department of natural resources and environmental control

Division of Air and Waste Management

FINAL

Secretary’s Order No.: 2010-A-0039

Date of Issuance: November 9, 2010

Effective Date of the Amendment: December 11, 2010

1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding.

Background and Procedural History

This Order considers the proposed regulatory amendment to 7 DE Admin. Code 1140, Delaware Low Emission Vehicle Program. The primary purpose of this promulgation is to reduce vehicle emissions from new vehicles in Delaware, beginning with model year 2014. Considerable benefits to human health and the environment will be realized under this program in the long term by the adoption of California’s emissions standards, which are more stringent than the current federal standards. The Low Emission Vehicle (“LEV”) Program reduces emissions of ozone precursors, particulates, toxic air pollutants, and greenhouse gases.

The Department’s Division of Air Quality (DAQ) commenced the regulatory development process with Start Action Notice 2009-33. The Department published the proposed regulatory amendment in the October 1, 2010 Delaware Register of Regulation and held a public hearing on October 22, 2010. The Department’s presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer’s Report dated November 5, 2010 (Report). The Report recommends certain findings and the adoption of the proposed Amendment as attached to the Report as Appendix A.

Findings and Discussion

I find that the proposed Amendment is well-supported by the record developed by the Department, and adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendment. Throughout the entire regulatory development process regarding this promulgation, the Department received public comments from the regulated community, as noted in the Report, and considered and responded to all timely and relevant public comments in making its determination.

I find that the Department’s DAQ expert fully developed the record to support adoption of this Amendment. The adoption of the regulation amendment to 7 DE Admin. Code 1140, Delaware Low Emission Vehicle Program, will formally establish the Delaware Low Emission Vehicle Program (DEL LEV). The inclusion of Delaware into California’s Low Emission Vehicle Program (CAL LEV) will allow additional reductions of motor vehicle emissions from new vehicles (less than 7,500 miles) transferred (i.e., sold, delivered, purchased, leased, rented, acquired, received, and/or registered) into Delaware, beginning with model year 2014, as the proposed program is more stringent than the current federal rule.

The amendments to 7 DE Admin. Code 1140 will also provide increased protection for Delaware citizens against a variety of potential adverse health effects linked to long-term exposure to particulate matter (PM), volatile organic compounds (VOCs), nitrogen oxide (NOx), and greenhouse gases (GHGs). This implementation proposes to adopt requirements that are at least as health protective as requirements of the existing Federal Tier 2 standards.

In conclusion, the following findings and conclusions are entered:

1.) The Department has jurisdiction under its statutory authority to issue an Order adopting this proposed Amendment as final;

2.) The Department provided adequate public notice of the proposed Amendment, and provided the public with an adequate opportunity to comment on the proposed Amendment, including at a public hearing;

3.) The Department held a public hearing on October 22, 2010 on the proposed Amendment in order to consider public comments before making any final decision, and fully considered and responded to all timely and relevant comments received from the regulated community concerning this matter;

4) The Department’s Hearing Officer’s Report, including its recommended record and the recommended Amendment as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order;

5.) The recommended Amendment does not reflect any substantive change to either the intent or content of the proposed regulation Amendment as published in the October 1, 2010, Delaware Register of Regulations;

6.) The recommended Amendment should be adopted as final regulation Amendment because Delaware will then be enabled to (1) provide for additional reductions of motor vehicle emissions from new vehicles (less than 7,500 miles) transferred (i.e., sold, delivered, purchased, leased, rented, acquired, received, and/or registered) into Delaware, beginning with model year 2014, as the proposed program is more stringent than the current federal rule; and (2) provide increased protection for Delaware citizens against potential adverse health effects linked to long-term exposure to particulate matter (PM), volatile organic compounds (VOCs), nitrogen oxide (NOx), and greenhouse gases (GHGs). This implementation proposes to adopt requirements that are at least as health protective as requirements of the existing Federal Tier 2 standards. Moreover, the regulation amendment is well supported by documents in the record; and

7.) The Department shall submit this Order approving the final regulation to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate.

Collin P. O’Mara, Secretary

1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation

09/11/1999

The environmental benefits of this regulation will be realized in all counties in the State of Delaware.

09/11/1999

The following terms, when used in this regulation, shall have the following meanings:

“NLEV Program” or “National Low Emission Vehicle Program” means a federally enforceable, voluntary nationwide clean car program designed to reduce smog and other pollution from new motor vehicles and that would achieve emission reductions from new motor vehicles in the Ozone Transport Region equivalent to or greater than would be achieved by the adoption of the CAL-LEV (California-Low Emission Vehicle) Program by all the OTC states.

09/11/1999

3.1 For the duration of Delaware’s participation in NLEV, manufacturers may comply with NLEV or equally stringent mandatory federal standards in lieu of compliance with any program, including the provisions of this subchapter and including any mandates for sales of ZEVs (zero emission vehicles), adopted by the State pursuant to the authority provided in Section 177 of the Clean Air Act (CAA), 42 U.S.C. Section 7401 et seq., applicable to passenger cars, light-duty trucks up through 6,000 pounds GVWR (gross vehicle weight rating), or medium-duty vehicles from 6,001 to 14,000 pounds GVWR if designed to operate on gasoline, as these categories of motor vehicles are defined in the California Code of Regulations, Title 13, Division 3, Chapter 1, Article 1, Section 1900, incorporated herein by reference.

3.2 Delaware’s participation in NLEV extends until the commencement of model year 2006, except as provided in 40 C.F.R. Section 86.1707. If, no later than December 15, 2000, the EPA does not adopt standards at least as stringent as the NLEV standards provided in 40 C.F.R. Part 86, subpart R, that apply to new motor vehicles in model year 2004, 2005 or 2006, the State’s participation in NLEV extends only until the commencement of model year 2004, except as provided in 40 C.F.R. Section 86.1707.

3.3 If a covered manufacturer, as defined at 40 C.F.R. 86.1702, opts out of the NLEV program pursuant to the EPA NLEV regulations at 40 C.F.R. Section 86.1707, the transition from NLEV requirements to any state Clean Air Act Section 177 Program applicable to passenger cars, light-duty trucks up through 6000 pounds GVWR, or medium-duty vehicles from 6001 to 14,000 pounds GVWR if designed to operate on gasoline, as these categories of motor vehicles are defined in the California Code of Regulations, Title 13, Division 3, Chapter 1, Article 1, Section 1900, incorporated herein by reference will proceed in accordance with the EPA NLEV regulations at 40 C.F.R. Section 86.1707.

1140 – Delaware Low Emission Vehicle Program

1.1 The provisions of this regulation establish in Delaware a LEV program, which incorporates the requirements of the California LEV program.

1.2 The LEV program shall apply to all [new] model year 201[34] and subsequent motor vehicles that are passenger cars[, and] light-duty trucks[, and medium-duty vehicles] subject to the California LEV program and delivered for sale in Delaware [on or after January 1, 2013].

2.1 Except as set forth in [2.2 and] 2.3 of this regulation[, on or after January 1, 2013,] no person shall deliver for sale, offer for sale, sell, deliver, purchase, rent, acquire, receive, or register a [new] model year 201[34] or subsequent model-year passenger car[, or] light-duty truck[, or medium-duty vehicle] within Delaware unless the vehicle has been certified by CARB and has received a CARB Executive Order.

2.2 [Prior to January 1, 2014, model year 2013 vehicles that do not meet the requirements of 2.1 of this regulation, but were delivered for sale in Delaware on or before January 1, 2013, and have a certificate of conformity issued pursuant to the Clean Air Act, may be sold, offered for sale, purchased, acquired or received in Delaware.]

2.[42] For the purposes of this regulation, it is presumed that the equitable or legal title to any motor vehicle with an odometer reading of 7,500 miles or more has been transferred to an ultimate purchaser and that the equitable or legal title to any motor vehicle with an odometer reading of fewer than 7,500 miles has not been transferred to an ultimate purchaser.

2.3 The prohibitions contained in 2.1 of this regulation shall not apply to [passenger cars and light-duty trucks vehicles] that are:

2.3.1 Held for daily lease or rental to the general public or engaged in interstate commerce, which are registered and principally operated outside of Delaware;

2.3.2 Test vehicles and emergency vehicles;

2.3.3 Acquired by a resident of Delaware for the purposes of replacing a vehicle registered to such resident, which vehicle was damaged, or became inoperative beyond reasonable repair, or was stolen while out of Delaware; provided that such replacement vehicle is acquired outside of Delaware at the time the previously registered vehicle was either damaged or became inoperative beyond reasonable repair or was stolen;

2.3.4 Transferred by inheritance;

2.3.5 Transferred by court decree;

2.3.6 Issued a certificate of conformity pursuant to the Clean Air Act and originally registered in another state by a resident of that state who subsequently establishes residence in Delaware;

2.3.7 Sold directly from one dealer to another dealer;

2.3.8 Sold for the purpose of being wrecked or dismantled;

2.3.9 Sold exclusively for off-highway use; or

2.3.10 Sold for registration outside of Delaware.

2.3.11 Military tactical vehicles.

The following words and terms, when used in this regulation, shall have the following meanings unless the context clearly indicates otherwise.

“Air contaminant emission control system” means the equipment designed for installation on a motor vehicle or motor vehicle engine for the purpose of reducing the air contaminants emitted from the motor vehicle or motor vehicle engine or a system or engine modifications on a motor vehicle which causes a reduction of air contaminants emitted from the motor vehicle engine, including but not limited to exhaust control systems, fuel evaporative control systems and crankcase ventilating systems.

“Business” means an occupation, profession or trade; a person or partnership or corporation engaged in commerce, manufacturing, or a service; a profit-seeking enterprise or concern.

“California-certified” (vehicle) means a vehicle having a valid Executive Order stating that the vehicle meets all applicable requirements under applicable sections of Title 13, CCR and approved for sale in California by CARB.

“California Air Resources Board or CARB” means the agency or its successor established and empowered to regulate sources of air pollution in the state of California, including motor vehicles, pursuant to Section 39003, California Health & Safety Code, as amended or supplemented.

“California low emission vehicle program” means the low emission vehicle program being implemented in the state of California, pursuant to the provisions of the Clean Air Act and the California Code of Regulations.

“CCR” means the California Code of Regulations.

“Certificate of conformity” means that document issued by California Air Resources Board, or the United States Environmental Protection Agency.

“Clean Air Act or CAA” means the Federal Clean Air Act, 42 U.S.C. §§ 7401 et seq., as amended and supplemented.

“Dealer” means any person actively engaged in the business of offering to sell, soliciting or advertising the sale, buying, transferring, leasing, selling or exchanging new motor vehicles and who has an established place of business.

“Delivered for sale” means vehicles that have received a bill of lading for sale in Delaware and are shipped, or are in the process of being shipped to a dealer in Delaware.

“Department” means the Delaware Department of Natural Resources and Environmental Control.

“Emergency vehicle” means any publicly owned vehicle operated by a peace officer in the performance of their duties, any authorized emergency vehicle used for fighting fires or responding to emergency fire calls and any publicly owned authorized emergency vehicle used by an emergency medical technician or –paramedic or any ambulance used by a private entity under contract with a public agency.

“Emission standards” mean specified limitations on the discharge of air contaminants into the atmosphere.

“Engine family” means the basic classification unit comprised of the engine and drive train configuration selected by a manufacturer and used for the purpose of certification testing.

“Executive Order” means a document issued by CARB certifying that a specified test group or model year vehicle has met all applicable requirements adopted by CARB pursuant to the applicable sections of Title 13, CCR for the control of specified air contaminants from motor vehicles and is thereby certified for sale in California.

“Gross vehicle weight rating or GVWR” means the value specified by the manufacturer as the maximum design loaded weight of a single vehicle.

“Intermediate volume manufacturer” means a manufacturer that has been designated by CARB as an intermediate volume manufacturer as defined at Title 13, CCR, Section 1900.

“Large volume manufacturer” means a manufacturer that has been designated by the CARB as a large volume manufacturer as defined at Title 13, CCR, Section 1900.

“Light-duty truck” means any 2000 and subsequent model year motor vehicle certified to the standards in Title 13, CCR, Section 1961(a)(1), rated at 8,500 pounds gross vehicle weight or less, and any other motor vehicle rated at 6,000 pounds gross vehicle weight or less, which is designed primarily for purposes of transportation of property or is a derivative of such a vehicle, or is available with special features enabling off-street or off-highway operation and use.

“Light-duty truck-1 or LDT-1” means a light-duty truck with a loaded vehicle weight of 3,750 pounds or less.

[“LDT-2 or] Light-duty truck-2 [or LDT-2]” means a light-duty truck with a loaded vehicle weight of greater than 3,750 pounds and a gross vehicle weight of less than or equal to 8,500 pounds and includes medium-duty passenger vehicles when determining compliance with the greenhouse gas emission standards of this regulation.

“Loaded vehicle weight” means the vehicle curb weight plus 300 pounds.

“Mail out” means a widely distributed general correspondence issued by CARB whenever said board needs information from the public, or when it wishes to inform the public of new information.

“Manufacturer” means any small, intermediate or large volume vehicle manufacturer as defined at Title 13, CCR, Section 1900.

“Medium-duty [passenger] vehicle” means medium-duty [passenger] vehicle as defined at Title 13, CCR, Section 1900.

“Military tactical vehicle” means all land combat and transportation vehicles, excluding rail-based, which are designed for or are in use by any of the United States armed forces.

“Model year” means model year as defined at 40 CFR 85.2302 and determined in accordance with the provisions of 40 CFR 85.2301 through 85.2304, as supplemented or amended, and incorporated herein by reference.

“Motor vehicle or vehicle” means every device in, upon, or by which a person or property is or may be transported otherwise than by muscular power, excepting such devices as run only upon rails or tracks and motorized bicycles.

“Motor vehicle engine” means an engine that is used to propel a motor vehicle.

“New motor vehicle engine” means a new engine in a motor vehicle.

“New vehicle” means any vehicle with 7,500 miles or fewer on its odometer.

“Non-methane organic gas or NMOG” means the total mass of oxygenated and non-oxygenated hydrocarbon emissions.

“Passenger car” means any motor vehicle designed primarily for transportation of individuals and having a design capacity of 12 individuals or fewer.

“Person” means an individual, public or private corporation, company, partnership, firm, association, society or joint stock company, municipality, state, interstate body, [the United States], or any Board, commission, employee, agent, officer or political subdivision of a state, an interstate body or the United States.

“Placed in service” means having been sold to an ultimate purchaser and not to a dealer or other distribution chain entity, and having been individually registered for on-road use by the Delaware Division of Motor Vehicles.

“Sale or sell” means the transfer of equitable or legal title to a motor vehicle or motor vehicle engine to the ultimate purchaser.

“Secretary” means the Secretary of the Department.

“State” means the State of Delaware, unless otherwise specified.

“Test group” means a grouping of vehicles as defined by 40 CFR 86.1827-01, as supplemented or amended, and incorporated herein by reference.

“Test vehicle” means an experimental or prototype motor vehicle that appears to have very low emission characteristics, or a used motor vehicle within which an experimental motor vehicle pollution control device is installed, and which has also received a test vehicle or fleet permit from CARB.

“Ultimate purchaser” means, with respect to any new motor vehicle or new motor vehicle engine, the first person whom in good faith purchases a new motor vehicle or new motor vehicle engine for purposes other than resale.

“USEPA” means the United States Environmental Protection Agency.

“Vehicle identification number or VIN” means a unique, 17 digit, alphanumeric code that the vehicle manufacturer assigns to a vehicle.

Each model year and subsequent motor vehicle subject to 2.1 of this regulation shall be California-certified.

5.1 A manufacturer of model year 201[34] or later passenger cars[, or] light-duty trucks[, or medium-duty vehicles] delivered for sale in Delaware [on or after January 1, 2013], shall demonstrate compliance with the NMOG fleet-wide average exhaust emission requirement of Title 13, CCR, Section 1961, which average shall be based on the number of the manufacturer's vehicles subject to 2.1 of this regulation.

5.2 A manufacturer may accrue NMOG credits and debits and use them in accordance with Title 13, CCR, Section 1961(c), except that the formula for accruing credits at Title 13, CCR, Section 1961(c) shall be based upon the number of vehicles the manufacturer produces and delivers for sale in Delaware in accordance with this regulation.

6.1 Each new vehicle model subject to 2.1 of this regulation shall satisfy the motor vehicle emission requirements of Title 13, CCR, Sections: 1960.1, 1961, 1962, 1962.1, 1965, 1968.1, 1968.2, 1968.5, 1976, 1978, 2037, 2038, 2062, 2101, 2111, and 2235. A manufacturer shall demonstrate compliance by presenting to the Department upon request copies of the applicable Executive Order.

6.2 Each manufacturer of a vehicle subject to 2.1 of this regulation shall conduct Inspection Testing and Quality Audit Testing in accordance with Title 13, CCR, Section 2062, and shall provide the test results to the Department upon request. A manufacturer shall demonstrate compliance by presenting to the Department, upon request, copies of the test results and the determination and findings made by CARB.

6.3 Each new vehicle subject to 2.1 of this regulation, prior to being offered for sale in Delaware, shall meet the motor vehicle emission requirements of Title 13, CCR, Section 1961, as determined by compliance testing, conducted by CARB in accordance with Title 13, CCR, Sections 2101 through 2110, 2150, and 2151. A manufacturer shall demonstrate compliance by presenting to the Department, upon request, copies of the test results and the determination and findings made by CARB.

6.4 For the purposes of detection and repair of vehicles subject to this [subchapter regulation] failing to meet the motor vehicle emission requirements of Title 13, CCR, Section 1961the Department may conduct, after consultation with CARB, In-Use Vehicle Enforcement Testing in accordance with the protocol and testing procedures in Title 13, CCR, Section 2140. A manufacturer shall demonstrate compliance by presenting to the Department, upon request, copies of the test results and the determination and findings made by CARB.

7.1 Each manufacturer of a vehicle subject to 2.1 of this regulation shall warrant to the ultimate purchaser and each subsequent purchaser that the vehicle shall comply over its period of warranty coverage with all requirements of Title 13, CCR, Sections 2035 through 2038, 2040, and 2041.

7.2 Each manufacturer of a vehicle subject to 2.1 [of this regulation] shall submit to the Department, upon request, a Failure of Emission-Related Components report as defined at Title 13, CCR, Section 2144.

7.3 For purposes of compliance with 7.2 of this regulation, a manufacturer may submit copies of the Failure of Emission-Related Components report that are submitted to CARB.

8.1 Beginning with the 201[34] model year, each manufacturer of a vehicle subject to 2.1 of this regulation shall submit annually to the Department, no later than March 1 following the close of the model year, a report documenting total deliveries for sale in Delaware of vehicles in each test group during that model year. [For the 2013 model year, the report shall separately show deliveries for sale prior to January 1, 2013 and on and after January 1, 2013.]

8.2 Beginning with the 201[34] model year, each manufacturer of a vehicle subject to 2.1 [of this regulation] shall submit annually to the Department, by no later than March 1 following the close of the model year, a report, prepared according to Title 13, CCR, Section 1961, calculating the NMOG fleet-wide average exhaust emission for the model year just ended for vehicles delivered for sale in Delaware. [For the 2013 model year, the report shall separately show deliveries for sale prior to January 1, 2013 and on and after January 1, 2013.]

8.3 Beginning with the 201[34] model year, each manufacturer of a vehicle exempted under 2.3.7 of this regulation must keep records on all inter or intra-dealer trades of new 201[34] or subsequent model-year [passenger car or light-duty truck vehicles] that have not been certified by CARB and therefore have not received a CARB Executive Order, and these records shall be made readily available to the Department upon request.

9.1 Records to support any application, notice, report or amendment submitted to the Department under this [subchapter regulation] shall be maintained for a period of no less than five years after submitting the information to the Department, and shall be made readily available to the Department upon request.

9.2 Failure to comply with any of the obligations or requirements of this [subchapter regulation] shall subject the violator to an enforcement action pursuant to the provisions of 7 Del. C. Ch 60.

9.3 Any order or enforcement action taken by CARB to correct noncompliance with any section of Title 13, CCR, which action results in the recall of any vehicle pursuant to Title 13, CCR, sections 2109 through 2135, shall be applicable in Delaware, except where the manufacturer demonstrates to the Department’s satisfaction within 30 days of issuance of the CARB action that the action is not applicable to vehicles subject to this regulation.

9.4 Any emission-related recall campaign, voluntary or otherwise, initiated by any manufacturer pursuant to Title 13, CCR, Sections 2113 through 2121, shall extend to all similar vehicles subject to 2.1 of this regulation, except where the manufacturer demonstrates to the Department’s satisfaction within 30 days of CARB approval of the campaign that the campaign is not applicable to vehicles subject to 2.1 of this regulation.

10.1 Unless specifically excluded by this [subchapter regulation], when a provision of the CCR is incorporated by reference, all notes, comments, appendices, diagrams, tables, forms, figures, and publications are also incorporated by reference.

10.2 Prospective incorporation by reference means the ongoing process, whereby all provisions of regulations incorporated into this [subchapter regulation] from the CCR, as set forth in Table 40-1, are continually automatically updated in order to maintain consistency with the most current CCR. Thus, any supplements, amendments, and any other changes including, without limitation, repeals or stays that affect the meaning or operational status of a California rule, brought about by either judicial or administrative action and adopted or otherwise noticed by the state of California, shall be paralleled by a similar change to the Delaware regulation so that the Delaware regulation will have the same meaning and status as its California counterpart.

10.3 Provisions of the CCR that are excluded from incorporation by reference in [these rules this regulation] are excluded in their entirety, unless otherwise specified. If there is a cross-reference to a California citation that was not specifically incorporated, the cross-referenced citation is not incorporated by virtue of the cross-reference. Provisions that have been excluded from incorporation by reference are also excluded from the process of prospective incorporation by reference.

10.4 Nothing in these provisions incorporated by reference from the CCR shall affect the Department's authority to enforce statutes, rules, permits or orders administered or issued by the Secretary.

10.5 The following documents and sources are incorporated by reference within this regulation:

Table 40-1

California Code of Regulations (CCR)

Title 13

Provisions Incorporated by Reference

Any of the documents incorporated by reference may be obtained either from the Department or from the State of California Office of Administrative Law, 300 Capitol Mall, Suite 1250 Sacramento, California 95814-4339 or at the California Office of Administrative Law website at: http://www.oal.ca.gov/

Each section of this subchapter is severable. In the event that any section, subsection or division is held invalid in a court of law, the remainder of this subchapter shall continue in full force and effect.