would you go faster if. .
MR. KRUSE: Where in your design process do you begin
to include information related to maintenance intervals? Do
you start designing your components in vehicles with main-
tenance in mind from the very beginning?
MR. NELSON: At every stage. But I would have to
admit that for the later stages of development, the closer you
get to the product, the more attention that area would get.
It certainly gets attention at every stage of development,
because there is an advantage to reducing the owner operating
costs as much as possible.
MR. KRUSE: Do you ever institute programs
specifically to reduce maintenance rather than going along with
some other program?
MR. NELSON: I cannot recall an exact example, but
I am sure there have been major activities along those lines
just to reduce maintenance intervals and oil drain periods.
We have had programs to extend the oil drain periods.
MR. SCHWOCHERT: We had, for example, in 1975, we
eliminated idle mixture adjustment as a maintenance item.
Was there a specific program to do that? Well, it
is hard to say that there was just a specific program to
evaluate that aspect of maintenance elimination. But surely
there were programs that led us to that conclusion. We have
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eliminated completely idle mixture adjustment several years
prior to ARB's consideration of it.
We have indicated to you that we are going beyond
that as far as idle mixture adjustment goes; we produced some
5,000 cars this year with idle mixture adjustment mechanisms
that are difficult to adjust. We hope to move in that
direction prior to ARB's requirement in 1980. So, we are
continually looking in areas where we can eliminate main-
tenance .
As part of our statement to the Air Resources Board
in May, we included an advertisement that we issued effective
with the 19 75 model year that stresses the reduced maintenance
that our systems required in 1975 and subsequent model years.
We surely would not advertise that reduced main-
tenance is important if we did not perceive that the customers
or if we did not believe that the customers perceive this to
be something that was of value to them.
As I flipped on TV last night, I saw an ad regarding
reduced maintenance on the Chevette. So we believe it does
have a competitive advantage. I think that that is a very
strong force in moving in this direction.
MR. GRAY: May I grab that by the other end in terms
of — Granted, you have been moving in that direction, you
continue to move in that direction, CARB has proposed a very
strong stimulus for you to move even further in that direction
by 198 0. What specific aspects do you feel cannot be complied
with from a technology standpoint?
MR. SCHWOCHERT: The regulation that you were
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referring to is very specific — that is, it has identified
maintenance areas, and said this is the minimum interval that
is allowed. And it is based on, as I certainly understand
ARB's analysis, it is based on looking at individual manu-
facturers' certification maintenance intervals. It is a
crystal ball as to what all. manufacturers can do in 1980.
So I would like to make that general statement
regarding what they said.
We can look at individual items, if you want to look
at individual General Motors' maintenance items, and talk about
these individual items if you like.
MR. GRAY: Just those items that you feel are not
technologically feasible to delete from required maintenance
by 1980, that General Motors cannot technically delete from
their products by 1980 or . . .
CHAIRMAN JACKSON: Right, cannot make technological
changes to the vehicle which would render these unnecessary.
MR. SCHWOCHERT: We can discuss some items in terms
of what technology is available to us today regarding the
proposed 1980 regulations.
Maybe we can talk about this in a general sense.
First of all, there are a considerable number of emissions-
related components that have rubber hose connections, for
example. Any maintenance instruction that we presently have
that would be eliminated by the California proposal, we do not
think it is feasible to eliminate that, the inspection of that
rubber component, because of the time consideration associated
with rubber deterioration. So, any maintenance instruction
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that we presently have that says "Inspect and replace as
necessary," we do not think it is feasible to eliminate that
good sense, good common sense preventative maintenance item.
MR. KRUSE: What in your opinion is the typical
time interval for replacement for those items?
MR. SCHWOCHERT: It varies a great deal upon the way
the customer operates the vehicle, the climate that he
operates in, the under-hood temperatures, the ozone concentra-
tions that the vehicle components are exposed to.
MR. KRUSE: Well, that is true of the mileage and
time maintenance items you have specified to, yet you come up
with a figure for that, but you must have some feeling for
these numbers.
MR. GRAY; It affects everything. The question is —
radiator hoses just within the constraints of what California
allowed us to consider here, is it not technically feasible to
come up with material by 1980 that would hold up —
MR. KRUSE: Two and a half years, roughly?
MR. SCHWOCHERT: I guess I do not understand the
two and a half years.
MR. KRUSE: Well, the approximate amount of driving
a person does to get to 30,000 miles is about two and a half
years.
MR. SCHWOCHERT: I think the regulation doesn't
allow any inspection of rubber components except —
MR. GRAY: Except drive belt.
MR. SCHWOCHERT; Except drive belt at all.
MR. GRAY: Is that the only area of objection you
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have is the area of checking rubber components for deteriora-
tion? I mean, it might well be argued that that is not even
covered here if it has minimal impact on emissions.
If a radiator hose fails, the vehicle won't perform
very well, and I imagine you would have it repaired. So the
impact on emissions might be minimal. Perhaps that was
deleted because it wasn't considered important. I do not
know if that is the case, but I guess the point is, is that
the only thing, and to make sure we have all of your concerns
on the record — and it could be sorted out later whether or
not it is appropriately left out or inappropriately left out
or intentionally left out. . .
MR. SCHWOCHERT: The rubber hoses I was referring
to were not coolant system hoses. They were the vacuum advance
diaphragm hose, for example, the EGR valve hose, evaporative
emission canister hoses, the hoses to any emissions control
device that a specific configuration might have. Those are the
hoses I was talking about.
The comments would also apply to drive belts.
We have some concern for the elimination of the
replacement of the evap filter.
MR. GRAY: Let us, before we get too many —
MR. SCHWOCHERT: The PCV valve —
MR. GRAY: All right. Startinq with the —
and you can add some more later — But are you saying that
with current materials, it is appropriate to recommend
"inspect and replace as necessary"? If that is accepted,
the question is, are you saying that is technologically
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(416) S43-3194M61-30M

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impossible to install lines from the carburetor to the
charcoal canister for the evap purge system that would not
deteriorate or that would not need maintenance?
MR. SCHWOCHERT: I do not think we can say that it
is impossible to do something like that. But what one has
to consider are all aspects of the serviceability of the
vehicle. I suspect you are thinking about maybe rigid lines -
MR. GRAY: Oh, nylon or other types of rubber-type
compounds less sensitive to ozone. There are certain types
of more expensive components certainly more resistant to
aging that would serve the purpose functionally as well but
are more expensive. Those are the kinds of items I was
referring to, more than just a rigid line or pipe. I think
there are other certain types of flexible components that
would satisfy that need.
MR. SCHWOCHERT: Certainly there are other means of
getting a vacuum signal than precisely what is being used
today. But one has to weigh all aspects. He has to weigh
the producibility, the serviceability — you know, how do you
change the serviceability, the producibility when you go to
different lines versus the maintenance instruction or the
benefit that you would gain. This is a very simple main-
tenance instruction in this specific case, the hoses we are
talking about right now, the "inspect and replace as
necessary" type of instructions. That has to be a factor as
far as feasibility goes and not, "Can you do it?" But, "Are
there benefits in" —
MR. GRAY: I guess is it necessary that you do it,
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is the question. If there are components that don't require
that, then it wouldn't be necessary to do it if those com-
ponents weren't needed I guess is really honestly the probing
aspect of the question.
Are you saying that there are no components avail-
able, that those components have excessive costs, or that you
prefer not to — I gues that is why I am persisting in a more
specific answer. What are you really saying in regard to
lines of this type? It's not possible? It's not preferrable?
It's too costly?
MR. PETERSEN: It does not make any sense to elimi-
nate a simple maintenance instruction to inspect a component
of a very complex piece of machinery and replace it if
necessary. Our maintenance items do not only relate to or
affect emissions. They relate to fuel economy, they relate
to satisfactory vehicle operation, they relate to durability,
and, very importantly, they relate to continued safe vehicle
operation.
It does not make any sense to eliminate a simple,
easy maintenance instruction of inspect a maintenance com-
ponent and replace if necessary, to help assure continued
safe operation of a motor vehicle. It is a very complex
piece of machinery. And, regardless of the materials you
build, human beings are still imperfect animals, and there is
going to be a hose out there with a flaw in it regardless of
the material that is made out of, and it may require replace-
ment. It does not make any sense, and it is not in the
public interest
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MR. GRAY: As you well know —
MR. PETERSEN: It is not feasible.
MR. GRAY: — we are somewhat constrained in the
area of making a determination as to whether or not the CARB
has any sense —
MR. PETERSEN: That is why I stuck in the word
"feasible."
MR. GRAY: So that is why I am trying very hard to
constrain your response to the question of is it a technical
feasibility objection that you are raising, or is it just an
issue with the CARB's good sense?
MR. PETERSEN: We think it is a technological-
feasibility issue. In regard to these regulations, you are
probably dealing with a technological feasibility in a much
different sense than you generally deal with with that issue.
MR. GRAY: Is that to say that General Motors is
not aware of a rubber-type component you could replace these
current rubber-type lines with that would have age resistant
characteristics?
MR. PETERSEN: We can say that we are not aware of
a component that we would be prepared to place in an automobile
now where we would not want to continue to recommend to the
owner that he inspect that component periodically and replace
it as necessary.
Again, I do not care what you make the component out
of, there are imperfections.
We have to be responsible for the vehicle and its
operation in a much broader sense than just emissions.
£ & WILSON
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MR. GRAY: I assume that there are other provisions
of the regulation that would cover defects in materials that
relate to emission components, but assuming that the basic
properties are, in general, defect-free . . .
MR. PETERSEN: Assuming that is a big assumption.
MR. GRAY: In any case, those defects, those
problems would be covered under different provisions, I guess,
at least that is the point I can appropriately make, and . . .
MR. PETERSEN: On a fan belt?
MR. GRAY: In this case, fan belts in particular are
allowed to be inspected.
How about vacuum lines, purge lines —
MR. PETERSEN: Fan belts are allowed to be inspected?
MR. SCHWOCHERT: At 30,000 miles.
MR. GRAY: Which was, I believe, the General Motors'
recommendation in that regard, was it not?
MR. PETERSEN: I do not believe so.
MR. SCHWOCHERT: 15,000 miles.
MR. GRAY: 15,000. Well, is that another area that
you think is inadvisable, that you think — I mean, what is
the issue here? I guess I am showing some frustration in
terms of getting an answer?
MR. PETERSEN: I think we stated it very clearly
that it is technological infeasibility.
MR. GRAY: GM is not aware of materials that can
replace these that are aging. . .
MR. PETERSEN: Where we would not recommend a
periodic inspection and replace as necessary common sense,
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simple, easy maintenance instruction.
MR. GRAY: Because you feel that component would
deteriorate with time?
MR. PETERSEN: Because we feel that it makes good
sense to have critical components like that inspected
periodically and replaced as necessary.
MR. GRAY: As necessary implies they have deteriorate
to some extent?
MR. PETERSEN: As necessary implies as necessary.
If the component requires replacement, it requires replacement.
I think that is clear.
MR. KRUSE: Do you have data of your own to support
your analysis of the CARB data on the relationship between
consumer maintenance and the maintenance intervals which would
indicate people are doing what you tell them to?
MR. PETERSEN: I am not sure whether we do or not.
I think that issue is somewhat irrelevant.
MR. KRUSE: But you say put this in the maintenance
instructions that you should inspect and replace as necessary.
And if nobody ever bothers to inspect that, then the instruc-
tions are irrelevant.
MR. PETERSEN: We have no reason to believe people
are ignoring our maintenance instructions.
MR. KRUSE: Maybe your product is so good, though,
that whether they ignore it or not is not important.
MR. PETERSEN: This is relevant to the competitive
issue which Mr. Jackson raised. I think our submission on
May 26th, Mr. Jackson, addresses this competitive incentive
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issue quite well. As Mr. Schwochert showed you, we even
advertise on reduce maintenance.
One of our major competitors has a major advertising
campaign on reduced maintenance costs.
We would be glad to submit something for the record
even as to the impact of the free market upon reducing vehicle
maintenance. It is easy to demonstrate how in the last 20,
25 years vehicle maintenance requirements have been dra-
matically decreased.
In researching the legislative history on this issue
it was interesting that Congress even spoke on this fact.
Senator Muskie, in responding to Senator Allen, on some
concerns about vehicle maintenance, stated, and I am quoting,
"The industry itself has recognized this over the years, and
it has constantly striven to make the automobile maintenance-
proof. It has undertaken to stretch out the life of the
lubrication system to render the number of times or the
frequency of lubrication, and reduce the number of times or
frequency of lubrication and so on."
Going on, "The industry recognizes that the American
motorist is not a good maintenance engineer, and, therefore,
the industry has worked to make the car maintenance proof."
We do not need any further incentive than the
free marketplace to reduce maintenance. History has clearly
demonstrated that vehicle maintenance requirements have been
reduced.
MR. GRAY: What was the next item?
MR. PETERSEN: That was from the Senate Report on
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SHORTHANO REPORTERS
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the Clean Air Act Amendments —
MR. GRAY: The next item you mention was the filter
for the canister on evaporative emission control systems.
You felt that since the CARB had not allowed replacement of
that filter that that was a technological problem.
I guess the first, question I would ask in that
regard is what evidence do you have that replacement of that
filter is necessary to assure the proper functioning of the
evaporative emission control system?
MR. SCHWOCHERT: This is kind of a general statement,
but the evidence for maintenance instructions in general are
very broad and complex. That is, it is a lot of field
experience that you get feedback from. It is from testing you
do under all kinds of driving conditions. It is just a
broad base on which you make this determination.
But with respect to any filter that filters air,
we know that some people drive their vehicles under some con-
ditions that will plug up filters.
MR. GRAY: Well, as we pursued the questioning with
ARB this morning, I think it became reasonably clear that they
do intend to allow manufacturers to provide in their manuals
instructions for maintenance under these severe types of
conditions.
So, assuming that they would follow through in that
commitment, and focusing our attention on just the more normal,
as the CARB indicates, more urban-type operation, would you
provide this evidence that you have that supports that need,
that necessity, if I may, to replace that filter at 30,000
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miles so that we can evaluate the strength of that argument?
MR. SCHWOCHERT: I do not know how we define
"severe" operation. Even those that live in urban areas
occasionally drive on some roads that are dusty. In that case,
their system should periodically be inspected. If they have
accumulated enough time under those conditions, then you should
do something, clean the filter, replace the filter.
I guess that is basically, again, a good common
sense preventative maintenance-type idea where you should look
at it, and if the filter is dirty, you ought to do something
about it. If you drive under conditions where you never
accumulate sufficient dirt to plug the filter, then you don't
have to replace it.
MR. GRAY: If you have any hard data as to the need
at 30,000 miles versus the need at 25 versus the need at 50,
that would be — If it is not submitted, I guess it would be
just assumed that it is a good common sense judgment that you
have made, which is part of your answer . . .
MR. PETERSEN: That is right.
MR. SCHWOCHERT: I do not think we can submit data
from any one test to confirm maintenance requirement, nor can
ARB submit data from any one test to refute any maintenance
requirement. It is not that simple. It is not like running
an emissions test. It is a much more subjective thing.
MR. GRAY: The other side of that, then, is — And I
assume you would have hard data here — what evidence do you
have to indicate that those filters are actually replaced, or
can reasonably be expected to be replaced?
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SHORTHAND REPORTERS
(4IS) 943-3194/461 -3098

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MR. SCHWOCHERT: That is a tough question for us,
since our dealers, as the vehicles get a little bit older,
do small fractions of the service. So it is difficult. We
can see what information we have in this area, but I do not
think we have any substantial information that we can say for
sure how frequently filters are replaced.
MR. GRAY: What I am referring to is the supplying
of these filters to the aftermarket industry, I guess.
MR. SCHWOCHERT: We can look at that, but I am not
sure how you use that data to draw conclusions, but, surely,
we can look at that.
MR. GRAY: If it is necessary and yet it is not
occurring, it might be reasonable to expect that . . .
MR. PETERSEN: Could I address that issue briefly?
There has been a lot of discussion here today about main-
tenance which is not occurring in the field. And how do you
take care of that problem? That is not something that
Congress ignored. Again, quoting from the Senate Report,
the Clean Air Act Amendments of 1970 under Section 207, it
states, "Conversely, by requiring the manufacturer to warranty
performance, margins of safety will be built into each
vehicle to ensure better than required performance; systems
will be designed to minimize deterioration. State emission
inspection programs can cause proper maintenance to be
observed by the motorist, and the air quality objectives of the
Legislature will be implemented."
On down it states, "Proper operation and maintenance
according to manufacturers reasonable instructions is a
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pre-condition to the warranty."
Congress did not ignore this. They knew that the
manufacturer did not have control over whether or not the
consumer does, in fact, follow maintenance instructions. But
the obligation on the manufacturers' part was clear. That
obligation was to provide reasonable and necessary main-
tenance instructions.
If the manufacturer complied with that, he has met
his responsibility insofar as maintenance is concerned.
On the other hand, the consumer's obligation or the
customer's obligation is to perform that maintenance. A state
inspection maintenance program is designed to make sure that
consumers and customers do meet their obligations.
CHAIRMAN JACKSON: Mr. Schwochert, before we leave
this business about the filter for the canister, and the hoses,
reflecting on the fact that you said there is considerable
pressure to reduce maintenance by virtue of competition in the
marketplace, what plans does General Motors have to make
technological advances with regard to those two items which
will result in the reduction of required attention in-use?
MR. SCHWOCHERT: I guess I do not know if I can
answer that question directly — that is, outline some programs
We are constantly looking for new materials, constantly review-
ing information we get from the field to try to determine, if
we can, increase the intervals that we are presently using.
So, I think that has to be the general answer to
this question: we are continuously looking for new sources of
information that are available to us to try to increase these
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intervals.
CHAIRMAN JACKSON: Could you be more specific and try
to supply for the record what your findings are, and,
specifically, the reasons why you have rejected the use of
other types of materials or the hoses and other types of
filters for the filter?
You see the point I am getting at. You are making a
point of technological infeasibility. You also make the point
that there is a lot of pressure out there to try to develop
technology. Yet you are objecting to this approach because
these are not technologically feasible. If you could demon-
strate where you have looked and found where it was tech-
nologically unfeasible, I guess that would help support your
po int.
MR. NELSON: There is one problem that we did not
get into related to some of Mr. Gray's questions about the
filter that I think is intriguing and shows a little bit about
the whole regulation, and is there a need for the regulation.
One of the purposes of the proposal was to prevent
tampering or maladjustment. If you don't force a mechanic to
get in there, then he is not going to be having as many chances
to maladjust something.
With a filter change, that is a pretty simple,
inexpensive item. There is no possibility that he can now
adjust that system by replacing the filter or a hose. That is
one of the reasons why we do not have a big incentive to do
away with the simple cheap, inexpensive items of maintenance
like a hose or filter.
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MR. SCHWOCHERT: One thing we have to keep in
mind along that same regard is the vehicle is in the service
shop for other maintenance items unrelated to emissions
lubricating, oil change, for example, much more frequently
than we ask him to make these good common sense preventative
maintenance inspections. So we are not imposing upon the
customer to bring the car in just to inspect the hoses. He
is in there for another reason, and we are asking that this
inspection be done at that time.
CHAIRMAN JACKSON: But, as you go through your
reduction of maintenance, and I assume extended intervals, you
will have to look at things which will carry along the hoses,
the filters, and whatever else it is for which you have
objection to the approach California has proposed. We are just
saying if you can provide to us specifics with regard to work
you have done there to make the point about the technology
infeasibility of it, we are just suggesting that you are making
sounds like you have information which would prove your point,
which is not forthcoming.
MR. PETERSEN: I disagree. I think the record is
clearly going to indicate the basis of our position here. The
Clean Air Act used the words "technological feasibility."
In regard to the maintenance issue before us today
we have to equate that somewhat with the word "practicality."
It is not practical, it doesn't make sense. It is not a
question of whether or not we can use a more expensive
material or a better material. It is a question of even if we
did that, would it make sense to eliminate a conation sense, easy
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maintenance instruction such as "inspect and replace as
necessary"?
CHAIRMAN JACKSON: If you put it in the context of
your overall program to move the intervals further out,
reduce the amount of maintenance, sooner or later you are going
to have to pick those items up and carry them along. I am
just suggesting that if what you are telling us is correct,
you would have looked at that to try to do that.
MR. PETERSEN: I am not sure whether we have or not
in the way you describe.
CHAIRMAN JACKSON: You say it is technologically
unfeasible, and then you say you really haven't looked. You
have an inconsistency there.
MR. PETERSEN: I do not think so.
MR. SCHWOCHERT: We have looked. Our people that
deal with rubber component suppliers are continually talking
to these people regarding the changes that they are making,
the advances they are making. So we continuously look.
CHAIRMAN JACKSON: Again, I suggest that if you can
submit any information that is not available here for any of
those items, in addition to the two we are talking about, the
filter and the hoses, that would indicate that you have looked
and it is technologically infeasible because of certain rea-
sons, not impractical — or not too costly —
MR. SCHWOCHERT: That is part of —
CHAIRMAN JACKSON: If you know it is too costly, you
have to know whether you can do it and it is going to cost a
certain amount. Then you can make a judgment whether you want
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to do it, whether it will cost too much, even given all these
competitive pressures.
But you have lead us to believe that you have looked
and that you have drawn that conclusion. And I would assume
that before you can say, "Well, we don't want to do it because
it's impractical," you would at least know that you could do
it because you are going to look, you have all these pressures,
these market pressures on you to continue to try to extend
the interval, to eliminate maintenance.
MR. GRAY: Do you. have another example of an iteiti
that CARB did not allow which you feel is technologically
required in terms of maintenance?
MR. SCHWOCHERT: I think on some engines we feel
that a timing inspection should be allowed. I am not making
this statement to say that across the board we feel that we
could not eliminate timing adjustments or inspections —
"inspect and adjust" if outside the spec. But on some
engines we feel that it would be in the best interest of
overall vehicle operation to inspect timing and adjust it to
the manufacturer's specs if it was found to be out of spec,
because you do get mechanical wear of various parts in the
ignition system, the weights of the distributor, the pins of
the distributor, the drive mechanism for the distributor. On
some engines we feel that it is best to adjust timing, inspect
timing and adjust it.
MR. GRAY: How many items will you have in 198 0
where you will have adjustable timing in the context of
mechanical adjustment?
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MR. SCHWOCHERT: They will all have adjustable
timing.
MR. GRAY: A mechanical adjustment of, say, the
distributor, your electronic — If you won't have electronic
controlled spark that will eliminate the need . . .
MR. SCHWOCHERT: The basic timing will still be
adjustable. It won't be a closed-looped system. You will still
have a basic timing adjustment to make. You may eliminate
some of the mechanical parts. You may eliminate the weights,
for example, that provide centrifugal advance, but you would
still have a basic timing adjustment on the system. Any
wear of that drive system could change the basic timing, even
in electronic control or electronic engine control system.
MR. KRUSE: My understanding of the way those things
work is, what is now the distributor, in the future will just b€
a device which passes the spark from one cylinder to the next,
and that there can be a wide variation in the operation of that
thing, because the actual timing is controlled by the signal
derived from the crankshaft of the vehicle itself. It is all
electronically controlled and automatic.
MR. SCHWOCHERT: You still have a basic starting
point, I believe —
MR. KRUSE: But that is on the crankshaft, and it
should not change for the life of the vehicle.
CHAIRMAN JACKSON: But, even so, the adjustability
regs, to the extent there are any, would that preclude that
kind of adjustment — you would have to meet the standards
anywhere within the range, this initial timing?
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CERTIFIED SHORTHAND REPORTERS
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MR. SCHWOCHERT: I guess I feel today that I am not
prepared to talk to proposed adjustability regs.
CHAIRMAN JACKSON: In other words, this is not a
design in anticipation of the regs? This system you are
talking about is not designed in anticipation of the regs?
Just a point of clarification.
MR. PETERSEN: I don't know whether we can answer
the question, Mr. Jackson. We have not seen the proposed
regulation yet.
MR. GRAY: But it is your anticipation that you will,
across all your products line, have adjustable ignition spark
timing?
MR. SCHWOCHERT: I think we will have at least on
some engines adjustable ignition timing in 1980, yes.
That is another area that on some engines at least
we feel that it might be in the best interest to look at it
and make the adjustment. The information that we have regard-
ing timing suggests that it is normally adjusted about the
manufacturers' specs, and looks like that is another item that
should not contribute to emission degradation in the field.
CHAIRMAN JACKSON: What is the next big step in
reducing maintenance costs for the consumer — outside the
CARB regs?
MR. SCHWOCHERT: I don't feel I could say one thing
is going to be the next big step. I think the big step was
taken with the introduction of unleaded fuel at the same time
we introduced electronic ignition —
CHAIRMAN JACKSON: We did that for you.
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MR. SCHWOCHERT: So, that was a very big step.
I cannot crystal ball any big steps like that, but it
is ongoing. If you would look at it year by year you would
find that we year by year decrease the amount of maintenance.
We outlined a couple of examples for the Air Resources Board
in May.
This shows three examples — spark plug replacement,
idle mixture inspection or adjustment, and ignition timing
inspection or adjustment. Those are the types of ongoing
things that you will probably continue to see.
MR. GRAY: On Page 16 to that same document,
Figure 5, you have several items described that you refer to
as "Description of Recommended Maintenance." Does that apply
for model-year '78? Does that apply for all GM vehicles?
Is that the maximum for all vehicles combined? Could you
provide a little bit more explanation on that?
MR. SCHWOCHERT: Those descriptions, Mr. Gray, apply
to — that is right out of our 1977 maintenance instruction
manual, the description of the maintenance items.
MR. GRAY: That applies equally to all GM vehicles?
MR. SCHWOCHERT: I think it applies as far as the
point we are trying to make, which items can lead to maladjust-
ment. The maintenance items and intervals are not the same
for all General Motors' vehicles. We basically have two
maintenance schedules, as you probably know, Schedule 1 and
2. But there are slight variations in some of these
schedules, so the maintenance intervals are not the same for
all General Motors' vehicles.
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I do not know if I am answering your question.
MR. GRAY: Did you take the vehicle that had the
maximum number of maintenance items and add it — did you take
every one that happens to be identified on — even if it's
just one car or truck line, and add it to this list? Or is
this a reasonably consistent listing for General Motors' cars
from a general standpoint?
MR. SCHWOCHERT: I think it is a reasonably complete
list for General Motors' cars. I think it includes all the
maintenance items of emission, control equipment for General
Motors' cars.
MR. PETERSEN: Our maintenance instructions are
generally consistent from one vehicle to another. They vary
in terms of duration, usually.
The point of this chart was to demonstrate the
fallacy behind one of the bases for the regulation. The
regulation supposedly was based on the fact that a great deal
of maladjustment went on in the field, and that these regula-
tions would reduce the occurrences of maladjustment. This
chart pretty graphically shows that most of these maintenance
items are not ones which lend themselves to maladjustment.
MR. GRAY: I understood the purpose of your chart.
I just want some clarification as to what the items refer to.
Are there other things in terms of technological
infeasibility that you can offer, you can give an example?
MR. SCHWOCHERT: Well, there is one item that is not
included in here^that we will be talking about in 1980. We
have announced our plans to go across the board in California
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closed-loop three-way catalyst system. The oxygen sensor is
not on here.
Presently, based on what we know right now, we feel
that more maintenance than permitted by the California regs
may be required, more frequent servicing than 30,000 miles may
be required. But that is based on what we know today. We are
trying to get some experience with these systems next year and
the following year before we go across the board in 1980.
But, based on what we know today, we have to say
that we have to change it at 15,000 miles.
MR. PETERSEN: The oxygen sensor, Mr. Gray, the
maintenance on the oxygen sensor is a good example of a
maintenance item which — I do not know whether we were able to
foresee it two, three years ago, had these regulations been
proposed and adopted and waived three years ago, they would
have precluded oxygen sensor maintenance. Therefore, they
would have inhibited technology possibly.
We do not have a crystal ball. Neither does ARB.
This regulation just does not make any sense no matter how
you look at it.
MR. GRAY: It brings up, perhaps, another point as
discussed in the CARB testimony this morning, another point of
the purpose of the regulations perhaps in that it is a stimulus
to develop more durable components, that especially in those
cases where the consumer might not generally do the main-
tenance recommended, like the oxygen sensors.. It is probably
reasonable to have some concern as to whether the average
motorist will replace an oxygen sensor at the price of $15 a
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sensor every 15,000 miles.
MR. PETERSEN: That is why state inspection main-
tenance programs were envisioned by Congress back in 1970.
That is why those plans are going forward, I understand.
MR. GRAY: I think a reasonable purpose of this is to
encourage the development of a more, a better technology such
that perhaps a $20 initial oxygen sensor can last 50,000 miles.
Of course, that would result in less cost to the consumer, and
cleaner air overall.
MR. PETERSEN: I think we have plenty of incentive,
Mr. Gray. First of all, we have the free market. We have a
competitive incentive to build more durable components which
require a minimum of maintenance.
Secondly, we have 207(c)(3) of the Clean Air Act
which requires us to prescribe reasonable and necessary main-
tenance instructions.
We have Section 203 and 205 of the Clean Air Act
which authorizes EPA to penalize us at the tune of $10,000 per
vehicle for failure to live up to the mandate of 207(c)(3).
We have warranty responsibilities and we have recall
responsibilities. We have customer satisfaction responsi-
bilities .
If we build undurable components, undurable vehicles,
we are going to lose sales. That is not in our best interest.
MR. GRAY: I think Mr. Jackson appropriately
expressed an appreication for those points when he asked for
an explanation of possible efforts that you have expended to
improve additional durability of additional components because
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of all those stimulated forces. And, of course, that is the
main reason the ARB has adopted these regulations because, at
least in their judgment, they do not feel that all those
forces are giving everything that is technologically feasible.
I mean, that is apparently why we are here.
MR. PETERSEN: I would disagree. I am not sure that
the Air Resources Board has even made a —
MR. GRAY: Certainly they have read your submittal.
MR. PETERSEN: They have not even started to show
that the amount of recommended maintenance is the cause of
the degradation of emissions performance in the field. As we
understand the data that supports this regulation, it is
tampering which is causing this degradation. You do not
eliminate tampering by limiting maintenance. That is the
purpose of Chart 5.
Secondly, there has been a showing that one out of
five people may not properly maintain their vehicle, but there
is an equal showing which is of more weight, I believe, that
the 8 0 percent of the people who do properly maintain their
vehicles experience better emissions performance.
The answer is simple: Get the 20 percent who are
not maintaining their cars properly and have them maintain
their cars properly. That is what state inspection main-
tenance is all about.
I might also add that there is absolutely no data
to show or support the idea that the emissions performance of
the 80 percent of the vehicles which are currently properly
maintained will remain as adequate if these regulations are
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adopted. I think that is a very important point.
The assumption is made that the emissions performance
of the 2 0 percent of the vehicles currently not properly main-
tained will improve. But it is assumed also with no support-
ing data that the 80 percent of the vehicles which are currently
properly maintained will remain as adequate as it presently is.
We would certainly question that.
MR. GRAY: Well, I —
MR. PETERSEN: Again, Mr. Gray, if you are going to
say, "Present us with some data to support that," I am going
to have to answer that we are the regulated, and you and the
CARB are the regulators. You have the responsibility to —
CARB in this case has the responsibility of providing the data
to establish the point which I just made. We do not have the
legal obligation to prove to you that the converse is true.
In other words, they have the responsibility to support the
need for the regulation.
I do not think they have done that.
MR. GRAY: Well, actually, I was going to thank you
for your comment.
MR. PETERSEN: You can do that, too.
MR. GRAY: I was going to ask you if this means that
General Motors plans to endorse federal Maintenance Bill
207 (b), to accomplish the very same objectives that you just
stated.
MR. PETERSEN: 207(b), Inspection Maintenance
Program?
MR. GRAY: That goes hand in hand with the objectives
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you just stated.
I guess the point being, there are several
strategies that can achieve the objectives, and certainly we
can discuss the merits of this particular proposal that the
CARB feels is equally important or at least important enough to
i
go hand in hand with their inspection program. We probably
won't resolve which is the best or what combination is the
best. But that is very encouraging, the attitude of General
Motors.
Is there any other item that you feel is significant
enough from a technological and feasibility standpoint that
you could specifically point out to us?
MR. NELSON: We will reevaluate what we have sub-
mitted and submit as much as we can for the record regarding
lack of technological feasibility to meet the specific require-
ment.
MR. PETERSEN: Mr. Jackson, in my statement I asked
that the EPA request ARB to submit for the record of the
waiver hearing the entire record of the rulemaking process.
I think that record contains a great deal of fact and data
regarding some of the questions you have raised with General
Motors as well as some of the questions raised with some of
the other witnesses.
Do you intend to make that request? We respectfully
request that you make that request of the CARB.
CHAIRMAN JACKSON: I will take it under consideration
MR. PETERSEN: Thank you.
CHAIRMAN JACKSON: Thank you very much, gentlemen.
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MR. SCHWOCHERT: I am submitting a November 26th
statement to the Air Resources Board for the record. I will
give it to the secretary.
MR. PETERSEN: Mr. Jackson, could we expect a
decision on that matter before the hearing closes?
CHAIRMAN JACKSON:. Yes.
(Short recess.)
MR. WRIGHT: My name is Delbert Wright, President of
The Automotive Service Councils of California.
This statement is submitted on behalf of Automotive
Service Councils of California,3001 Red Hill Avenue, Building
5, Costa Mesa, California 92626.
This association directly represents 1,034 inde-
pendent automotive repair establishments throughout the
State of California. The National Assoication directly
represents more than 5,000 independent automotive repair
establishments throughout the United States. For more than
26 years, this association has been the principal spokesman
for the entire independent automotive repair service industry
in this country. We have consistently attempted to voice this
key industry's concern on all issues vital to our membership.
During the past four years, we have also advocated numerous
proposals aimed at benefitting our customers, the American
motorists.
We are now gravely concerned for the economic well-
being of our customers and for our own right to compete in a
free, open competitive marketplace.
We share with all Californians and U.S. citizens the
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desire to clean up our air and environment. We are anxious to
cooperate in any reasonable effort to improve and protect the
quality of the air we all must breathe. However, Resolution
77-16 adopted by the California Air Resources Board on May 26,
1977, proposes to abolish a significant part of the free
enterprise system of this state and the nation. The require-
ments contained in that resolution and particularly in Section
86.078-25 (maintenance) and Section 86.078-38 (maintenance
instructions) represent, a clear and present danger to the
motorists of California and to the thousands of independent
automotive repair establishments doing business in this state.
The proposals contained in Resolution 77-16 and
previous actions undertaken by the Air Resources Board consti-
tue a wreckless abandonment of the proven benefits available
from a competitive, free marketplace. The specified main-
tenance procedures with their inflationary and anticompetitive
results cannot achieve the desired improvement in the emission
levels from our new motor vehicles. The limited extent it
will achieve will .be through the imposition of outrageously
inflated, monopolistic costs to our customers, the motorists
of California.
The effects of Resolution 77-16 will be to compel
the California owners to pre-purchase, at the time they buy
their new vehicles, unrealistic emission maintenance service
which will be performed only by the manufacturer's specified
dealers. If approved, the California Air Resources Board will
be condemning our motoring citizens to a monopoly system with
all of the inherent evils and inflated costs. The public is
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entitled to know that when the CARB talks about "costs to be
borne by the car manufacturers" — the true cost is on the
car purchaser who prepays such costs at the time of vehicle
purchase.
Prepaid maintenance tied to the new manufacturers
and their specified dealers will seriously reduce effective
competition which now results from a free marketplace.
Prepaid maintenance tied to statutorily specified
functions will seriously impede new product innovation. The
development of new and improved component substitutes for the
original equipment on motor vehicles has always been the major
source of innovation and product improvement in the auto
industry. Independent development of better components serve
as a vital stimulus to the car companies to improve their
products.
Prepaid statutorily specified maintenance tied only
to the auto manufacturer's franchised dealerships will
inevitably increase consumer dissatisfaction and complaints
about the quality and cost of auto repairs. The U.S. Depart-
ment of Transportation study and report to Congress under
Public Law 92-513, the Motor Vehicle Information and Cost
Savings Act, clearly discloses a lower quality of auto repairs
from dealerships and a higher number of consumer complaints.
It also shows that service functions purchased from the dealer-
ships are significantly more costly than those purchased in a
competitive marketplace from the independent auto repair
shops.
Moreover, sophisticated fleet vehicle users, at the
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time of the lease, who include maintenance in their contracts
and who have an economic incentive for performing preventive
maintenance, do not fully utilize the maintenance for which
they have already paid. We believe that a less sophisticated
general motoring public will utilize even less the statutorily
required prepaid maintenance envisioned in Resolution 77-16.
Absent a statewide, mandatory vehicle periodic
emission inspection program, the public simply will be paying
the auto manufacturers for a service which, in large measure,
will not be utilized. Thus, the Air Resources Board will
have assessed a huge cost upon the California motorists without
any significant benefits or improvements to the quality of our
air or satisfactory performance of our vehicles.
We urgently implore the Environmental Protection
Agency to reject the application of the California Air Resource
Board for a waiver of Section 209 of the Clean Air Act.
We urge the Administrator to admonish the California
Air Resources Board to use a more realistic and restrained
approach in their efforts to achieve the necessary improvements
in the quality of the air each of us must breathe.
We implore the California Air Resources Board to
carefully evaluate the dire economic consequences, not only
for the thousands of auto repair establishments in our
state, but for the economic well-being of the 12,000,000
motorists of our state, who of necessity, must operate
privately owned vehicles.
Prepaid monopoly maintenance will mean immediate
costs for new car purchasers. More serious price increases
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will follow as the monopoly service on the emission system
develops. Automotive Service Councils opposes the California
Air Resources Board's petition for waiver to enforce
Resolution 77-16-
The application of the more stringent standards pro-
vided for in Resolution 77-16 are not only unnecessary, but
will be counterproductive toward achieving the desired reduc-
tion of emission of air pollutants. In the long run, the
monopoly effect of such a state standard and accompanying
enforcement procedures will not be consistent with Section
202(a) of the Clean Air Act.
Thank you.
CHAIRMAN JACKSON: Mr. Wright, I have a question here
that is submitted by CARB, and corresponds to a question I have
hearing some of the statements you made in your testimony.
I will read the CARB question: "Where do California
regulations compel the California owners to prepay at the time
they buy their new vehicles unrealistic emissions maintenance
service?"
MR. WRIGHT: I think I can explain that very clearly.
I am in business for myself. I am not a manufacturer's
representative. I am the man that people have alluded to
today as being the tinkerer of automobiles, as possibly the
problem that we have here. I do not believe that.
I see that whenever anybody purchases an automobile
in the State of California or in the United States that every
piece of required maintenance on that car is paid for before
it is sold. I have seen that in every warranty that has come
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through in the last five years, in the last ten years.
The manufacturers of automobiles that sold cars,
and warrantees them for 50,000 miles some years back fully
expected to recover the cost of that, or had the cost of that
figured into the automobile.
I do not believe that people who are in business
today, whether they be manufacturers or independents, are
stupid. There is no way that I or anyone like me can be in
business and sell a product and guarantee it for a period of
time without knowing exactly what the consequences are.
If the motoring public is told they have a car that
will be warranteed for 50,000 miles or a hundred thousand
miles or whatever, and then it is a free warranty, I think
they are being mislead. I think it is wrong.
The federal government has allowed the manufacturers
to recoup the cost of these warranties.
CHAIRMAN JACKSON: We are not talking about a
warranty. We are talking about elimination of maintenance and
certification and a similar reflection of that in the owner's
instructions.
Now, we are talking about — as I understand it, and
it has been twisted around lots of ways — that the CARB wants
the auto manufacturers to improve technology such that the
maintenance now required can be substantially reduced or the
period lengthened.
MR. WRIGHT: All right. First of all, I am not
an engineer. I hope you understand that. But I do see the
problems related to the automotive aftermarket. I can go back
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many years, and I can point out that General Motors in 1962
sold an automobile without a drain plug on an automatic trans-
mission. All over the Chevrolet shops there was a sign that
said, "This car does not require a transmission service in
the light of the automobile." But in 1961, they had a plug
there, a drain plug, and in. 1963 they darn well came out with
it again because they could not go that long without it.
We have also people who are telling us we can go
to cooling systems where we can go for two years and three
years, and we have an under-hood system, a problem where we
cannot open up the hood — if the regulations are essentially
true — we can't go in and charge a customer to inspect that
automobile.
Yet we are finding brand new cars that are a year
old that the cooling system is totally ruined because of
overheating, because of problems where they are not driven
in an ideal situation. We are finding cars now that we are
getting in and recommending — these are brand new cars —
we are recommending that they flush and change these cooling
systems or at least change the coolant on a yearly basis.
We are recommending that they change these hoses every two
years. Now, that would not fall within the parameters of
what CARB has presented.
We are very afraid that the reduced maintenance —
and, believe me, when we say "reduced maintenance," I believe
General Motors and I believe Ford when they say that we can
run it 12,500 or 15,000 miles on a tune-up. I see that. I
have seen that in my business. But when we reduce this and
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we tell a consumer that we can run 7,500 miles on an oil
change or 15,000 miles on a tune-up, they are going to go
20,000 miles on that tune-up or 25,000 miles on a tune-up, and
they are going to go 10,500 on the oil change. They do not
follow the instructions.
The only way that we can make this thing work is to
put the load on the consumer. We cannot go back — My looking
at this whole resolution that we have is to turn around and
say, "Look, Mr. Independent, you've been tinkering with that
automobile and therefore we are going to keep your hands out
of that automobile."
I make my living inspecting cars and adjusting them
and putting them in proper running condition, including
following the law. I know that a lot of other people do the
same thing. But to cut us out of it completely and to turn
us over to the dealers and say you can't even look at it or
you can't even work on it is a big mistake.
It is also a mistake to believe that at the time
that car is in for routine inspection or routine maintenance
at the dealership that we will not also lose the related
business on that automobile.
Today we are working on 80 percent, around 75 to
80 percent of all automobiles on the road. The manufacturers'
representatives after two years or so are working on the balance
of them. It is a very small minority.
To turn around and push the motors into that shop,
believe me, they will regrade their situation, they will build
bigger shops, they will have the equipment to do it. But it
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is going to be at the expense of the independent after-
market to get them in.
CHAIRMAN JACKSON: But how does it push it into the
dealers?
MR. WRIGHT: Very simple. Because if you tell the
customer that you have a warranty, you have a guarantee on
this car that it will run for 30,000 miles and that you are
not going to require anything, and they suspect anything is
wrong, they are going to run into the dealer to have it
inspected.
Now, I do not know what the situation is going to be
like at the dealership, but, believe me, when a car comes
back for a recall for a motor mount or comes back for some-
thing else, there is a darn lot of things sold.
CHAIRMAN JACKSON: There is a 50,000 mile warranty
on those cars right now by the statute. It seems like the
marketplace is able to handle it.
MR. WRIGHT: We are very concerned — you are talking
about the federal 50,000 mile —
CHAIRMAN JACKSON: Statutory 207(a) warranty.
MR. WRIGHT: Is this the one that was just cut back
to 18,000?
CHAIRMAN JACKSON: This has been on the statutes
since '72. It has been in all the owners' manuals, says this
car is designed, built and equipped to conform at time of
sale with standards free from defect such that they will not
exceed standards throughout its useful life.
MR. WRIGHT: We are very concerned that if we
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restrict the amount of routine maintenance in inspection, I
think the gentleman from General Motors said that the hoses
should be checked, to be able to go in and look at that, I
think is a crime, I really do.
I had a call from a lady in Utah where the canyons
are yesterday, long distance, because her car had a misfire,
and wanted to know what she should do.
I have customers that call me all this distance. And
to chase these people and say I can't do anything about this
car, take it to a dealer and have it repaired — this is a
trust that I have built up with my customers for years. To
turn around and chase these customers into a situation that
they have to go back to a dealership to have it repaired,
that we can't even inspect the cars — I believe that is what
it means, that we can't recommend to a customer that anything
be changed. We have cars that are brand new cars that don't
run properly, that have problems. We have emission control
problems.
We have an EGR plate on a Ford that's currently
burning out and having to recall, but we found that out, and
we had problems with it for almost a year before Ford recalled
it.
But we run into problems with these things that we
would like very much to be able to recommend to our consumers
to repair. We would like to have a free marketplace where we
can work on these things.
CHAIRMAN JACKSON: I understand that, but I am not
following your argument. It kind of jumps around. I am not
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saying you don't have one, I'm just not able to follow it.
It seems like you are saying that you are going to
be cut out of the business because of some warranty relation-
ship and some sort of prepaid maintenance package that the
consumer is going to either have, in fact, or perceive he
has. I go from there to the regulations we are talking about
here, and I find a gap.
What is happening is that we are saying that the
purpose of the regs is to force technology such that main-
tenance is not required to the extent it is required today.
Given that, you have made the point about some cars in use
require more maintenance than what the manufacturer recommends,
and apparently you are doing that.
MR. WRIGHT: That is maintenance, not necessarily
replacement of parts.
CHAIRMAN JACKSON: Well, that situation could still
exist under the scenario of these regs, and you would get
the same benefit, I assume, that you.get as it is right now.
So, other than the fact with regard to what the
manufacturer says should be done, that will be reduced, I do
not see any difference as far as your situation.
MR. GRAY: At one point I think the California Air
Resources Board did consider the option of requiring a manu-
facturer to pay for any maintenance that he wanted to require
as part of the purchase of the vehicle. But I think that was
dropped in the development of the regulations that we see
before us today.
Is it safe to say that that is no longer a part of
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these regulations?
FROM THE FLOOR: That is correct.
MR. GRAY: Thank you.
At least the prepaid aspect was — the CARB did
drop that aspect of the regulation. And I assume at least in
response to your kind of argument you have given today —
MR. WRIGHT: Well, you know it was pointed out today
by the Air Resources Board that they have an ongoing program,
an ongoing vehicle inspection program. I understand the high-
way patrol is going to restart or look at cars, but they
haven't done that for several years. The vehicle inspection
program that we have in California right now is in total
shambles. It is a total mess.
From a practical standpoint, if this goes on,
unless big things are changed that we haven't seen, in the
next couple of years, they are really not hitting their target
data on their vehicles inspection that I can see.
You are going to ask them to go to an independent
garage and have the car inspected as a normal routine thing
when the car is sold, and then if the car does not comply, it
has to go back to the manufacturer for repair. Is my under-
standing correct? The only time we would check it is when it
comes in for a vehicle inspection? I am trying to figure out
exactly where — to my way of thinking this looks like a pre-
paid insurance policy. I can't see any way that it isn't.
CHAIRMAN JACKSON: It just says that maintenance
that used to be done is not needed. And the assumption is
it really isn't needed, because the part that used to need
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that maintenance is designed or built in such a way that it
just does not need that maintenance anymore.
You may quarrel about that. You may say that's what
the manufacturer says, but it needs that maintenance, believe
me. But that is another question.
But assuming that the regs produce what they intend,
and that is a design that ends up just not needing that
maintenance, the car will go that far without needing that
maintenance, the bottom line, as I see it, is you and others
similarly situated are denied maintenance opportunities, if
you will, that you have had before. And I can understand
that. I can see you perceiving that maintenance that used to
come your way in terms of dollars will not be coming your way
as a result of a car that genuinely does not need more main-
tenance .
If that is your concern and if I have effectively
articulated it, then I understand you. But when you start
talking about the warranty, going back to the dealer and
prepaid service it gets a little fuzzy.
MR. GRAY: An owner can certainly bring a vehicle
in for more maintenance than is recommended. There certainly
won't be any way that anyone can control how much maintenance
he wants to have performed on his car. And he can take it
to anyone he wants to.
MR. WRIGHT: I think it is quite obvious from the
aftermarket, half the sales of spark plugs on after-
market spark plugs are sold over the counter. They are not
sold through independent garages or service stations.
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To go back, I think the questions that related to
aftermarket are the tampering with automobiles. I think
that is a study that has really been flogged. Everybody has
talked about it and looked at it, and I do not think it is
totally accurate.
I am not totally sure that the California Air
Resources Board has shown to you or to me or anyone else that
their regulations are absolutely necessary. If the manu-
facturer builds a car that will run for 30,000 miles without
requiring maintenance, then you as the EPA regulate that and
say that's fine, that car has to be built, then why do we have
to come to the point where California says that that car cannot
be even tampered with? Can't be inspected? You told the man
from General Motors that you expect that they can't even look
at the hoses and stuff at 30,000 miles.
I am saying from a very practical standpoint —
because I am not an engineer — I am a very practical person
looking at it from a practical standpoint — it won't work.
The guy that is going to pay the bills on this is the guy
driving the car, and it's not only going to cost him money,
but it's going to cost me money. It just doesn't look good.
CHAIRMAN JACKSON: I understand a little bit more
about it when you say it's starting to cost you money.
MR. WRIGHT: You better believe it. I operate my
own shop, and I'm up here for two days away from my business.
I'm not getting paid by anybody for being here.
MR. GRAY: Have you replaced many of these — as an
example, one of the aspects California may be intending to get
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at — have you replaced many of these evaporative emission
control charcoal canisters?
MR. WRIGHT: There is a filter in some of them, in
the base of them, that is routinely replaced — well, it
varies from manufacturer to manufacturer, but that is
routinely replaced in certain aspects of the servicing of the
car.
That, and a small breather filter for the PCV system
in the air filter are things that we do routinely replace,
along with the PCV valve and things like this. We check them,
we do inspect them, and we do replace them.
I might say that each car we tune up and we go
through we run through on an exhaust emission test, and we make
sure that they at least meet what we have as California specs,
which don't mean anything to you because the Air Resources
Board tells us one thing and has specifications on something
else that is very difficult for the industry to read. But we
do check these, and we do replace them.
MR. GRAY: Do you feel that a large number of the
people have them replaced?
MR. WRIGHT: No, I do not think the customers would
ever have them replaced if I didn't sell them, if I didn't
go in and dig that thing out and find it was chucked full
of dirt, the customer would never replace it.
People don't bring their cars in generally for
emission control service. They bring it in because they want
it tuned up.
When you asked how fast a customer finds out about
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a misfire, I think that from working with Champion and working
on these tune-ups, that they run about a 30 percent misfire
before the customer is even aware of the need for it.
MR. KRUSE: Is that the usual criteria, that they
ask for you to do something for his performance —
MR. WRIGHT: Yes., Generally, people are creatures
of habit, and we all need our automobile to drive and get
around. When something doesn't function properly, we bring it
in, whether we know what it is or not. But if we have a
question, we bring it in.
MR. GRAY: How do you sell a replacement filter for
an evaporative control system canister?
MR. WRIGHT: How do I sell it?
MR. GRAY: Yes. What do you say to the customer
when you find it needs to be replaced?
MR. WRIGHT: When I quote for a tune-up, I quote a
price and estimate it high enough so that I can replace the
parts necessary on it.
I try to do the same thing the manufacturer does,
I try to anticipate my cost ahead of time so that I don't
get caught in this wringer of a problem. In California you
are required by law to estimate everything that we do prior to
the repair work, or get that authorization.
Therefore, when I estimate a tune-up, I estimate
enough sufficient to replace the PCV and replace these inde-
pendent parts, if necessary.
Now, I can't say that everyone does that when they
go through it, but people are quite willing to replace parts in
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their automobile if you can show them the need and show them,
explain to them exactly what the replacement part is.
If you tell them that part of their exhaust
emission control is not functioning and that you would like to
replace it, if it is a minor part there is no problem.
But you try to get a replacement air pump on a
Chevrolet, '66 Chevie, and you might as well try to pull their
teeth out.
CHAIRMAN JACKSON: Have you ever replaced a catalyst?
MR. WRIGHT: Yes, sir. I have. I had one that
drove out from back East with a misfire all the way out, and
the car wouldn't run anymore. You want to know something
else? I couldn't buy it in Los Angeles. I replaced it with
a pipe, and the man went back with a note and a dead catalyst,
and ordered it, and ordered it from the dealer where it came
from. Because you can't buy it. That happens. That's the
real world. It does happen.
What are you going to do about it? What can you do?
I have not replaced a catalyst because of malfunc-
tions because we have not picked out a tune-up related
problem for some damage, no. We have had several that do
read high.
CHAIRMAN JACKSON: Mr. Wright, I appreciate your
coming down here to talk with us.
MR. WRIGHT: Thank you.
CHAIRMAN JACKSON: I would like to reconvene
tomorrow morning at 9:00.
(Whereuopon the hearing recessed until 9:00 a.m.,
Thursday. August 4. 1977.)	
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