Clearing the path for enforcement: EPA grants waiver for CARB's 'Smartway Rule'

By Charlie Morasch, Land Line contributing writer | 8/7/2014

The California Air Resources Board won a regulatory victory this past week when the Environmental Protection Agency ruled in its favor – clearing the path for enforcement of an expensive trucking regulation.

In a decision the EPA posted to its website, EPA approved a waiver to allow enforcement of CARB’s Smartway Rule and its requirements for aerodynamic equipment for trucks and trailers driving in California.

In June 2013, California asked EPA for a waiver of the Clean Air Act to enforce specific parts of its Heavy-Duty Tractor-Trailer Greenhouse Gas Regulation. California wanted to be able to require specific technology for trucks and trailers designed to increase fuel economy and lower greenhouse gas emissions.

Comments filed by the Owner-Operator Independent Drivers Association and the California Construction Trucking Association opposed the rule. Comments also were filed by the American Trucking Association, the California Trucking Association and CARB.

The EPA’s published decision appears to show widely differing cost estimates for complying with the rule, even within CARB headquarters. In 2008, CARB estimated the cost of compliance for the rule to average $2,100 per truck – an amount the air quality agency said would be recovered in fuel savings in 12 to 18 months. 

CARB initially estimated the rule would cost trailers $2,900 on average to comply, including an additional $125 in annual maintenance and reporting costs. CARB thought that cost would be recovered by diesel savings in 18 months. However, CARB changed that estimate to $1,250 per trailer. OOIDA disagreed, estimating costs between $7,520 and $9,325 per trailer and said CARB’s projected cost recovery “is greatly exaggerated.”

OOIDA also argued that SmartWay-certified low-rolling-resistance tires have a shorter life span and are less safe than other tires, and noted the 150 to 350 pounds of weight added by trailer side skirts.

EPA said it can’t deny a waiver while considering implications like authority to set fuel mileage standards residing with the National Highway Traffic Safety Administration. Nor could the waiver be denied because of legal deference to the Commerce Clause of the U.S. Constitution or the Federal Aviation Administration Authorization Act.

OOIDA and others argued that federal fuel mileage standards for new trucks are being regulated by the EPA. The waiver decision pointed out that CARB’s rule is applicable to 2011 through 2013 model year tractors and 2011 and newer model year trailers and reefers pulled by those trucks.

Truckers not based in the Golden State have criticized California’s aggressive emissions regulations for years. Despite the waiver’s direct effect on the CARB regulation, truck owners in other states may also deal with the decision’s ramifications.

The waiver ruling explicitly states other states may follow California’s lead and adopt the Greenhouse Gas Regulation.

"This decision will affect not only persons in California, but also manufacturers and operators nationwide who must comply with California’s requirements,” the waiver decision reads. For these reasons, EPA determines and finds that this is a final action of national applicability, and also a final action of nationwide scope.”

The waiver decision’s official version will be published in the Federal Register.

A challenge of the EPA waiver ruling must be filed within 60 days of the July 30 decision.

Mike Matousek, OOIDA director of state legislative affairs, said EPA’s ruling did little to address numerous concerns the Association posed in its comments about how the rule will affect small business owners.

“CARB has been a disaster from day one, and EPA’s decision to issue this waiver only exacerbates the situation,” Matousek said. “OOIDA challenged CARB’s request, but apparently CARB and EPA aren’t bound by the U.S. Constitution, federal and state laws, nor do they care about the devastating impact their actions will have on small-business truckers and our economy.”

In its published decision, EPA pointed to the “extraordinary circumstances” of California’s particulate issues and air pollution to justify a measure that addresses greenhouse gases – an entirely separate issue, Matousek said.

Because CARB and EPA collect emissions data for a living, the trucking industry has little ammunition when debate over a rule is allowed to be argued solely with emissions statistics, he said.

“The deck is stacked against private industry,” Matousek said. “They don’t have the resources CARB or EPA has to collect the data to show the agency’s decisions are having a negative impact.”

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