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California asks EPA for waiver to implement Advanced Clean Fleets rule

With less than three weeks before California’s Advanced Clean Fleets (ACF) rule is set to take effect, the state is seeking a waiver from the Environmental Protection Agency that would end any questions about whether the state can implement it. 

A waiver request for California-specific environmental regulations is generally required under the federal Clean Air Act (CAA). The CAA allows the state and its unique status under the act to impose environmental restrictions and mandates that go beyond federal law as long as a waiver is granted by EPA. No other state has that ability. 

The EPA in March granted a waiver for the Advanced Clean Trucks rule (ACT), the companion legislation to ACF that is a mandate on truck manufacturers; the ACF is a mandate on the purchasers of what the manufacturers produce. There is no corresponding federal rule as restrictive and mandate-heavy as the ACT.  

The California Air Resources Board submitted the waiver request for ACF in November, but did not make a public announcement of its action. 

The first wave of significant regulations under ACF take effect January 1. The steps that go into effect that day are not particularly onerous and outside of impacts on drayage there is little in the ACF on day one that would require significant steps to be taken while the waiver approval process plays out. 

Whether the California Air Resources Board needed a waiver has long been a subject of hot debate. CARB reportedly has told trucking industry representatives it did not need a waiver, based on its reading of the Clean Air Act; trucking companies disagreed. In its October lawsuit against the ACF, the California Trucking Association said “while CARB may claim otherwise, ACT cannot be enforced until such waiver is granted.”

Elsewhere in the lawsuit, CTA made a similar statement: “CARB is prohibited from enforcing its own emissions standards in the absence of an EPA waiver.”

Whatever feelings CARB may have had on the issue at the time, the waiver request has been filed.

The overarching mandate in the ACF is that no Internal Combustion Engine (ICE) can be sold in the state after 2035, with their ongonig usage phased out over several years beyond that.

Two-minute warning

“Whether the waiver request was as a result of the [CTA] lawsuit, or just a realization of the law, I can’t say either way,” Matt Schrap, executive director of the Harbor Trucking Association, told FreightWaves. 

The HTA represents the drayage community in the ports of Long Beach and Los Angeles, and rules impacting new drayage vehicles that go into effect Jan. 1 are generally seen as the most impactful of the ACF regulations that will be implemented in the new year.

“But now all of a sudden, it’s the fourth quarter, two-minute warning, and the view is, oh, hey, we actually need a waiver,” Schrap added.

In an email to FreightWaves, a spokeswoman for CARB, when asked about the relatively late date of the filing, said only that “CARB submitted the waiver request after the Office of Administrative Law approved the regulation on September 29.”

The battle over the waiver was being conducted with the full knowledge by both sides that the EPA virtually never denies a California request for a waiver to impose stricter mandates than those found in federal law. There appears to be little expectation that the ACF request will meet a different fate.

In his cover letter to the EPA requesting the waiver, Steven Cliff, CARB’s executive director, told EPA Administrator Michael Regan that “the ACF regulation constitutes the latest development in California’s decades-long history of promulgating increasingly stringent emission standards for mobile sources needed to protect the public health and welfare of Californians by improving air quality and mitigating the harms posed by greenhouse gases.”

But the waiver request throws some uncertainty in the law’s implementation, which will see its first big impact at the state’s ports and their drayage fleets.

Drayage is the first part of the trucking ecosystem with a major impact from the ACF because of the rule that trucks that only ZEVs can be added to the state’s drayage registry after Jan. 1. The database is the Truck Regulation Upload, Compliance, and Reporting System (TRUCRS).

What the data says on the drayage transition

The drayage registry, as of early October, had approximately 218,440 trucks in the registry. That information came from a CARB spokesman; the data cannot be accessed directly. “We expect to see influxes of new registrations, each time we hold (training sessions),” the spokesman said in an October email to FreightWaves. He added that an updated report on the size of the drayage fleet can be provided after the end of the year.

Getting information on what sort of activity is occurring as a result of that mandate is difficult to come by. One piece of data: In July, the first month that the Port of Long Beach reported such data in its monthly truck move analysis, there were 111 ZEVs reported active in the port. In October, the most recent month for which data is available, that number was 160. The July data shows that 0.5% of all drayage truck moves were completed with ZEVs. In October, that percentage rose to 0.86%.

That data in coming months may yield indications whether the change in regulation led to a surge in registrations of diesel-fueled vehicles, trying to get in under the Dec. 31 deadline. 

In that email from October, the CARB spokesman said when the up-to-date data is released, it will include trucks that began drayage service this year. “These could include companies replacing older diesel trucks that are on their last legs with newer diesel trucks, out of necessity,” he said.

The data that is available could be interpreted as signaling a buildup of ICE vehicles getting access to the market before the deadline. 

For example, in the May truck activity report for the Southern California ports, the number of trucks with access to the port of Long Beach or Los Angeles was 21,510. The figure for July was 21,585. In October, the most recent month for which data is available, it was 21,874. 

Data on ZEVs is not available before July. But the July number for ZEVs was 111 and was 160 in October. That is a gain of 49 vehicles. But between July and October, the number of vehicles with access to the ports rose 289, a far greater number than the ZEV growth.

However, those figures are for access to the port and are not necessarily reflective of what is in the state’s drayage registry. 

Schrap said if a vehicle is registered in the statewide system, to maintain that registration, a truck needs to make only one drayage trip per year. The rest of the year, “you can use them as yard ornaments.”

Although the biggest regulation coming down at 12:01 a.m. Jan. 1 is the ZEV requirement for new vehicles, there also is a phase-out period for all ICE trucks under ACF.

There already have been requirements on phasing out trucks with a model year prior to 2010.  All Class 7 and 8 diesel drayage trucks were supposed to be out of the market by Jan. 1 of this year, though the Port of Long Beach data still reports some moves by trucks of that vintage. 

Under the rules of the ACF, a drayage vehicle must be removed from the system under one of two scenarios: it reaches 18 years or 800,000 miles, or it runs 13 years if the 800,000 miles is reached. The truck must be retired under the earlier of those two scenarios in the vehicle’s history.

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