California State Nonroad Engine
Pollution Control Standards; In-Use
Off-Road Diesel Fueled Fleets
Decision Document
rnA United States
Environmental Protection
Agency
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California State Nonroad Engine
Pollution Control Standards; In-Use
Off-Road Diesel Fueled Fleets
Decision Document
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
United States
Environmental Protection
Agency
EPA-420-R-25-001
January 2025
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EPA-420-R-25-001; January 2025
California State Nonroad Engine Pollution Control Standards; In-Use Off-Road
Diesel-Fueled Fleets Regulation; Decision Document
On April 26, 2024, the Environmental Protection Agency (EPA) published a
Federal Register notice announcing receipt of the California Air Resources Board's
(CARB's) authorization request for the 2022 Amendments to California's In-Use Off-
Road Diesel-Fueled Fleets regulation (2022 Off-Road Amendments).1 The notice for
comment on this authorization request indicated that the request would be open for public
comment until June 19, 2024. The Docket ID No. for the authorization is EPA-HQ-OAR-
2023-0581. EPA also held a public hearing on the authorization request on May 16, 2024,
and the transcript of that hearing is included in the docket. In this Decision Document,
EPA is taking final action to authorize CARB's 2022 Off-Road Amendments to the In-
Use Off-Road Diesel-Fueled Fleets regulation, pursuant to section 209(e) of the Clean
Air Act (CAA).2 EPA is also providing notice of the availability of this Decision
Document in the Federal Register.
1 See "California State Nonroad Engine Pollution Control Standards; In-Use Diesel-Fueled Transport
Refrigeration Units (TRU) and TRU Generator Sets and In-Use Off-Road Diesel Fueled Fleets; Requests
for Authorization; Opportunity for Public Hearing and Comment," 89 FR 32422 (April 26, 2024). For
purposes of this Decision Document, EPA is using the term "Off-Road" to denote nonroad engines and
equipment.
2 This Decision Document can be found in the public docket at regulations.gov at EPA-HQ-OAR-2023-
0581.
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Table of Contents
I. Background
II. Principles Governing This Review
A. Clean Air Act Nonroad Engine and Vehicle Authorizations
B. Deference to California
C. Burden and Standard of Proof
D. EPA's Administrative Process in Consideration of California's Request
III. Response to Comments Regarding the Authorization Criteria
A. First Authorization Criterion
B. Second Authorization Criterion
C. Third Authorization Criterion
IV. Other Issues
V. Decision
VI. Statutory and Executive Order Reviews
I. Background
CARB first adopted emission standards and associated test procedures for in-use
off-road diesel-fueled fleets (Off-Road Regulations) in 2007.3 CARB subsequently
amended the Off-Road Regulations a number of times and EPA granted an authorization
for CARB to enforce the Off-Road Regulations and subsequent amendments.4 By letter
dated November 2, 2023, CARB requested that the EPA authorize the 2022 Off-Road
Amendments pursuant to section 209(e) of the CAA.5
3 CARB's Off-Road Authorization Support Document (Off-Road Authorization Support Document), EPA-
HQ-OAR-2023-0581 -0027 at 2.
4 78 FR 58090 (Sept. 20, 2013).
5 Off-Road Authorization Support Document at 1.
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CARB notes that its 2022 Off-Road Amendments, which phase-in starting in
2024 through the end of 2036, are aimed at further reducing emissions from the in-use
off-road sector.6 In-use off-road vehicles subject to the 2022 Off-Road Amendments are
used in construction, mining, industrial operations, and other industries.7 The
Amendments will require fleets to phase-out use of the oldest and highest polluting off-
road diesel vehicles in California; prohibit the addition of high-emitting vehicles to a
fleet; and require the use of R99 or R100 renewable diesel in off-road diesel vehicles.8
The Amendments also require prime contractors and public works awarding bodies to
only hire compliant fleets beginning January 1, 2024, and establish reporting
requirements for prime contractors.9 The Amendments provide flexibility to regulated
entities and encourage the adoption of zero-emission technologies through optional zero-
emission compliance provisions.10
The 2022 Off-Road Amendments will further reduce harmful air pollutants from
in-use off-road diesel vehicles that operate in California. The off-road sector, more
generally (excluding locomotives, aircraft, waterborne vessels, portable equipment and
6 Id. at 6.
1 Id. atftn5.
8 Id. at 1. CARB also notes that the renewable diesel fueling requirement constitutes an in-use operational
control of nonroad engines that is not preempted by section 209(e) of the Clean Air Act (CAA). Id. at 8
n.21 (citing CAA section 209(d); 62 FR67733, 67736 (Dec. 30, 1997)). EPA agrees that the renewable
diesel fueling requirement is not preempted, does not require authorization, and cannot be the basis for
denying authorization for the Off-Road Amendments more generally.
9 Off-Road Authorization Support Document at 7-8. The CARB regulations covered by EPA's
authorization in this Decision Document consist of amendments to California Code of Regulations, title 13,
sections 2449, 2449.1, and 2449.2 (Cal. Code Regs., tit. 13, §§ 2449, 2449.1, and 2449.2). EPA notes that
to the extent certain requirements apply to sources other than mobile sources (such as potentially the
various recordkeeping and reporting requirements for contractors and public works awarding bodies), those
requirements may not be preempted by CAA section 209 and thus may not require authorization. See also
CAA section 116. To the extent authorization is required, EPA is authorizing the entire 2022 Off-Road
Amendments.
10 Off-Road Authorization Support Document at 9.
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agriculture equipment)11 comprises about 14 percent of the total statewide emissions of
nitrous oxide (NOx) and 7 percent of the total statewide emissions for particulate matter
(PM).12
From 2024 through 2038, the 2022 Off-Road Amendments will generate an
additional reduction above and beyond the current regulation of approximately 31,087
tons of NOx and 2,717 tons of fine particle pollution (known as PM2.5).13 About half of
those additional reductions are expected to be realized within the first five years of
implementation.14
II. Principles Governing This Review
A. Clean Air Act NonroadEngine and Vehicle Authorizations
CAA section 209(e)(1) permanently preempts any state, or political subdivision
thereof, from adopting or attempting to enforce any standard or requirement relating to
the control of emissions for certain new nonroad vehicles or engines.15 The CAA also
preempts states from adopting and enforcing standards and other requirements related to
the control of emissions from all other nonroad engines or vehicles (including "non-new"
11 CARB Initial Statement of Reasons (ISOR), EPA-HQ-OAR-2023-0581-0026 at 34.
12 Id.
13 Id. at 10.
14 Id.
15 CAA section 209(e)(1) prohibits states or any political subdivision from adopting or enforcing any
standard or other requirement relating to the control of emissions from new nonroad engines which are
used in construction equipment or vehicles or used in farm equipment or vehicles, and which are smaller
than 175 horsepower, or new locomotives or new engines used in locomotives. See 40 CFR section
1074.10(a).
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engines).16 CAA section 209(e)(2)(A), however, requires the Administrator, after notice
and opportunity for public hearing, to authorize California to adopt and enforce standards
and other requirements relating to the control of emissions from such vehicles or engines
not preempted by CAA section 209(e)(1) if California determines that California
standards will be, in the aggregate, at least as protective of public health and welfare as
applicable Federal standards. However, EPA shall not grant such authorization if it finds
that (1) the protectiveness determination of California is arbitrary and capricious; (2)
California does not need such standards to meet compelling and extraordinary conditions;
or (3) California standards and accompanying enforcement procedures are not consistent
with CAA section 209.
On July 20, 1994, EPA promulgated a rule ("the 1994 rule") interpreting the three
criteria, as found in CAA section 209(e)(2), that EPA must consider before granting any
California authorization request for new nonroad engine or vehicle emission standards.17
EPA revised these regulations in 1997.18
16 See CAA section 209(e)(2), 42 U.S.C. 7543(e). See 40 CFR section 1074(b). Therefore, states and
localities are categorically prohibited from regulating the control of emissions from new nonroad vehicles
and engines set forth in section 209(e)(1) of the CAA, but "all other" nonroad vehicles and engines
(including non-new engines and vehicles otherwise noted in 209(e)(1) and all other new and non-new
nonroad engines and vehicles) are preempted unless and until preemption is waived. See EPA's nonroad
preemption rulemakings at 59 FR 36969 (July 20, 1994) and revised in 1997 (62 FR 67733). EPA notes
that Appendix A to 40 CFR Part 1074, Subpart A sets out EPA's interpretation of what types of state
nonroad engine use and operation provisions are not preempted by section 209.
17 See "Air Pollution Control; Preemption of State Regulation for Nonroad Engine and Vehicle Standards,"
59 FR 36969 (July 20, 1994).
18 See "Control of Air Pollution: Emission Standards for New Nonroad Compression-Ignition Engines at or
Above 37 Kilowatts; Preemption of State Regulation for Nonroad Engine and Vehicle Standards;
Amendments to Rules," 62 FR 67733 (December 30, 1997). The applicable regulations are now found in
40 CFR part 1074, subpart B.
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As stated in the preamble to the 1994 rule, EPA has historically interpreted the
CAA section 209(e)(2)(A)(iii) "consistent with section 209" inquiry to require that
California standards and enforcement procedures be consistent with CAA sections
209(a), 209(e)(1), and 209(b)(1)(C).19 In order to be consistent with CAA section 209(a),
California's nonroad standards and enforcement procedures must not apply to new motor
vehicles or new motor vehicle engines. To be consistent with CAA section 209(e)(1),
California's nonroad standards and enforcement procedures must not attempt to regulate
engine categories that are permanently preempted from state regulation. To determine
consistency with CAA section 209(b)(1)(C), EPA typically reviews nonroad
authorization requests under the same "consistency" criteria that are applied to motor
vehicle waiver requests. Pursuant to CAA section 209(b)(1)(C), the Administrator shall
not grant California a motor vehicle waiver if he finds that California "standards and
accompanying enforcement procedures are not consistent with section 202(a)" of the
CAA. Previous decisions granting waivers and authorizations have noted that state
standards and enforcement procedures are inconsistent with CAA section 202(a) if: (1)
there is inadequate lead time to permit the development of the necessary technology,
giving appropriate consideration to the cost of compliance within that time, or (2) the
Federal and state testing procedures impose inconsistent certification requirements.20
When considering whether to grant authorizations for accompanying enforcement
19 EPA has interpreted CAA section 209(b)(1)(C) in the context of section 209(b) motor vehicle waivers.
See Engine Mfrs. Assoc. v. EPA (EMA), 88 F.3d 1075, 1087 (D.C. Cir. 1996) (". . . EPA was within the
bounds of permissible construction in analogizing § 209(e) on nonroad sources to § 209(a) on motor
vehicles.")
20 59 FR at 36982-83. See also 78 FR 58090, 58092 (Sept. 20, 2013).
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procedures tied to standards (such as record keeping and labeling requirements) for which
an authorization has already been granted, EPA has evaluated (1) whether the
enforcement procedures are so lax that they threaten the validity of California's
determination that its standards are as protective of public health and welfare as
applicable Federal standards, and (2) whether the Federal and California enforcement
procedures are consistent.21
In light of the similar language of sections 209(b) and 209(e)(2)(A), EPA has
reviewed California's requests for authorization of nonroad vehicle or engine standards
under section 209(e)(2)(A) using the same principles that it has historically applied in
reviewing requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).22 These principles include, among other
things, that EPA should limit its inquiry to the three specific authorization criteria
identified in CAA section 209(e)(2)(A),23 and that EPA should give substantial deference
to the policy judgments California has made in adopting its regulations. In previous
waiver decisions, EPA has stated that Congress intended EPA's review of California's
decision-making be narrow. EPA has rejected arguments that are not specified in the
statute as grounds for denying a waiver:
The law makes it clear that the waiver requests cannot be denied unless
the specific findings designated in the statute can properly be made. The
issue of whether a proposed California requirement is likely to result in
21 See Motor & Equip. Mfrs. Assoc. v. Envtl. Prot. Agency (MEMA I), 627 F.2d 1095, 1112 (D.C. Cir.
1979). California certification test procedures need not be identical to the Federal test procedures to be
"consistent." California procedures would be inconsistent, however, if manufacturers would be unable to
meet both the state and Federal test requirements with the same test vehicle in the course of the same test.
See, e.g., 43 FR 32182, (July 25, 1978).
22 See EMA at 1087.
23 59 FR at 36983.
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only marginal improvement in California air quality not commensurate
with its costs or is otherwise an arguably unwise exercise of regulatory
power is not legally pertinent to my decision under section 209, so long as
the California requirement is consistent with section 202(a) and is more
stringent than applicable Federal requirements in the sense that it may
result in some further reduction in air pollution in California.24
This principle of narrow EPA review has been upheld by the U.S. Court of
Appeals for the District of Columbia Circuit.25 Thus, EPA's consideration of all the
evidence submitted concerning an authorization decision is circumscribed by its
relevance to those questions that may be considered under section 209(e)(2)(A).
B. Deference to California
In previous waiver and authorization decisions, EPA has recognized that the
intent of Congress in creating a limited review based on specifically listed criteria was to
ensure that the Federal government did not second-guess state policy choices. As the
Agency explained in a prior waiver decision:
It is worth noting ... I would feel constrained to approve a California approach to
the problem which I might also feel unable to adopt at the federal level in my own
capacity as a regulator. The whole approach of the Clean Air Act is to force the
development of new types of emission control technology where that is needed by
compelling the industry to "catch up" to some degree with newly promulgated
standards. Such an approach ... may be attended with costs, in the shaped of
reduced product offering, or price or fuel economy penalties, and by risks that a
wider number of vehicle classes may not be able to complete their development
work in time. Since a balancing of risks and costs against the potential benefits
from reduced emissions is a central policy decision for any regulatory agency
24 "Waiver of Application of Clean Air Act to California State Standards," 36 FR 17458 (Aug. 31, 1971).
Note that the more stringent standard expressed here, in 1971, was superseded by the 1977 amendments to
section 209, which established that California must determine that its standards are, in the aggregate, at
least as protective of public health and welfare as applicable Federal standards. In the 1990 amendments to
section 209, Congress established section 209(e) and similar language in section 209(e)(l)(i) pertaining to
California's nonroad emission standards which California must determine to be, in the aggregate, at least as
protective of public health and welfare as applicable federal standards.
25 See, e.g., MEMA I.
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under the statutory scheme outlined above, I believe I am required to give very
substantial deference to California's judgments on this score.26
Similarly, EPA has stated that the text, structure, and history of the California
waiver provision clearly indicate both a Congressional intent and appropriate EPA
practice of leaving the decision on "ambiguous and controversial matters of public
policy" to California's judgment.27 This interpretation is supported by relevant discussion
in the House Committee Report for the 1977 Amendments to the CAA. Congress had the
opportunity through the 1977 Amendments to restrict the preexisting waiver provision
but elected instead to expand California's flexibility to adopt a complete program of
motor vehicle emission controls. The report explains that the amendment is intended to
ratify and strengthen the preexisting California waiver provision and to affirm the
underlying intent of that provision, that is, to afford California the broadest possible
discretion in selecting the best means to protect the health of its citizens and the public
welfare.28
C. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit made clear in MEMA /,
opponents of a waiver request by California bear the burden of showing that the statutory
criteria for a denial of the request have been met:
[T]he language of the statute and its legislative history indicate that
California's regulations, and California's determinations that they comply
with the statute, when presented to the Administrator are presumed to
satisfy the waiver requirements and that the burden of proving otherwise is
on whoever attacks them. California must present its regulations and
findings at the hearing and thereafter the parties opposing the waiver
26 "California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption," 40 FR
23102, 23104 (May 28, 1975).
21 Id. at 23103-04.
28 MEMA I at 1110 (citing H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)).
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request bear the burden of persuading the Administrator that the waiver
request should be denied.29
The Administrator's burden, on the other hand, is to make a reasonable evaluation of the
information in the record in coming to the waiver decision. As the Court in MEMA I
stated: "here, too, if the Administrator ignores evidence demonstrating that the waiver
should not be granted, or if he seeks to overcome that evidence with unsupported
assumptions of his own, he runs the risk of having his waiver decision set aside as
'arbitrary and capricious.'"30 Therefore, the Administrator's burden is to act
"reasonably."31
With regard to the standard of proof, the court in MEMAI stated that the
Administrator's role in a CAA section 209 proceeding is to "consider all evidence that
passes the threshold test of materiality and ... thereafter assess such material evidence
against a standard of proof to determine whether the parties favoring a denial of the
waiver have shown that the factual circumstances exist in which Congress intended a
denial of the waiver."32 The court in MEMA I considered the standards of proof under
CAA section 209 for the two findings related to granting a waiver for an "accompanying
enforcement procedure." Those findings involve: (1) whether the enforcement procedures
impact California's protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with CAA section 202(a). The principles set forth
by the court, however, are similarly applicable to an EPA review of a request for a waiver
29 MEMA I at 1121.
30 Id. at 1126.
31 Id.
32 Id. at 1122.
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of preemption for a standard. The court instructed that "the standard of proof must take
account of the nature of the risk of error involved in any given decision, and it therefore
varies with the finding involved. We need not decide how this standard operates in every
waiver decision."33
With respect to the protectiveness finding, the court upheld the Administrator's
position that, to deny a waiver, there must be "clear and compelling evidence" to show
that proposed enforcement procedures undermine the protectiveness of California's
standards.34 The court noted that this standard of proof also accords with the
Congressional intent to provide California with the broadest possible discretion in setting
regulations it finds protective of the public health and welfare.35
With respect to the consistency finding, the court did not articulate a standard of
proof applicable to all proceedings but found that the opponents of the waiver were
unable to meet their burden of proof even if the standard were a mere preponderance of
the evidence. Although MEMA I did not explicitly consider the standard of proof under
CAA section 209 concerning a waiver request for "standards," as compared to
accompanying enforcement procedures, there is nothing in the opinion to suggest that the
Court's analysis would not apply with equal force to such determinations. EPA's past
waiver decisions have consistently made clear that: "[E]ven in the two areas concededly
reserved for Federal judgment by this legislation—the existence of 'compelling and
extraordinary' conditions and whether the standards are technologically feasible—
33 Id.
34Id.
35 Id.
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Congress intended that the standards of EPA review of the State decision to be a narrow
one."36
I). EPA's Administrative Process in Consideration of California's Request
On April 26, 2024, EPA published & Federal Register notice announcing its
receipt of California's authorization request. In that notice, EPA invited public comment
on the 2022 Off-Road Amendments and announced a public hearing.37
EPA requested comment on the 2022 Off-Road Amendments, and whether they
meet the criteria for a full authorization. Specifically, EPA requested public comment on:
(a) whether CARET s determination that its standards, in the aggregate, are at least as
protective of public health and welfare as applicable federal standards is arbitrary and
capricious, (b) whether California needs such standards to meet compelling and
extraordinary conditions, and (c) whether California's standards and accompanying
enforcement procedures are consistent with CAA section 209.
Following the April 2024 Federal Register notice, a public hearing was held on
May 16, 2024. EPA received written comments from both health and environmental
organizations, industry, manufacturers and end users, and individuals, all of which can be
found, along with a transcript of the public hearing including all oral testimonies
provided, in the public docket. 38
36 See, e.g., 40 FR at 23103.
37 89 FR 32422 (April 26, 2024).
38 Earthjustice et al. (Earthjustice), EPA-HQ-OAR-2023-0581-0029; California Air Resources Board
(CARB I), EPA-HQ-OAR-2023-0581-0030; California Air Resources Board (CARB II), EPA-HQ-OAR-
2023-0581-0033; Alliance of Nurse for Healthy Environment et al. (ANHE), EPA-HQ-OAR-2023-0581-
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III. Response to Comments Regarding the Authorization Criteria
In this section, EPA addresses the comments received with respect to the three
authorization criteria.
A. First A uthorization Criterion
CAA section 209(e)(2)(A)(i) instructs that EPA cannot grant an authorization if
the Agency finds that California was arbitrary and capricious in its determination that its
standards will be, in the aggregate, at least as protective of public health and welfare as
applicable Federal standards.
EPA's evaluation of this first authorization prong is performed under the
construct explained here. CAA section 209(e)(2)(A)(i) requires EPA to grant an
authorization unless the Administrator finds that California has been arbitrary and
capricious in its determination that its State standards will be, in the aggregate, at least as
protective of public health and welfare as applicable Federal standards. EPA may not
disregard California's determination unless there is "clear and compelling evidence" to
the contrary.39 Moreover, "[t]he language of the statute and its legislative history
indicate that California's regulations, and California's determination that they comply
with the statute, when presented to the Administrator are presumed to satisfy the waiver
0035; National Association of Clean Air Agencies (NACAA), EPA-HQ-OAR-2023-0581-0036. American
Fuel & Petrochemical Manufacturers (AFPM), EPA-HQ-OAR-2023-0581-0034. EPA also received a
comment from American Free Enterprise Chamber of Commerce (EPA-HQ-OAR-2023-0581-0037) which
exclusively addresses CARB's request for authorization for its 2022 amendments to the In-Use Diesel-
Fueled Transport Refrigeration Units standards. That comment addressed a different proceeding and is thus
beyond the scope of this action. An identical comment was posted by American Free Enterprise Chamber
of Commerce in response to that authorization request (EPA-HQ-OAR-2024-0030-0034) and is addressed
in the corresponding decision document.
39 MEMAI at 1121-22.
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requirements."40 Additionally, "the parties opposing the waiver request bear the burden
of persuading the Administrator that the waiver request should be denied."41
CARB states that, in adopting the 2022 Off-Road Amendments, the Board
determined that the requirements related to the control of emissions associated with the
2022 Off-Road Amendments will not cause California's nonroad engine and equipment
emission standards, in the aggregate, to be less protective of public health and welfare
than applicable federal standards.42
CARB's notes that its initial Off-Road Regulations required owners of in-use off-
road diesel fleets to meet fleet average emission rates targets for PM and NOx based on
fleet size.43 Fleet owners could meet these targets by retrofitting their vehicle's exhaust
system, replacing the existing engines with cleaner-emitting engines, replace higher-
emitting vehicles with cleaner vehicles, retiring higher-emitting vehicles, or designating
high-emitting vehicles as low-use vehicles.44 CARB states that the 2022 Off-Road
Amendments strengthen these requirements by requiring fleet owners to phase out, based
on fleet size, vehicles powered by Tier 0, 1, and 2 off-road engines and certain model
years of on-road engines beginning in 2024 through 2036.45 The amendments further
prohibit fleet owners, based on fleet size, from adding vehicles powered by Tier 3 or 4
off-road engines, as well as model year 2006 and older on-road engines.46 The
40 Id. See also Ford Motor Co. v. Envtl. Prot. Agency, 606 F.2d 1293, 1297 (D.C. Cir. 1979).
41MEMAI at 1121.
42 Off-Road Authorization Support Document at 13; CARB Board Resolution 22-19, EPA-HQ-OAR-2023-
0581-0010 at 11.
43 Off-Road Authorization Support Document at 2.
44 Id. at 3.
45 Id. at Table 1.
46 Id. at Table 2.
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amendments also eliminate the ability for fleet owners to designate high-emitting
vehicles as low-use, which had previously allowed high-emitting vehicles to operate
indefinitely.47
EPA notes that its traditional practice, followed here, is to examine the specific
standards that CARB has submitted for authorization and to compare the stringency of
such standards to the relevant federal standards. If CARB's standards are more stringent
than the relevant federal standards, then there is no possibility that the submitted
standards could render CARB's nonroad program less protective than the federal
program. Given this and EPA's prior findings regarding CARB's protectiveness
determinations for its nonroad program, that means CARB's determination that its
nonroad program is at least as protective as the federal program is not arbitrary and
capricious, and the first authorization criterion is satisfied. In addition, in the event that it
appears that a specific CARB standard may be less stringent than an applicable federal
standard, then EPA will evaluate whether California's standards as a whole are "in the
aggregate" as protective of public health and welfare as applicable federal standards for
nonroad vehicles and engines.48 In that circumstance, even if the standards in question
are less stringent than the relevant federal standards, so long as California's nonroad
standards, in the aggregate, are more stringent than the federal standards, the first
authorization criteria is satisfied.
47 Id. at 6.
48 EPA also evaluates the first authorization criterion by assessing the numerical stringency of CARB's
standard compared to applicable Federal standards. Section 209(b)(2) supports this approach.
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CARB notes that the changes to California's nonroad emissions program that
allow fleet owners to comply with the fleet-average emissions target by equipping their
vehicles with engines certified to California or federal Final Tier 4 off-road engine
standards do not undermine the relative protectiveness of California's standards in the
aggregate, as the California Final Tier 4 off-road engine standards are essentially aligned
with the federal standards.49 Similarly, the changes that allow fleet owners to comply
with the fleet-average emissions target by equipping their vehicles with 2007 or newer
model year engines certified to California's on-road engine standards do not undermine
the relative protectiveness of California's standards in the aggregate, because those
standards are at least as protective of the public health and welfare as applicable federal
standards since EPA does not have in-use nonroad standards.50
CARB further notes that the provisions of the 2022 Off-Road Amendments that
establish emissions standards and other requirements for in-use off-road engines are
unquestionably more protective of public health and welfare than applicable federal
requirements, as EPA lacks authority to regulate emissions from in-use engines or
equipment under the CAA.51 Finally, CARB notes that the voluntary zero-emission
compliance flexibility provisions of the 2022 Off-Road Amendments are indisputably
more protective than applicable federal requirements as it establishes emissions standards
requiring new off-road engines to emit no emissions of air pollutants.52 Thus, CARB
concludes that the 2022 Off-Road Amendments cannot be less protective than applicable
49 Id. at 13.
50 Id.
51 Id. at 13-14.
52 Id. at 14.
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federal standards as they individually and collectively increase the stringency of
California's existing Off-Road Regulations.53
EPA received no comments regarding whether the 2022 Off-Road Amendments
are less protective of public health and welfare as applicable federal standards. Because
CARET s standards are aligned with EPA standards for new off-road engines, and because
EPA lacks authority under CAA section 209 to regulate in-use off-road engines, it is
readily apparent that CARB's Off-Road standards are at least as protective as
corresponding federal standards. Therefore, EPA cannot find that CARB was arbitrary
and capricious in its protectiveness determination and cannot deny CARB's authorization
request based on a finding under CAA section 209(e)(2)(A)(i).
One commentor argued that CARB was arbitrary and capricious for not
considering lifecycle emissions of zero-emission vehicles and for not considering how
the 2022 Off-Road Amendments may result in relocation of older, higher emitting
nonroad diesel powered engines and equipment out of the state which would reduce
expected emissions reductions.54 This commentor also argues that the 2022 Off-Road
Amendments limit consumer choice by phasing out older, higher emitting nonroad
engines and equipment and that CARB should have considered carbon reductions
achieved by utilizing other liquid fuels.55 The commentor did not tie these later
arguments to any of the three criteria prongs under section 209(e)(2)(A). Because EPA's
53 Id.
54 AFPM at 3-4.
55 AFPM at 3.
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review of CARB's authorization is limited to the statutory criteria, the commenter's
failure to address the statutory criteria is fatal to its arguments.
Regardless, even were EPA to further evaluate this comment on its substantive
merits, we would still disagree with the commenter. These arguments seem most closely
directed at the arbitrary and capricious review of California's protectiveness
determination under the first prong and thus are addressed here. As noted above, EPA's
scope of review of CARB's authorization request is narrow and is limited to the criteria
in section 209(e)(2)(A). While EPA appreciates this commenter's concern for the
accuracy in the emission reduction estimates, neither this commenter nor any other has
submitted information, data, or arguments as to why claimed inaccuracies would render
CARB's standards, whether alone or in the aggregate, to be less protective than
applicable federal standards. Any emission reductions from California's regulation of in-
use nonroad vehicles or engines, including those from off road diesel fleets, would
support a finding that the State's standards are as protective as the federal standards since
EPA does not establish any in-use emission standards for nonroad vehicles or engines.
This would be true whether the State's standards are considered in the aggregate or
individually. The commenters' claim that reductions resulting from the submitted
standards may not be as large as estimated by CARB, even if true, would not undermine
the State's protectiveness determination.
Further, EPA disagrees that California must consider life cycle emissions,
including emissions from stationary sources, in the protectiveness determination. The
CAA does not require California to conduct a specific kind of public health and welfare
analysis, prescribe a method that California must use to make a protectiveness
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determination, or specifically require the State to consider emissions from sources other
than those regulated by the standards submitted for authorization. The text of CAA
section 209(e)(2) requires a comparison of State and Federal emission standards and does
not suggest that in reviewing the State's determination EPA may deny the waiver based
on emissions from sources other than the regulated nonroad engines and vehicles.
Finally, EPA has recognized that the intent of Congress in creating a limited
review based on specifically listed criteria was to ensure that the Federal government did
not second-guess state policy choices.56 As such, it would be inappropriate for EPA to
consider CARB's policy choices and objectives in adopting its nonroad vehicle and
engine standards designed to achieve long term emission benefits in this action. The
impact of the state standards on the consumer goods market or whether California should
have considered alternative means of emissions reduction are issues left to the sound
discretion of the state in selecting the best means to protect the health of its citizens and
the public welfare.57
Accordingly, for the reasons noted above, EPA cannot find that CARB's
protectiveness finding is arbitrary and capricious, nor can we deny CARB's request for
authorization of its 2022 Off-Road Amendments based on this criterion.
B. Second Authorization Criterion
Under CAA section 209(e)(2)(A)(ii), EPA must grant an authorization for
California nonroad vehicle and engines standards and accompanying enforcement
56 See, 40 FR at 23103.
51MEMA / at 1110 (citing H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)).
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procedures unless EPA finds that California "does not need such State standards to meet
compelling and extraordinary conditions." EPA has traditionally interpreted this
provision, consistent with its interpretation of similar language in CAA section
209(b)(1)(B), as requiring consideration of whether conditions in California justify the
need for a separate nonroad vehicle and engine program to meet compelling and
extraordinary conditions, and not whether any given standard or set of standards is
necessary to meet such conditions.58
Congress has not disturbed this reading of CAA section 209(b)(1)(B), and
209(e)(2)(A)(ii), as calling for EPA review of conditions in California rather than the
standards being considered for waiver or authorization. With two exceptions, EPA has
consistently interpreted this provision as requiring the Agency to consider whether
California needs a separate motor vehicle emission program (or nonroad program) rather
than the specific standards in the request at issue to meet compelling and extraordinary
conditions. Congress intended to allow California to address its extraordinary
environmental conditions and foster its role as a laboratory for motor vehicle emissions
control. The Agency's longstanding practice therefore has been to evaluate CARB's
requests with the broadest possible discretion to allow California to select the means it
determines best to protect the health and welfare of its citizens in recognition of both the
harsh reality of California's air pollution and the importance of California's ability to
serve as a pioneer and a laboratory for the nation in setting new motor vehicle emission
58 See e.g., 82 FR 6525 (January 19, 2017); 78 FR 58090 (September 20, 2013).
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standards and developing control technology.59 EPA notes that "the statute does not
provide for any probing substantive review of the California standards by federal
officials."60 As a general matter, EPA has applied the traditional interpretation in the
same way for all air pollutants, criteria and GHG pollutants alike.61
In a departure from its long-standing interpretation, EPA has on two separate
instances limited its interpretation of this provision to California motor vehicle standards
that are designed to address local or regional air pollution problems.62 In both instances
EPA determined that the traditional interpretation was not appropriate for standards
designed to address a global air pollution problem and its effects and that it was
appropriate to address such standards separately from the remainder of the program (what
became known as the "alternative interpretation").63 However, shortly after both
instances, EPA explained that the reinterpretation of the second waiver prong in this
manner is flawed and the alternative interpretation is inappropriate, finding that the
59 See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) (The waiver of preemption is for California's
"unique problems and pioneering efforts."); 113 Cong. Rec. 30950, 32478 ("[T]he State will act as a testing
agent for various types of controls and the country as a whole will be the beneficiary of this research.")
(Statement of Sen. Murphy).
60 Ford Motor at 1300.
61 74 FR 32744, 32763 (July 8, 2009); 76 FR 34693 (June 14, 2011); 79 FR 46256 (Aug. 7, 2014); 81 FR
95982 (Dec. 29, 2016); 88 FR 20688 (Apr. 6, 2023).
62 73 FR 12156 (March 8, 2008); 84 FR 51310 (September 27, 2019).
63 In SAFE 1, EPA withdrew a portion of the waiver it had previously granted for California's Advanced
Clean Cars (ACC) program— specifically, the waiver for California's zero emission vehicle (ZEN)
mandate and the GHG emission standards within California's ACC program. EPA based its action, in part,
on its determination that California did not need these emission standards to meet compelling and
extraordinary conditions, within the meaning of section 209(b)(1)(B) of the CAA. That determination was
in turn based on EPA's adoption of a new, GHG-pollutant specific interpretation of section 209(b)(1)(B). In
any event, EPA expressly stated that its new interpretation of section 209(b)(1)(B) only applied to waiver
requests for GHG emission reducing standards, SAFE 1 at 51341, n. 263. Therefore, even if EPA still
maintained the SAFE 1 interpretation (which EPA does not agree with for the reasons explained in the
SAFE 1 Reconsideration Decision (87 FR 14332 (March 14, 2022)), EPA's traditional interpretation would
still apply to this nonroad authorization request given all of the standards at issue are related to the
reduction of criteria pollutant emissions.
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traditional interpretation—in which EPA reviews the need for California's motor vehicle
program as a whole—is the best interpretation.64
CARB states that, under either EPA's traditional interpretation of this criterion, or
under an alternative interpretation that considers California's need for particular
standards, EPA has no basis to deny this authorization request under this criterion.65
CARB notes that the Administrator has consistently recognized that California satisfies
the second criterion for waivers and authorizations—that the State has "compelling and
extraordinary conditions" and therefore continues to need its own motor vehicle and
motor vehicle engine, and nonroad engine and equipment emissions control programs,
respectively.66
CARB further notes that California, particularly in the South Coast and San
Joaquin Valley Air Basins, continues to experience some of the worst air quality in the
nation. Four areas in California are in nonattainment with the National Ambient Air
Quality Standards (NAAQS) for PM2.5. California's South Coast and San Joaquin Valley
Air Basins, in particular, continue to be in extreme non-attainment with NAAQS for
ozone and in serious non-attainment with NAAQS for PM.67 Currently, 17 areas within
California, are non-attainment areas for NAAQS for ozone, with 9 of those classified as
Moderate and above the 70 parts per billion (ppb) ozone standard.68 CARB identified
emissions from nonroad engines subject to the 2022 Off-Road Amendments as a
64 74 FR 32744 (July 8, 2009); SAFE 1 Reconsideration Decision at 14333-34, 14352-55, 14358-62.
65 Off-Road Authorization Support Document at 14.
66 Id.
67 https://www3.epa.gov/airqualitv/greenbook/ancl.html#CA. last consulted December 19, 2024, located at
EPA-HQ-OAR-2023 -0581.
68 Off-Road Authorization Support Document at 15.
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significant source of NOx emissions and concluded that the Amendments "are necessary
to achieve additional criteria emissions reductions in order to meet California's SIP
targets and attain the NAAQS in California.69
CARB maintains that even if EPA applies a narrower standards-specific inquiry,
the record demonstrates that California "needs" the emissions-related requirements of the
2022 Off-Road Amendments to reduce criteria emissions in California. CARB's findings
confirmed that nonroad diesel vehicles regulated by the Amendments are a significant
source of fine PM and NOx emissions statewide, accounting for 7 percent of statewide
PM emissions and 14 percent of statewide NOx emissions in 2022.70 The Amendments
are a critical component of California's 2022 State Implementation Plan (SIP), which
requires a reduction of NOx emissions by four tons per day by 2037,71 and will reduce
health risks including premature deaths caused by exposure to emissions from nonroad
diesel engines, especially in communities that experience disproportionate burdens from
exposure to toxic air contaminants.72 CARB concludes that EPA has consistently found
that California "needs" emissions standards to address the compelling and extraordinary
conditions resulting from criteria pollutants as described above, and therefore has no
basis to find that the 2022 Amendments do not satisfy the "compelling and
extraordinary" criterion.73
69 Id.
70 Id. at 16.
71ISOR at 43.
72 Off-Road Authorization Support Document at 16-17.
73 53 FR7022 (Mar. 4, 1988); 55 FR43029, 43031 (Oct. 25, 1990); 69 FR 60995 (Oct. 14, 2004); 79 FR at
46261-62; 84 FR51344, 51346 (Sept. 27, 2019).
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EPA did not receive any comments challenging California's need for its nonroad
engines and vehicles emission program (including the 2022 Off-Road Amendments) to
address compelling and extraordinary conditions under section 209(e)(2)(A)(ii). Based on
a review of the record, the opponents of authorization have not demonstrated that
California does not need its nonroad emissions program, including the 2022 Off-Road
Amendments, to meet compelling and extraordinary conditions. Therefore, EPA cannot
deny the authorization request under CAA section 209(e)(2)(A)(ii) based on EPA's
traditional interpretation of the criterion. In addition, in the event that the need for
CARETs 2022 Off-Road Amendments is to be independently evaluated, the opponents of
authorization have not demonstrated that California does not need the 2022 Off-Road
Amendments to meet compelling and extraordinary conditions. As noted above, there
continues to be compelling and extraordinary conditions in California that are giving rise
to serious air quality issues throughout the state. The Amendments, based on information
in the record, will reduce statewide emissions of criteria pollutants that are designed to
help mitigate the serious air quality conditions.74 Therefore, EPA cannot deny the
authorization request under CAA section 209(e)(2)(A)(ii), under an alternative
interpretation that requires an assessment of each CARB standard within this second
criterion.75
74 Off-Road Authorization Support Document at 1.
75 EPA does not believe the alternative interpretation is correct but nevertheless provides its analysis and
conclusion under this interpretation.
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C. Third Authorization Criterion
CAA section 209(e)(2)(A)(iii) instructs that EPA cannot grant an authorization if
California's standards and enforcement procedures are not consistent with "this section."
As noted above, EPA's 1994 rule sets forth, among other things, regulations providing
the criteria, as found in CAA section 209(e)(2)(A), which EPA must consider before
granting any California authorization request for new nonroad engine or vehicle emission
standards.76 EPA has historically interpreted the CAA section 209(e)(2)(A)(iii)
"consistency" inquiry to require, at minimum, that California standards and enforcement
procedures be consistent with CAA section 209(a), section 209(e)(1), and section
209(b)(1)(C) (as EPA has interpreted that subsection in the context of section 209(b)
motor vehicle waivers).77
1. Consistency with CAA section 209(a)
To be consistent with CAA section 209(a), California's 2022 Off-Road
Amendments must not apply to new motor vehicles or new motor vehicle engines. This is
the case. The Amendments expressly apply only to nonroad engines and do not apply to
motor vehicles or engines used in motor vehicles as defined by CAA section 216.We did
not receive any comments on California's consistency with CAA section 209(a).
Therefore, EPA cannot deny California's request on the basis that California's 2022 Off-
Road Amendments are not consistent with CAA section 209(a).
76 See 40 CFR Part 1074.
77 59 FR at 36982-83.
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2. Consistency with CAA section 209(e)(1)
To be consistent with CAA section 209(e)(1), California's 2022 Off-Road
Amendments must not affect new farm or construction equipment or vehicles that are
below 175 horsepower, or new locomotives or new engines used in locomotives. CARB
notes that its 2022 Off-Road Amendments do not affect such permanently preempted
vehicles of engines.78 EPA did not receive any comments regarding California's
consistency with section 209(e)(1). Therefore, EPA cannot deny California's request on
the basis that California's 2022 Off-Road Amendments are not consistent with section
209(e)(1).79
3. Consistency with CAA section 209(b)(1)(C)
a. Historical Context
The requirement that California's standards be consistent with CAA section
209(b)(1)(C) effectively requires consistency with CAA section 202(a). EPA has
interpreted consistency with CAA section 202(a) using a two-pronged test: (1) whether
there is sufficient lead time to permit the development of technology necessary to meet
the standards and other requirements, giving appropriate consideration to the cost of
compliance in the time frame provided, and (2) whether the California and Federal test
procedures are sufficiently compatible to permit manufacturers to meet both the state and
78 Off-Road Authorization Support Document at 17.
79 EPA notes that 40 CFR, Part 1074, section 1074.10(a) codifies the prohibition in CAA section 209(e)(1)
and provides that state and localities are preempted from adopting and enforcing standards or other
requirements relating to the control of emissions from new engines smaller than 175 horsepower that are
primarily used in farm or construction equipment or vehicles, as defined in Part 1074. 40 CFR 1074.5
provides definitions of the terms used in 40 CFR 1074.10(a). EPA anticipates that CARB will implement
its Off-Road regulations consistent with these federal regulatory provisions.
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Federal test requirements with one test vehicle or engine.80 We often refer to the first
element by the shorthand of technological feasibility (or technological infeasibility). The
scope of EPA's review of whether California's action is consistent with CAA section
202(a) is narrow. The determination is limited to whether those opposed to authorization
have met their burden of establishing that California's standards are technologically
infeasible, or that California's test procedures impose requirements inconsistent with the
Federal test procedures.81
Under CAA section 209(b)(1)(C), EPA must grant California's waiver (and
authorization) request unless the Agency finds that California standards and
accompanying enforcement procedures are "not consistent" with CAA section 202(a).
CAA section 202(a)(2) specifies that standards are to "take effect after such period as the
Administrator finds necessary to permit the development and application of the requisite
technology, giving appropriate consideration to the cost of compliance within such
period."
EPA has long limited its evaluation of whether California's standards are
consistent with CAA section 202(a) to determining if: (1) There is inadequate lead time
to permit the development of the necessary technology giving appropriate consideration
to the cost of compliance within that time period; or whether (2) California and Federal
test procedures are incompatible so that a single vehicle could not be subjected to both
tests. EPA has also explained that "the import of section 209(b) is not that California and
80 See 61 FR 53371, 53372 (Oct. 11, 1996).
81MEMAI at 1126.
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Federal standards be identical, but that the Administrator not grant a waiver of Federal
preemption where compliance with the California standards is not technologically
feasible within available lead time."82 Further, EPA's review is limited to the record on
feasibility of the technology. Therefore, EPA's review is narrow and does not extend to,
for example, whether the regulations under review are the most effective, whether the
technology incentivized by California's regulations are the best policy choice, whether
EPA has the authority under the CAA to set such standards (versus California's sovereign
authority to set its standards), or whether better choices should be evaluated. The
Administrator has thus long explained that "questions concerning the effectiveness of the
available technology are also within the category outside my permissible scope of
inquiry," under section CAA 209(b)(1)(C).83
California's accompanying enforcement procedures would also be inconsistent
with CAA section 202(a) if the Federal and California test procedures conflicted, i.e., if
manufacturers would be unable to meet both the California and Federal test requirements
with the same test vehicle.
In determining whether there is inadequate lead time to permit the development of
technology, EPA considers whether adequate technology is presently available or already
in existence and in use. If technology is not presently available, EPA will consider
whether California has provided adequate lead time for the development and application
82 46 FR 22032, 22034-35 (April 15, 1981).
83 41 FR 44209, 44210 (October 7, 1976); 47 FR 7306, 7310 (February 18, 1982) ("I am not empowered
under the Act to consider the effectiveness of California's regulations, since Congress intended that
California should be the judge of 'the best means to protect the health of its citizens and the public
welfare.'" (Internal citations omitted)).
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of necessary technology prior to the effective date of the standards for which a waiver is
being sought.
Additionally, the D.C. Circuit has held that "[i]n the waiver context, section
202(a) relates in relevant part to technological feasibility and to federal certification
requirements. The technological feasibility component of section 202(a) obligates
California to allow sufficient lead time to permit manufacturers to develop and apply the
necessary technology. The federal certification component ensures that the Federal and
California test procedures do not impose inconsistent certification requirements. Neither
the Court nor the agency has ever interpreted compliance with section 202(a) to require
more."84
Regarding the costs portion of the technology feasibility analysis, when cost is at
issue EPA evaluates the cost of developing and implementing control technology in the
actual time provided by the applicable California regulations. The D.C. Circuit has stated
that compliance cost "relates to the timing of a particular emission control regulation."85
The Court, in MEMA /, opined that CAA section 202's cost of compliance concern,
juxtaposed as it is with the requirement that the Administrator provide the requisite lead
time to allow technological developments, refers to the economic costs of motor vehicle
emission standards and accompanying enforcement procedures.86
84 Motor Equipment Manufacturers Association v Nichols (MEMA II) 143 F.3d 449 (D.C. Cir 1998).
85 MEMAI at 1119.
86 Id. See S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. Rep. No. 728 90th Cong., 1st Sess. 23
(1967), reprinted in U.S. Code Cong. & Admin. News 1967, p. 1938. It relates to the timing of a particular
emission control regulation rather than to its social implications.
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b. CARB's 2022 Off-Road Amendments and Comments Received
CARB notes that the 2022 Off-Road Amendments present no compliance issues
regarding technical feasibility or lead time because the technologies needed to comply
with the requirements exist and are readily available. Tier 3 engines have been available
since the 2006 model year, Tier 4 Interim engines have been available for more than a
decade, and Tier 4 Final engines have been manufactured since 2014.87 CARB further
notes that its Tier 4 Final standards are essentially aligned with the Federal Tier 4 Final
standards, and EPA fully considered the technological feasibility and economic costs
associated with the Federal Tier 4 Final standards in its rulemaking action promulgating
those standards.88 CARB also notes that the zero-emission flexibility provisions do not
pose issues of technical feasibility or lead time as the provisions are voluntary
compliance flexibility options and do not impose any requirements on fleets.89
Regarding costs, CARB provides estimates of the costs of compliance associated
with the 2022 Off-Road Amendments for fleets of different sizes, and fleets operated by
state and federal government. CARB also considered research and development costs and
costs of compliance for prime contractors. In its analysis, CARB considered direct
incremental costs—vehicle capital costs, off-road diesel vehicle Tier 4 final maintenance
costs, and administrative costs for reporting and review of fleet certificates associated
with the public works awarding bodies and prime contractors provisions. CARB
concluded that costs to fleets are higher in the earlier years of the 2022 Off-Road
87 Off-Road Authorization Support Document at 18-19.
88 Id. at fn 66; 75 FR 8056, 8057 (Feb. 23, 2010).
89 Off-Road Authorization Support Document at 19.
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Amendments and reduced in later years.90 A typical ultra-small fleet91 would see an
increased incremental cost of $35,906 during the analysis period from 2023-2038.92 In
that same fifteen year time period, a typical small fleet would see an increased cost of
$2,351;93 a typical medium fleet would see an increased cost of $209,840;94 and a typical
large fleet would see an increased cost of $338,002.95 CARB then compared the
maximum amortized annual cost of compliance with the average revenues of businesses
in affected industries, concluding that the maximum amortized cost for a large fleet
would represent less than 1 percent of average annual revenues for firms with 100
employees or greater and the maximum amortized cost for an ultra-small fleet would
represent between 0.2 to 1.7 percent of average annual revenues for firms with fewer than
100 employees.96
Regarding consistency of test procedures, CARB argues in their authorization
request that the 2022 Off-Road Amendments present no issues of inconsistency between
federal and California test procedures because the Amendments do not alter the test
procedures for certifying in-use engines.97 CARB notes that engines are required to be
certified to applicable nonroad emission standards set by EPA or CARB for the engine
family, under test procedures associated with those emission standards. Additionally,
CARB states that EPA does not have in-use standards and test procedures and lacks the
90 Id. at 20.
91 An ultra-small fleet is a subset of small fleets that have less than 500 total hp. The 2022 Off-Road
Amendments included some delayed compliance deadlines for these smallest fleets.
92 Final Statement of Reasons 399 Form (FSOR 399), EPA-HQ-OAR-2023-0581-0015 at 37.
93 Id. at 44.
94 Id. at 41-42.
95 Id. at 39.
96 Id. at 44-45.
97 Off-Road Authorization Support Document at 21.
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authority to adopt such requirements.98 EPA did not receive any comments regarding the
consistency of California's test procedures with federal test procedures.
One commenter asserted that CARB's 2022 Off-Road Amendments are infeasible
without providing any information, data, or arguments to support the claim. As stated
above, the requisite technologies to comply with the 2022 Off-Road Amendments are
already commercially available and have been since at least 2014. The commenter later
states that the amendments would add "significant costs" to operate a diesel fleet, but
again provides no evidence demonstrating how much costs would increase."
While costs may indeed increase because of the 2022 Off-Road Amendments, this
does not in and of itself call for denial of CARB's request under this criterion, even if the
increase is significant.100 Indeed, to deny CARB's authorization request on the basis of
the cost of compliance under CAA section 209(b)(1)(C), EPA must find that the costs are
excessive.101 Further, CARB's analysis shows a small increase in compliance cost
9Sld.
99 AFPMat 1, 3.
100 See ATA v EPA, 600 F.3d 624, 629 (D.C. Cir. 2010) ("In approving the California TRU rule, EPA
adequately considered those costs. EPA explained that businesses can comply with the TRU rule for about
$2,000 to $5,000 per unit. J. A. 584. EPA also determined that the phased implementation of the rule would
help minimize its cost. Although the costs of the TRU rule are not insignificant, EPA's duty under this
portion of the statute is simply to consider those costs. It did so here. EPA's conclusion — namely that
California's rule was consistent with § 7521(a)(2) — was reasonable and reasonably explained.").
101 See 88 FR at 20705-06 ("Previous waiver decisions are fully consistent withMEM4 /, which indicates
that the cost of compliance must reach a very high level before the EPA can deny a waiver. Therefore, past
decisions indicate that the costs must be excessive to find that California's standards are infeasible and
therefore inconsistent with section 202(a).") (citing 47 FR 7306, 7309 (Feb. 18, 1982); 43 FR 25735 (Jun.
14, 1978); 46 FR 26371, 26373 (May 12, 1981)). EPA has followed this approach in a number of previous
waivers. See, e.g., 38 FR 30136 (Nov. 1, 1973); 40 FR 30311 (July 18, 1975); 71 FR 335 (Jan. 4, 2006)
(2007 Engine Manufacturers Diagnostic standards); 70 FR 50322 (August 26, 2005) (2007 California
Heavy-Duty Diesel Engine Standards); 77 FR 9239 (February 16, 2012) (HD Truck Idling Requirements);
78 FR 2111, 2132 (Jan. 9, 2013); 79 FR 46256 (Aug. 7, 2014) (the first HD GHG emissions standard
waiver, relating to certain new 2011 and subsequent model year tractor-trailers); 81 FR 95982 (December
29, 2016) (the second HD GHG emissions standard waiver, relating to CARB's "Phase I" regulation for
2014 and subsequent model year tractor-trailers); 82 FR 4867 (January 17, 2017) (On-Highway Heavy-
Duty Vehicle In-Use Compliance Program).
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compared to annual revenues of the regulated entities. In addition, given that Tier 4
technology exists, and operators can sell older equipment on the secondary market, cost
increases are ameliorated. The commenter failed to address these considerations or
CARB's evaluation of costs in any meaningful way. Given CARB's detailed quantitative
and conceptual analysis of costs, the commenter's vague speculations about cost
increases are insufficient to meet the waiver opponents' burden of proof,
c. CARB's 2022 Off-Road Amendments are Consistent with Section 202(a)
As explained above, EPA has historically applied a consistency test under CAA
section 202(a) that calls for the Administrator to first review whether adequate
technology already exists, and if it does not, whether there is adequate time to develop
and apply the technology before the standards go into effect. After a review of the record,
information, and comments received in this proceeding, EPA has determined that the
opponents of the authorization request have not demonstrated that CARB's 2022 Off-
Road Amendments are inconsistent with section 202(a). As noted above, CARB's
authorization request indicated that the requisite emissions control technology is
commercially available and has been for at least a decade. Regarding the zero-emissions
compliance flexibility provisions, CARB noted that the provisions are voluntary and thus
do not present issues regarding technical feasibility or lead time. The opponents of
authorization have not demonstrated why the regulatory compliance options, considered
either separately or together, render the 2022 Off-Road Amendments inconsistent with
section 202(a). Therefore, based on the record before us, EPA cannot find that the
opponents of the 2022 Off-Road Amendments authorization have met their requisite
burden of proof to demonstrate that such requirements are inconsistent with CAA section
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202(a). Thus, EPA cannot deny CARB's 2022 Off-Road Amendments authorization
request on this basis, and therefore EPA cannot deny the authorization request based on
the third authorization criterion.
IV. Other Issues
EPA has long construed CAA section 209 as limiting the Agency's authority to
deny California's requests for waivers and authorizations to their respective three listed
criteria under CAA section 209(b) and section 209(e)(2)(A). This narrow review
approach is supported by decades of waiver and authorization practice and judicial
precedent. InMEMA /, the D.C. Circuit held that the Agency's inquiry under CAA
section 209(b) is "modest in scope."102 The D.C. Circuit further noted that "there is no
such thing as a 'general duty' on an administrative agency to make decisions based on
factors other than those Congress expressly or impliedly intended the agency to
consider."103 In MEMA //, the D.C. Circuit again rejected an argument that EPA must
consider a factor outside the 209(b) statutory criteria concluding that doing so would
restrict California's ability to "exercise broad discretion."104 EPA's duty, in the
authorization context, is thus to grant California's authorization request unless one of the
three listed criteria is met. "[SJection 209(b) sets forth the only waiver standards with
which California must comply . . . If EPA concludes that California's standards pass this
test, it is obligated to approve California's waiver application."105 This narrow scope of
102 MEMA I at 1105.
103 Id. at 1116.
l(nMEMAII at 453.
105 Id. at 463.
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review also precludes consideration of constitutional claims,106 which EPA has declined
to consider in the context of a waiver or authorization proceeding since at least 1976.107
EPA has therefore consistently declined to consider factors outside the three statutory
criteria listed in CAA section 209(b) and 209(e)(2)(A).
A commenter alleged in passing various constitutional violations, including the
Major Questions Doctrine, Takings Clause of the Fifth Amendment, Dormant Commerce
Clause, dormant foreign affairs preemption doctrine of the Supremacy Clause, equal
sovereignty doctrine, Import-Export Clause, Privileges and Immunities Clause, and the
Full Faith and Credit Clause.108 They also alleged violations of the California
Environmental Quality Act.109
The arguments in this comment were minimally developed. In any event, as
discussed above, EPA does not consider constitutional challenges in the authorization
proceeding context. EPA's task is limited to consideration of the factors included in CAA
section 209(e)(2)(A). Likewise, EPA's jurisdiction does not extend to considering the
validity of CARB's rules under California law.110 Such concerns are the province of state
106 MEMAI at 1115 (stating "[t]he waiver proceeding produces a forum ill-suited to the resolution of
constitutional claims.").
107 See, e.g., 41 FR 44212 (Oct. 7, 1976) (declining to consider a due process violation claim); 43 FR
32182, 32184 (July 25, 1978) (rejecting constitutional objections as beyond the "narrow" scope of the
Administrator's review).
108 AFPM at 2.
109 Id.
110 EPA notes that CAA section 209(e)(2)(A) 's criteria stand in marked contrast to other sections of the
CAA that do authorize or obligate EPA to evaluate whether the State has legal authority to carry out its
plans. See, e.g., CAA section 110(a)(2)(E) (requiring Title I State Implementation Plans to "provide (i)
necessary assurances that the State ... will have adequate personnel, funding, and authority under State
(and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any
provision of Federal or State law from carrying out such implementation plan or portion thereof)"), CAA
section 112(1)(5) (requiring disapproval of section 112(1) State programs where "adequate authority does
not exist, or adequate resources are not available, to implement the program").
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regulators and state courts, and challengers have had opportunity to address these
concerns throughout the state's regulatory and judicial process.111
V. Decision
After evaluating CARB's authorization request and the Off-Road regulations, the
public comments and other materials contained in the administrative record, EPA is
granting an authorization for the 2022 Off-Road Amendments that CARB submitted for
an authorization under CAA section 209(e)(2)(A).
Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA.
Petitions for judicial review of this action must be filed within 60 days from the date
notice of this final action is published in the Federal Register.
VI. Statutory and Executive Order Reviews
As with past authorization and waiver decisions, this action is not a rule as
defined by Executive Order 12866. Therefore, it is exempt from review by the Office of
Management and Budget as required for rules and regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5
U.S.C. § 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility
analysis addressing the impact of this action on small business entities.
111 The commenter cites generally to its earlier filings in the Advanced Clean Cars II waiver proceeding and
in Ohio v. EPA, No. 22-1081, but fails to elaborate how those filings are applicable to this proceeding,
which involves entirely different regulatory requirements and even different regulated entities. Such
skeletal assertions are insufficient to exhaust these issues within the administrative process. Regardless, to
the extent relevant to respond to this or other comments, EPA incorporates by reference the agency's
decision document for that action, see California State Motor Vehicle and Engine Pollution Control
Standards; Advanced Clean Cars II; Waiver of Preemption Decision Document, EPA-420-R-24-023
(December 2024), as well as the relevant merits arguments made in EPA's response brief in Ohio, see Final
Brief of Respondents, Ohio v. EPA, No. 22-1081 (D.C. Cir. 2023).
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Further, the Congressional Review Act, 5 U.S.C. § 801, etseq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because
this action is not a rule for purposes of 5 U.S.C. § 804(3).112
Dated: January 3, 2025
Acting Administrator.
112 The U.S. Government Accountability Office (GAO) has issued a decision (in the context of its review of
EPA's SAFE I Reconsideration decision) that the Congressional Review Act does not include adjudicatory
orders and also excludes certain categories of rule from coverage, including rules of particular applicability.
As part of this decision, the GAO also determined that even if the SAFE I Reconsideration waiver action
were to satisfy the Administrative Procedure Act's definition of a rule, it would be considered a rule of
particular applicability, and, therefore, would still not be subject to the CRA's submission requirement.
https://www. eao. gov/products/b-334309.
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