California State Nonroad Engine Pollution Control Standards; Large Spark-Ignition (LSI) Engines; New Emission Standards and In-Use Fleet Requirements; Notice of Decision, 20388-20392 [2012-8112]

Download as PDF 20388 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices and transmit or otherwise disclose the information. Respondents/Affected Entities: Owners or operators of combustion units burning hazardous waste, States. Estimated Number of Respondents: 208. Frequency of Response: Initially, occasionally, semiannually, and annually. Estimated Total Annual Hour Burden: 142,447 Hours. Estimated Total Annual Cost: $19,665,792, includes $100,059 for annualized capital cost and $3,951,790 for operation and maintenance (O&M) costs. Changes in the Estimates: There is a decrease of 57,450 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This burden decrease is due to a decrease in the number of estimated hazardous waste combustors affected by this ICR since the last renewal. John Moses, Director, Collection Strategies Division. [FR Doc. 2012–8055 Filed 4–3–12; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [FRL–9655–9] California State Nonroad Engine Pollution Control Standards; Large Spark-Ignition (LSI) Engines; New Emission Standards and In-Use Fleet Requirements; Notice of Decision Environmental Protection Agency (EPA). ACTION: Notice of Decision. AGENCY: EPA is granting the California Air Resources Board’s (CARB’s) request for authorization of California’s emission standards and certification and test procedures for large spark-ignition nonroad engines and in-use fleet average emission requirements for largeand medium-sized fleets. California’s LSI in-use fleet requirements are applicable to fleets comprised of four or more pieces of equipment powered by LSI engines, including forklifts, industrial tow tractors, sweepers/ scrubbers, and airport ground support equipment. DATES: Petitions for review must be filed by June 4, 2012. ADDRESSES: EPA has established a docket for this action under Docket ID EPA–HQ–OAR–2011–0830. All documents relied upon in making this decision, including those submitted to EPA by CARB, are contained in the emcdonald on DSK29S0YB1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 15:28 Apr 03, 2012 Jkt 226001 public docket. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air and Radiation Docket in the EPA Headquarters Library, EPA West Building, Room 3334, located at 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open to the public on all federal government working days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday through Friday, excluding holidays. The telephone number for the Reading Room is (202) 566–1744. The Air and Radiation Docket and Information Center’s Web site is https://www.epa.gov/ oar/docket.html. The electronic mail (email) address for the Air and Radiation Docket is: a-and-r-Docket@ epa.gov, the telephone number is (202) 566–1742, and the fax number is (202) 566–9744. An electronic version of the public docket is available through the federal government’s electronic public docket and comment system. You may access EPA dockets at https://www. regulations.gov. After opening the www. regulations.gov Web site, enter EPA– HQ–OAR–2011–0830 in the ‘‘Enter Keyword or ID’’ fill-in box to view documents in the record. Although a part of the official docket, the public docket does not include Confidential Business Information (‘‘CBI’’) or other information whose disclosure is restricted by statute. EPA’s Office of Transportation and Air Quality (‘‘OTAQ’’) maintains a Web page that contains general information on its review of California waiver requests. Included on that page are links to prior waiver Federal Register notices, some of which are cited in today’s notice; the page can be accessed at https://www.epa.gov/otaq/cafr.htm. FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: (202) 343–9949. Fax: (202) 343–2800. Email: knapp.kristien@epa.gov. SUPPLEMENTARY INFORMATION: with LSI engines.1 The LSI regulations are designed to reduce emissions of hydrocarbons (HC) and oxides of nitrogen (NOX) from forklifts and other industrial equipment powered by LSI engines. CARB approved the LSI regulations at a public hearing on May 25, 2006 (by Resolution 06–11).2 After making modifications to the regulation available on December 1, 2006, and February 1, 2007 for supplemental public comment, CARB’s Executive Officer formally adopted the LSI regulations in Executive Order R–07– 001 on March 2, 2007.3 The LSI regulations are codified at title 13, California Code of Regulations, sections 2775 through 2775.2.4 Underpinning CARB’s LSI regulations is a set of emission standards for new off-road LSI engines beginning in 2007. The emission standards include: adoption of EPA’s 2007 and later model year emission standards for the same engines, more stringent standards for the 2010 and later model years, optional certification standards, and more rigorous certification and test procedures. The LSI regulations also apply to operators of large- and medium-sized fleets of forklifts, sweepers/scrubbers, airport ground support equipment (GSE), and industrial tow tractors with engine displacements of greater than one liter. These fleets must meet a fleet average in-use emission standard. A. California’s LSI Regulations B. Clean Air Act Nonroad Engine and Vehicle Authorizations Section 209(e)(1) of the Act permanently preempts any State, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for new nonroad engines or vehicles. States are also preempted from adopting and enforcing standards and other requirements related to the control of emissions from non-new nonroad engines or vehicles. Section 209(e)(2) requires the Administrator, after notice and opportunity for public hearing, to authorize California to enforce such standards and other requirements, unless EPA makes one of three findings. In addition, other states with attainment plans may adopt and enforce such regulations if the standards, and By letter dated December 10, 2008, CARB submitted to EPA its request pursuant to section 209(e) of the Clean Air Act (‘‘CAA’’ or ‘‘the Act’’), regarding its regulation of emissions from new offroad large spark-ignition (LSI) engines and its in-use fleet requirements for forklifts and other industrial equipment 1 California Air Resources Board (‘‘CARB’’), ‘‘Request for Authorization,’’ December 10, 2008, EPA–HQ–OAR–2011–0830–0001. 2 CARB Enclosure 1, ‘‘Resolution 06–11,’’ EPA– HQ–OAR–2011–0830–0002. 3 CARB Enclosure 2, ‘‘Executive Order R–07– 001,’’ EPA–HQ–OAR–2011–0830–0003. 4 CARB Enclosure 3, ‘‘Final Regulation Order,’’ EPA–HQ–OAR–2011–0830–0004. I. Background PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\04APN1.SGM 04APN1 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices implementation and enforcement procedures, are identical to California’s standards. On July 20, 1994, EPA promulgated a rule that sets forth, among other things, regulations providing the criteria, as found in section 209(e)(2), which EPA must consider before granting any California authorization request for new nonroad engine or vehicle emission standards.5 EPA later revised these regulations in 1997.6 As stated in the preamble to the 1994 rule, EPA has historically interpreted the section 209(e)(2)(iii) ‘‘consistency’’ inquiry to require, at minimum, that California standards and enforcement procedures be consistent with 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).7 In order to be consistent with 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 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 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 section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if she finds that California ‘‘standards and accompanying enforcement procedures are not consistent with section 202(a)’’ of the Act. Previous 5 59 FR 36969 (July 20, 1994). 62 FR 67733 (December 30, 1997). The applicable regulations, now in 40 CFR part 1074, subpart B, § 1074.105, provide: (a) The Administrator will grant the authorization if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as otherwise applicable federal standards. (b) The authorization will not be granted if the Administrator finds that any of the following are true: (1) California’s determination is arbitrary and capricious. (2) California does not need such standards to meet compelling and extraordinary conditions. (3) The California standards and accompanying enforcement procedures are not consistent with section 209 of the Act. (c) In considering any request from California to authorize the state to adopt or enforce standards or other requirements relating to the control of emissions from new nonroad spark-ignition engines smaller than 50 horsepower, the Administrator will give appropriate consideration to safety factors (including the potential increased risk of burn or fire) associated with compliance with the California standard. 7 See 59 FR 36969 (July 20, 1994). emcdonald on DSK29S0YB1PROD with NOTICES 6 See VerDate Mar<15>2010 15:28 Apr 03, 2012 Jkt 226001 decisions granting waivers and authorizations have noted that state standards and enforcement procedures are inconsistent with 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. C. Burden of Proof In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’), the U.S. Court of Appeals stated that the Administrator’s role in a 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.8 The court in MEMA I considered the standards of proof under section 209 for the two findings related to granting a waiver for an ‘‘accompanying enforcement procedure’’ (as opposed to the standards themselves): (1) Protectiveness in the aggregate and (2) consistency with section 202(a) findings. 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.’’ 9 The court upheld the Administrator’s position that, to deny a waiver, there must be ‘‘clear and compelling evidence’’ to show that proposed procedures undermine the protectiveness of California’s standards.10 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.11 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 standards of proof under 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—Congress intended that the standards of EPA review of the State decision to be a narrow one.’’ 12 Opponents of the waiver bear the burden of showing that the criteria for a denial of California’s waiver request have been met. As found in MEMA I, this obligation rests firmly with opponents of the waiver in a section 209 proceeding: [t]he language of the statute and its legislative history indicate that California’s regulations, and California’s determinations that they must 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 request bear the burden of persuading the Administrator that the waiver request should be denied.13 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.’ ’’ 14 Therefore, the Administrator’s burden is to act ‘‘reasonably.’’ 15 D. EPA’s Administrative Process in Consideration of California’s LSI Regulations Upon review of CARB’s request, EPA offered an opportunity for a public hearing, and requested written comment on issues relevant to a full section 209(e) authorization analysis, by publication of a Federal Register notice on October 31, 2011.16 Specifically, we requested comment on: (a) Whether CARB’s determination that its 12 See, 8 MEMA I, 627 F.2d at 1122. 9 Id. 10 Id. 11 Id. PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 20389 e.g., 40 FR 21102–103 (May 28, 1975). I, 627 F.2d at 1121. 14 Id. at 1126. 15 Id. 16 76 FR 67184 (October 31, 2011). 13 MEMA E:\FR\FM\04APN1.SGM 04APN1 20390 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices 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 section 209 of the Act. In response to EPA’s October 31, 2011 Federal Register notice, EPA received one public comment, from Airlines for America (‘‘A4A’’). A4A comments that California’s LSI regulations as applicable to airport ground support equipment is preempted by the Federal Aviation Act and the Airline Deregulation Act. II. Discussion A. California’s Protectiveness Determination Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an authorization if the agency finds that California was arbitrary and capricious in its determination that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. CARB’s Board made a protectiveness determination in Resolution 06–11, finding that California’s LSI regulations will not cause the California emission standards, in the aggregate, to be less protective of public health and welfare than applicable federal standards.17 CARB presents that California’s LSI program is at least as stringent as the federal LSI program ‘‘because for 2010 and later model-year LSI engines, California’s standard for HC+NOX at 0.8 g/kW-hr is more stringent than applicable federal standard at 2.0 g/kWhr and California’s other LSI engine standards are equivalent to federal standards for these model years.’’ 18 CARB contends that its protectiveness determination, based on the stringency of its program as compared to the federal program, ‘‘clearly is not arbitrary and capricious.’’ 19 emcdonald on DSK29S0YB1PROD with NOTICES 17 ‘‘BE IT FURTHER RESOLVED that the Board hereby determines, pursuant to section 209(e)(2) of the federal Clean Air Act that the emission standards and other requirements related to the control of emissions adopted as part of these regulations are, in the aggregate, at least as protective of public health and welfare as applicable federal standards, that California needs the adopted standards to meet compelling and extraordinary conditions, and that the adopted standards and accompanying enforcement procedures are consistent with the provisions in section 209.’’ CARB, Resolution 06–11, EPA–HQ– OAR–2011–0830–0003. 18 CARB, Request for Authorization at 19. 19 Id. VerDate Mar<15>2010 15:28 Apr 03, 2012 Jkt 226001 EPA did not receive any comments challenging California’s protectiveness determination. Therefore, based on the record before us, EPA finds that opponents of the authorization have not shown that California was arbitrary and capricious in its determination that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. B. Need for California Standards To Meet Compelling and Extraordinary Conditions Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an authorization if the agency finds that California ‘‘does not need such California standards to meet compelling and extraordinary conditions * * *.’’ This criterion restricts EPA’s inquiry to whether California needs its own mobile source pollution program to meet compelling and extraordinary conditions, and not whether any given standards are necessary to meet such conditions.20 As discussed above, for over forty years CARB has repeatedly demonstrated the need for its mobile source emissions program to address compelling and extraordinary conditions in California. In its Resolution 06–11, CARB affirmed its longstanding position that California continues to need its own motor vehicle and engine program to meet its serious air pollution problems. Likewise, EPA has consistently recognized that California continues to have the same ‘‘geographical and climatic conditions that, when combined with the large numbers and high concentrations of automobiles, create serious pollution problems.’’ 21 Furthermore, no commenter has presented any argument or evidence to suggest that California no longer needs a separate mobile source emissions program to address compelling and extraordinary conditions in California. Therefore, EPA has determined that we cannot deny California an authorization for its LSI regulations under section 209(e)(2)(ii). C. Consistency With Section 209 of the Clean Air Act Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant an authorization if California’s standards and enforcement procedures are not consistent with section 209. As described above, EPA has historically evaluated this criterion for consistency 20 See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889–18890 (May 3, 1984). 21 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 (June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 (September 8, 2008). PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 with sections 209(a), 209(e)(1), and 209(b)(1)(C). 1. Consistency With Section 209(a) To be consistent with section 209(a) of the Clean Air Act, California’s LSI regulations must not apply to new motor vehicles or new motor vehicle engines. California’s LSI regulations expressly apply only to off-road vehicles and do not apply to engines used in motor vehicles as defined by section 216(2) of the Clean Air Act.22 No commenter presented otherwise. Therefore, EPA cannot deny California’s request on the basis that California’s LSI regulations are not consistent with section 209(a). 2. Consistency With Section 209(e)(1) To be consistent with section 209(e)(1) of the Clean Air Act, California’s LSI regulations must not affect new farming or construction vehicles or engines that are below 175 horsepower, or new locomotives or their engines. CARB presents that the Board ‘‘ensured consistency with section 209(e)(1) by specifically excluding new off-road engines under 175 horsepower primarily used in farm and construction vehicles and equipment from the definition of off-road LSI engines.’’ 23 No commenter presented otherwise. Therefore, EPA cannot deny California’s request on the basis that California’s LSI regulations are not consistent with section 209(e)(1). 3. Consistency With Section 209(b)(1)(C) The requirement that California’s standards be consistent with section 209(b)(1)(C) of the Clean Air Act effectively requires consistency with section 202(a) of the Act. California standards are inconsistent with section 202(a) of the Act if there is inadequate lead-time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that timeframe. California’s accompanying enforcement procedures would also be inconsistent with section 202(a) if federal and California test procedures conflicted. The scope of EPA’s review of whether California’s action is consistent with section 202(a) is narrow. The determination is limited to whether those opposed to the authorization or waiver have met their burden of establishing that California’s standards are technologically infeasible, or that California’s test procedures 22 CARB, Request for Authorization at 20. 23 Id. E:\FR\FM\04APN1.SGM 04APN1 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices impose requirements inconsistent with the federal test procedures.24 emcdonald on DSK29S0YB1PROD with NOTICES a. Technological Feasibility Congress has stated that the consistency requirement of section 202(a) relates to technological feasibility.25 Section 202(a)(2) states, in part, that any regulation promulgated under its authority ‘‘shall 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.’’ Section 202(a) thus requires the Administrator to first determine whether adequate technology already exists; or if it does not, whether there is adequate time to develop and apply the technology before the standards go into effect. The latter scenario also requires the Administrator to decide whether the cost of developing and applying the technology within that time is feasible. Previous EPA waivers are in accord with this position.26 For example, a previous EPA waiver decision considered California’s standards and enforcement procedures to be consistent with section 202(a) because adequate technology existed as well as adequate lead-time to implement that technology.27 Subsequently, Congress has stated that, generally, EPA’s construction of the waiver provision has been consistent with congressional intent.28 CARB presents that the technology required to comply with its LSI regulations is currently available, and that it has provided sufficient lead-time, giving consideration to cost of compliance.29 CARB points to EPA’s own analysis in the federal rule for these same engines, but also separately concluded that fleet owners will be able to absorb or pass compliance costs to their customers. CARB’s LSI fleet requirements progressively increase in stringency from year-to-year, and allow a variety of compliance options, including combinations of retrofits that have already been verified, loweremission purchases, and zero emission purchases. Capital costs of these options range from $30 to $5,000, and may be exceeded by resultant lowered fuel use and lessened maintenance. CARB also 24 MEMA 25 H.R. I, 627, F.2d at 1126. Rep. No. 95–294, 95th Cong., 1st Sess. 301 (1977). 26 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976). 27 41 FR 44209 (October 7, 1976). 28 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 (1977). 29 CARB, Request for Authorization at 24–28. VerDate Mar<15>2010 15:28 Apr 03, 2012 Jkt 226001 points out that fleet requirements apply selectively, provide several exemptions, and that compliance extensions may be granted. EPA did not receive any comments suggesting that CARB’s standards and test procedures are technologically infeasible. Consequently, based on the record, EPA cannot deny California’s authorization based on technological infeasibility. b. Consistency of Certification Procedures California’s standards and accompanying enforcement procedures would also be inconsistent with section 202(a) if the California test procedures were to impose certification requirements inconsistent with the federal certification requirements. Such inconsistency means that manufacturers would be unable to meet both the California and federal testing requirements using the same test vehicle or engine.30 CARB presents that the LSI fleet requirements raise no issue regarding test procedure consistency because there are no analogous federal test procedures for LSI retrofit technologies.31 CARB also points out that its retrofit verification program is a voluntary program available to retrofit device manufacturers, and not directly required of fleet owners. EPA received no comments suggesting that CARB’s LSI regulations pose any test procedure consistency problem. Therefore, based on the record, EPA cannot find that CARB’s testing procedures are inconsistent with section 202(a). Consequently, EPA cannot deny CARB’s request based on this criterion. D. Other Issues Airlines for America (‘‘A4A’’) has provided comments opposing EPA’s grant of authorization for California’s LSI regulations. The reasons A4A provides in its comments are outside the scope of EPA’s scope of review of California authorization requests under section 209(e)(2). A4A claims that California’s LSI rules are preempted by the Federal Aviation Act and the Airline Deregulation Act. As EPA has stated on numerous occasions, EPA’s review of California regulations under section 209 is not a broad review of the reasonableness of the regulations or its compatibility with all other laws. Sections 209(b) and 209(e) of the Clean Air Act limit our authority to deny California requests for waivers and authorizations to the three criteria listed therein. As a result, EPA has 30 See, e.g., 43 FR 32182 (July 25, 1978). Request for Authorization at 28. 31 CARB, PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 20391 consistently refrained from denying California’s requests for waivers and authorizations based on any other criteria.32 In instances where the U.S. Court of Appeals has reviewed EPA decisions declining to deny waiver requests based on criteria not found in section 209(b), the Court has upheld and agreed with EPA’s determination.33 A4A’s comment raises issues of federal preemption that are not included within the criteria listed under sections 209(b) and 209(e).34 Therefore, in considering whether to grant authorization for California’s LSI regulations under section 209(e), EPA cannot deny California’s request for authorization based on the issues raised by A4A. E. Authorization Determination for California’s LSI Regulations After a review of the information submitted by CARB and A4A, EPA finds that those opposing California’s request have not met the burden of demonstrating that authorization for California’s LSI regulations should be denied based on any of the statutory criteria of section 209(e)(2). For this reason, EPA finds that an authorization for California’s LSI regulations should be granted. III. Decision The Administrator has delegated the authority to grant California section 209(e) authorizations to the Assistant Administrator for Air and Radiation. After evaluating California’s LSI regulations, CARB’s submissions, and the public comments from A4A, EPA is granting an authorization to California for its LSI regulations. My decision will affect not only persons in California, but also entities outside the State who must comply with California’s requirements. For this reason, I determine and find that this is a final action of national applicability for purposes of section 307(b)(1) of the Act. Pursuant to section 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by June 4, 2012. Judicial review of this final action may not be obtained in subsequent enforcement proceedings, pursuant to section 307(b)(2) of the Act. 32 See, e.g., 74 FR 32744, 32783 (July 8, 2009). Motor and Equipment Manufacturers Ass’n v. Nichols, 142 F.3d 449, 462–63, 466–67 (D.C. Cir. 1998), Motor and Equipment Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1111, 1114–20 (D.C. Cir. 1979). 34 A4A may raise these issues in a direct challenge to California’s regulations in other forums, but these issues are not relevant to EPA’s limited review under section 209. 33 See E:\FR\FM\04APN1.SGM 04APN1 20392 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices IV. 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. Further, the Congressional Review Act, 5 U.S.C. 801, et seq., 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). Dated: March 29, 2012. Gina McCarthy, Assistant Administrator, Office of Air and Radiation. [FR Doc. 2012–8112 Filed 4–3–12; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [EPA–HQ–OPP–2012–0230; FRL–9343–7] FIFRA Scientific Advisory Panel; Notice of Public Meeting Environmental Protection Agency (EPA). ACTION: Notice. AGENCY: There will be a 4-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review Problem Formulation for the Reassessment of Ecological Risks from the Use of Atrazine. DATES: The meeting will be held on June 12–14, 2012, from 9 a.m. to approximately 5:30 p.m. and on June 15, 2012, from 9 a.m. to approximately 12:30 p.m. Comments. The Agency encourages that written comments be submitted by May 29, 2012, and requests for oral comments be submitted by June 5, 2012. However, written comments and requests to make oral comments may be submitted until the date of the meeting, but anyone submitting written comments after May 29, 2012, should contact the Designated Federal Official (DFO) listed under FOR FURTHER INFORMATION CONTACT. For additional instructions, see Unit I.C. of the SUPPLEMENTARY INFORMATION. emcdonald on DSK29S0YB1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 15:28 Apr 03, 2012 Jkt 226001 Nominations. Nominations of candidates to serve as ad hoc members of FIFRA SAP for this meeting should be provided on or before April 18, 2012. Webcast. This meeting may be webcast. Please refer to the FIFRA SAP’s Web site, https://www.epa.gov/scipoly/ sap for information on how to access the webcast. Please note that the webcast is a supplementary public process provided only for convenience. If difficulties arise resulting in webcasting outages, the meeting will continue as planned. Special accommodations. For information on access or services for individuals with disabilities, and to request accommodation of a disability, please contact the DFO listed under FOR FURTHER INFORMATION CONTACT at least 10 days prior to the meeting to give EPA as much time as possible to process your request. ADDRESSES: The meeting will be held at the Environmental Protection Agency, Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202. Comments. Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2012–0230, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the on-line instructions for submitting comments. • Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001. • Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S–4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility’s normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305–5805. Instructions: Direct your comments to docket ID number EPA–HQ–OPP–2012– 0230. If your comments contain any information that you consider to be CBI or otherwise protected, please contact the DFO listed under FOR FURTHER INFORMATION CONTACT to obtain special instructions before submitting your comments. EPA’s policy is that all comments received will be included in the docket without change and may be made available on-line at https:// www.regulations.gov, including any personal information provided, unless the comment includes information PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or email. The regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the docket index available at https://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at https:// www.regulations.gov, or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S– 4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is (703) 305–5805. Nominations, requests to present oral comments, and requests for special accommodations. Submit nominations to serve as ad hoc members of FIFRA SAP, requests for special seating accommodations, or requests to present oral comments to the DFO listed under FOR FURTHER INFORMATION CONTACT. FOR FURTHER INFORMATION CONTACT: Sharlene R. Matten, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (202) 564–0130; fax number: (202) 564– E:\FR\FM\04APN1.SGM 04APN1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Notices]
[Pages 20388-20392]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8112]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9655-9]

California State Nonroad Engine Pollution Control Standards;
Large Spark-Ignition (LSI) Engines; New Emission Standards and In-Use
Fleet Requirements; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA is granting the California Air Resources Board's (CARB's)
request for authorization of California's emission standards and
certification and test procedures for large spark-ignition nonroad
engines and in-use fleet average emission requirements for large- and
medium-sized fleets. California's LSI in-use fleet requirements are
applicable to fleets comprised of four or more pieces of equipment
powered by LSI engines, including forklifts, industrial tow tractors,
sweepers/scrubbers, and airport ground support equipment.

DATES: Petitions for review must be filed by June 4, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2011-0830. All documents relied upon in making this
decision, including those submitted to EPA by CARB, are contained in
the public docket. Publicly available docket materials are available
either electronically through www.regulations.gov or in hard copy at
the Air and Radiation Docket in the EPA Headquarters Library, EPA West
Building, Room 3334, located at 1301 Constitution Avenue NW.,
Washington, DC. The Public Reading Room is open to the public on all
federal government working days from 8:30 a.m. to 4:30 p.m.; generally,
it is open Monday through Friday, excluding holidays. The telephone
number for the Reading Room is (202) 566-1744. The Air and Radiation
Docket and Information Center's Web site is https://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and
Radiation Docket is: a-and-r-Docket@epa.gov, the telephone number is
(202) 566-1742, and the fax number is (202) 566-9744. An electronic
version of the public docket is available through the federal
government's electronic public docket and comment system. You may
access EPA dockets at https://www.regulations.gov. After opening the
www.regulations.gov Web site, enter EPA-HQ-OAR-2011-0830 in the ``Enter
Keyword or ID'' fill-in box to view documents in the record. Although a
part of the official docket, the public docket does not include
Confidential Business Information (``CBI'') or other information whose
disclosure is restricted by statute.
EPA's Office of Transportation and Air Quality (``OTAQ'') maintains
a Web page that contains general information on its review of
California waiver requests. Included on that page are links to prior
waiver Federal Register notices, some of which are cited in today's
notice; the page can be accessed at https://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor,
Compliance Division, Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW.,
Washington, DC 20460. Telephone: (202) 343-9949. Fax: (202) 343-2800.
Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. California's LSI Regulations

By letter dated December 10, 2008, CARB submitted to EPA its
request pursuant to section 209(e) of the Clean Air Act (``CAA'' or
``the Act''), regarding its regulation of emissions from new off-road
large spark-ignition (LSI) engines and its in-use fleet requirements
for forklifts and other industrial equipment with LSI engines.\1\ The
LSI regulations are designed to reduce emissions of hydrocarbons (HC)
and oxides of nitrogen (NOX) from forklifts and other
industrial equipment powered by LSI engines. CARB approved the LSI
regulations at a public hearing on May 25, 2006 (by Resolution 06-
11).\2\ After making modifications to the regulation available on
December 1, 2006, and February 1, 2007 for supplemental public comment,
CARB's Executive Officer formally adopted the LSI regulations in
Executive Order R-07-001 on March 2, 2007.\3\ The LSI regulations are
codified at title 13, California Code of Regulations, sections 2775
through 2775.2.\4\
---------------------------------------------------------------------------

\1\ California Air Resources Board (``CARB''), ``Request for
Authorization,'' December 10, 2008, EPA-HQ-OAR-2011-0830-0001.
\2\ CARB Enclosure 1, ``Resolution 06-11,'' EPA-HQ-OAR-2011-
0830-0002.
\3\ CARB Enclosure 2, ``Executive Order R-07-001,'' EPA-HQ-OAR-
2011-0830-0003.
\4\ CARB Enclosure 3, ``Final Regulation Order,'' EPA-HQ-OAR-
2011-0830-0004.
---------------------------------------------------------------------------

Underpinning CARB's LSI regulations is a set of emission standards
for new off-road LSI engines beginning in 2007. The emission standards
include: adoption of EPA's 2007 and later model year emission standards
for the same engines, more stringent standards for the 2010 and later
model years, optional certification standards, and more rigorous
certification and test procedures. The LSI regulations also apply to
operators of large- and medium-sized fleets of forklifts, sweepers/
scrubbers, airport ground support equipment (GSE), and industrial tow
tractors with engine displacements of greater than one liter. These
fleets must meet a fleet average in-use emission standard.

B. Clean Air Act Nonroad Engine and Vehicle Authorizations

Section 209(e)(1) of the Act permanently preempts any State, or
political subdivision thereof, from adopting or attempting to enforce
any standard or other requirement relating to the control of emissions
for new nonroad engines or vehicles. States are also preempted from
adopting and enforcing standards and other requirements related to the
control of emissions from non-new nonroad engines or vehicles. Section
209(e)(2) requires the Administrator, after notice and opportunity for
public hearing, to authorize California to enforce such standards and
other requirements, unless EPA makes one of three findings. In
addition, other states with attainment plans may adopt and enforce such
regulations if the standards, and

[[Page 20389]]

implementation and enforcement procedures, are identical to
California's standards. On July 20, 1994, EPA promulgated a rule that
sets forth, among other things, regulations providing the criteria, as
found in section 209(e)(2), which EPA must consider before granting any
California authorization request for new nonroad engine or vehicle
emission standards.\5\ EPA later revised these regulations in 1997.\6\
As stated in the preamble to the 1994 rule, EPA has historically
interpreted the section 209(e)(2)(iii) ``consistency'' inquiry to
require, at minimum, that California standards and enforcement
procedures be consistent with 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).\7\
---------------------------------------------------------------------------

\5\ 59 FR 36969 (July 20, 1994).
\6\ See 62 FR 67733 (December 30, 1997). The applicable
regulations, now in 40 CFR part 1074, subpart B, Sec. 1074.105,
provide:
(a) The Administrator will grant the authorization if California
determines that its standards will be, in the aggregate, at least as
protective of public health and welfare as otherwise applicable
federal standards.
(b) The authorization will not be granted if the Administrator
finds that any of the following are true:
(1) California's determination is arbitrary and capricious.
(2) California does not need such standards to meet compelling
and extraordinary conditions.
(3) The California standards and accompanying enforcement
procedures are not consistent with section 209 of the Act.
(c) In considering any request from California to authorize the
state to adopt or enforce standards or other requirements relating
to the control of emissions from new nonroad spark-ignition engines
smaller than 50 horsepower, the Administrator will give appropriate
consideration to safety factors (including the potential increased
risk of burn or fire) associated with compliance with the California
standard.
\7\ See 59 FR 36969 (July 20, 1994).
---------------------------------------------------------------------------

In order to be consistent with 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 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 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 section 209(b)(1)(C), the
Administrator shall not grant California a motor vehicle waiver if she
finds that California ``standards and accompanying enforcement
procedures are not consistent with section 202(a)'' of the Act.
Previous decisions granting waivers and authorizations have noted that
state standards and enforcement procedures are inconsistent with
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.

C. Burden of Proof

In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir.
1979) (``MEMA I''), the U.S. Court of Appeals stated that the
Administrator's role in a 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.\8\
---------------------------------------------------------------------------

\8\ MEMA I, 627 F.2d at 1122.

The court in MEMA I considered the standards of proof under section 209
for the two findings related to granting a waiver for an ``accompanying
enforcement procedure'' (as opposed to the standards themselves): (1)
Protectiveness in the aggregate and (2) consistency with section 202(a)
findings. 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.'' \9\
---------------------------------------------------------------------------

\9\ Id.
---------------------------------------------------------------------------

The court upheld the Administrator's position that, to deny a
waiver, there must be ``clear and compelling evidence'' to show that
proposed procedures undermine the protectiveness of California's
standards.\10\ 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.\11\
---------------------------------------------------------------------------

\10\ Id.
\11\ Id.
---------------------------------------------------------------------------

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 standards of proof
under 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--Congress intended that the standards of EPA
review of the State decision to be a narrow one.'' \12\
---------------------------------------------------------------------------

\12\ See, e.g., 40 FR 21102-103 (May 28, 1975).
---------------------------------------------------------------------------

Opponents of the waiver bear the burden of showing that the
criteria for a denial of California's waiver request have been met. As
found in MEMA I, this obligation rests firmly with opponents of the
waiver in a section 209 proceeding:

[t]he language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they must 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 request bear the
burden of persuading the Administrator that the waiver request
should be denied.\13\
---------------------------------------------------------------------------

\13\ MEMA I, 627 F.2d at 1121.

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.' '' \14\ Therefore, the
Administrator's burden is to act ``reasonably.'' \15\
---------------------------------------------------------------------------

\14\ Id. at 1126.
\15\ Id.
---------------------------------------------------------------------------

D. EPA's Administrative Process in Consideration of California's LSI
Regulations

Upon review of CARB's request, EPA offered an opportunity for a
public hearing, and requested written comment on issues relevant to a
full section 209(e) authorization analysis, by publication of a Federal
Register notice on October 31, 2011.\16\ Specifically, we requested
comment on: (a) Whether CARB's determination that its

[[Page 20390]]

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
section 209 of the Act.
---------------------------------------------------------------------------

\16\ 76 FR 67184 (October 31, 2011).
---------------------------------------------------------------------------

In response to EPA's October 31, 2011 Federal Register notice, EPA
received one public comment, from Airlines for America (``A4A''). A4A
comments that California's LSI regulations as applicable to airport
ground support equipment is preempted by the Federal Aviation Act and
the Airline Deregulation Act.

II. Discussion

A. California's Protectiveness Determination

Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an
authorization if the agency finds that California was arbitrary and
capricious in its determination that its standards are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards. CARB's Board made a protectiveness
determination in Resolution 06-11, finding that California's LSI
regulations will not cause the California emission standards, in the
aggregate, to be less protective of public health and welfare than
applicable federal standards.\17\ CARB presents that California's LSI
program is at least as stringent as the federal LSI program ``because
for 2010 and later model-year LSI engines, California's standard for
HC+NOX at 0.8 g/kW-hr is more stringent than applicable
federal standard at 2.0 g/kW-hr and California's other LSI engine
standards are equivalent to federal standards for these model years.''
\18\ CARB contends that its protectiveness determination, based on the
stringency of its program as compared to the federal program, ``clearly
is not arbitrary and capricious.'' \19\
---------------------------------------------------------------------------

\17\ ``BE IT FURTHER RESOLVED that the Board hereby determines,
pursuant to section 209(e)(2) of the federal Clean Air Act that the
emission standards and other requirements related to the control of
emissions adopted as part of these regulations are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards, that California needs the adopted
standards to meet compelling and extraordinary conditions, and that
the adopted standards and accompanying enforcement procedures are
consistent with the provisions in section 209.'' CARB, Resolution
06-11, EPA-HQ-OAR-2011-0830-0003.
\18\ CARB, Request for Authorization at 19.
\19\ Id.
---------------------------------------------------------------------------

EPA did not receive any comments challenging California's
protectiveness determination. Therefore, based on the record before us,
EPA finds that opponents of the authorization have not shown that
California was arbitrary and capricious in its determination that its
standards are, in the aggregate, at least as protective of public
health and welfare as applicable federal standards.

B. Need for California Standards To Meet Compelling and Extraordinary
Conditions

Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an
authorization if the agency finds that California ``does not need such
California standards to meet compelling and extraordinary conditions *
* *.'' This criterion restricts EPA's inquiry to whether California
needs its own mobile source pollution program to meet compelling and
extraordinary conditions, and not whether any given standards are
necessary to meet such conditions.\20\ As discussed above, for over
forty years CARB has repeatedly demonstrated the need for its mobile
source emissions program to address compelling and extraordinary
conditions in California. In its Resolution 06-11, CARB affirmed its
longstanding position that California continues to need its own motor
vehicle and engine program to meet its serious air pollution problems.
Likewise, EPA has consistently recognized that California continues to
have the same ``geographical and climatic conditions that, when
combined with the large numbers and high concentrations of automobiles,
create serious pollution problems.'' \21\ Furthermore, no commenter has
presented any argument or evidence to suggest that California no longer
needs a separate mobile source emissions program to address compelling
and extraordinary conditions in California. Therefore, EPA has
determined that we cannot deny California an authorization for its LSI
regulations under section 209(e)(2)(ii).
---------------------------------------------------------------------------

\20\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
\21\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042
(September 8, 2008).
---------------------------------------------------------------------------

C. Consistency With Section 209 of the Clean Air Act

Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant
an authorization if California's standards and enforcement procedures
are not consistent with section 209. As described above, EPA has
historically evaluated this criterion for consistency with sections
209(a), 209(e)(1), and 209(b)(1)(C).
1. Consistency With Section 209(a)
To be consistent with section 209(a) of the Clean Air Act,
California's LSI regulations must not apply to new motor vehicles or
new motor vehicle engines. California's LSI regulations expressly apply
only to off-road vehicles and do not apply to engines used in motor
vehicles as defined by section 216(2) of the Clean Air Act.\22\ No
commenter presented otherwise. Therefore, EPA cannot deny California's
request on the basis that California's LSI regulations are not
consistent with section 209(a).
---------------------------------------------------------------------------

\22\ CARB, Request for Authorization at 20.
---------------------------------------------------------------------------

2. Consistency With Section 209(e)(1)
To be consistent with section 209(e)(1) of the Clean Air Act,
California's LSI regulations must not affect new farming or
construction vehicles or engines that are below 175 horsepower, or new
locomotives or their engines. CARB presents that the Board ``ensured
consistency with section 209(e)(1) by specifically excluding new off-
road engines under 175 horsepower primarily used in farm and
construction vehicles and equipment from the definition of off-road LSI
engines.'' \23\ No commenter presented otherwise. Therefore, EPA cannot
deny California's request on the basis that California's LSI
regulations are not consistent with section 209(e)(1).
---------------------------------------------------------------------------

\23\ Id.
---------------------------------------------------------------------------

3. Consistency With Section 209(b)(1)(C)
The requirement that California's standards be consistent with
section 209(b)(1)(C) of the Clean Air Act effectively requires
consistency with section 202(a) of the Act. California standards are
inconsistent with section 202(a) of the Act if there is inadequate
lead-time to permit the development of technology necessary to meet
those requirements, giving appropriate consideration to the cost of
compliance within that timeframe. California's accompanying enforcement
procedures would also be inconsistent with section 202(a) if federal
and California test procedures conflicted. The scope of EPA's review of
whether California's action is consistent with section 202(a) is
narrow. The determination is limited to whether those opposed to the
authorization or waiver have met their burden of establishing that
California's standards are technologically infeasible, or that
California's test procedures

[[Page 20391]]

impose requirements inconsistent with the federal test procedures.\24\
---------------------------------------------------------------------------

\24\ MEMA I, 627, F.2d at 1126.
---------------------------------------------------------------------------

a. Technological Feasibility
Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\25\ Section 202(a)(2)
states, in part, that any regulation promulgated under its authority
``shall 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.'' Section 202(a) thus requires the Administrator to
first determine whether adequate technology already exists; or if it
does not, whether there is adequate time to develop and apply the
technology before the standards go into effect. The latter scenario
also requires the Administrator to decide whether the cost of
developing and applying the technology within that time is feasible.
Previous EPA waivers are in accord with this position.\26\ For example,
a previous EPA waiver decision considered California's standards and
enforcement procedures to be consistent with section 202(a) because
adequate technology existed as well as adequate lead-time to implement
that technology.\27\ Subsequently, Congress has stated that, generally,
EPA's construction of the waiver provision has been consistent with
congressional intent.\28\
---------------------------------------------------------------------------

\25\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
\26\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
\27\ 41 FR 44209 (October 7, 1976).
\28\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
---------------------------------------------------------------------------

CARB presents that the technology required to comply with its LSI
regulations is currently available, and that it has provided sufficient
lead-time, giving consideration to cost of compliance.\29\ CARB points
to EPA's own analysis in the federal rule for these same engines, but
also separately concluded that fleet owners will be able to absorb or
pass compliance costs to their customers. CARB's LSI fleet requirements
progressively increase in stringency from year-to-year, and allow a
variety of compliance options, including combinations of retrofits that
have already been verified, lower-emission purchases, and zero emission
purchases. Capital costs of these options range from $30 to $5,000, and
may be exceeded by resultant lowered fuel use and lessened maintenance.
CARB also points out that fleet requirements apply selectively, provide
several exemptions, and that compliance extensions may be granted.
---------------------------------------------------------------------------

\29\ CARB, Request for Authorization at 24-28.
---------------------------------------------------------------------------

EPA did not receive any comments suggesting that CARB's standards
and test procedures are technologically infeasible. Consequently, based
on the record, EPA cannot deny California's authorization based on
technological infeasibility.
b. Consistency of Certification Procedures
California's standards and accompanying enforcement procedures
would also be inconsistent with section 202(a) if the California test
procedures were to impose certification requirements inconsistent with
the federal certification requirements. Such inconsistency means that
manufacturers would be unable to meet both the California and federal
testing requirements using the same test vehicle or engine.\30\ CARB
presents that the LSI fleet requirements raise no issue regarding test
procedure consistency because there are no analogous federal test
procedures for LSI retrofit technologies.\31\ CARB also points out that
its retrofit verification program is a voluntary program available to
retrofit device manufacturers, and not directly required of fleet
owners.
---------------------------------------------------------------------------

\30\ See, e.g., 43 FR 32182 (July 25, 1978).
\31\ CARB, Request for Authorization at 28.
---------------------------------------------------------------------------

EPA received no comments suggesting that CARB's LSI regulations
pose any test procedure consistency problem. Therefore, based on the
record, EPA cannot find that CARB's testing procedures are inconsistent
with section 202(a). Consequently, EPA cannot deny CARB's request based
on this criterion.

D. Other Issues

Airlines for America (``A4A'') has provided comments opposing EPA's
grant of authorization for California's LSI regulations. The reasons
A4A provides in its comments are outside the scope of EPA's scope of
review of California authorization requests under section 209(e)(2).
A4A claims that California's LSI rules are preempted by the Federal
Aviation Act and the Airline Deregulation Act. As EPA has stated on
numerous occasions, EPA's review of California regulations under
section 209 is not a broad review of the reasonableness of the
regulations or its compatibility with all other laws. Sections 209(b)
and 209(e) of the Clean Air Act limit our authority to deny California
requests for waivers and authorizations to the three criteria listed
therein. As a result, EPA has consistently refrained from denying
California's requests for waivers and authorizations based on any other
criteria.\32\ In instances where the U.S. Court of Appeals has reviewed
EPA decisions declining to deny waiver requests based on criteria not
found in section 209(b), the Court has upheld and agreed with EPA's
determination.\33\ A4A's comment raises issues of federal preemption
that are not included within the criteria listed under sections 209(b)
and 209(e).\34\ Therefore, in considering whether to grant
authorization for California's LSI regulations under section 209(e),
EPA cannot deny California's request for authorization based on the
issues raised by A4A.
---------------------------------------------------------------------------

\32\ See, e.g., 74 FR 32744, 32783 (July 8, 2009).
\33\ See Motor and Equipment Manufacturers Ass'n v. Nichols, 142
F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and Equipment
Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 (D.C. Cir.
1979).
\34\ A4A may raise these issues in a direct challenge to
California's regulations in other forums, but these issues are not
relevant to EPA's limited review under section 209.
---------------------------------------------------------------------------

E. Authorization Determination for California's LSI Regulations

After a review of the information submitted by CARB and A4A, EPA
finds that those opposing California's request have not met the burden
of demonstrating that authorization for California's LSI regulations
should be denied based on any of the statutory criteria of section
209(e)(2). For this reason, EPA finds that an authorization for
California's LSI regulations should be granted.

III. Decision

The Administrator has delegated the authority to grant California
section 209(e) authorizations to the Assistant Administrator for Air
and Radiation. After evaluating California's LSI regulations, CARB's
submissions, and the public comments from A4A, EPA is granting an
authorization to California for its LSI regulations.
My decision will affect not only persons in California, but also
entities outside the State who must comply with California's
requirements. For this reason, I determine and find that this is a
final action of national applicability for purposes of section
307(b)(1) of the Act. Pursuant to section 307(b)(1) of the Act,
judicial review of this final action may be sought only in the United
States Court of Appeals for the District of Columbia Circuit. Petitions
for review must be filed by June 4, 2012. Judicial review of this final
action may not be obtained in subsequent enforcement proceedings,
pursuant to section 307(b)(2) of the Act.

[[Page 20392]]

IV. 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.
Further, the Congressional Review Act, 5 U.S.C. 801, et seq., 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).

Dated: March 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-8112 Filed 4-3-12; 8:45 am]
BILLING CODE 6560-50-P

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