California State Nonroad Engine Pollution Control Standards; Portable Equipment Registration Program; Notice of Decision, 72851-72856 [2012-29513]
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Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices
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.52 CARB presents that the PDE
regulation raises no issue regarding test
procedure consistency because the
regulation does not establish any test
procedures for which there are
comparable federal test procedures.53
EPA received no comments suggesting
that CARB’s PDE regulation poses 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.
E. Authorization Determination for
California’s PDE Regulation
After a review of the information
submitted by CARB, EPA finds that
those opposing California’s request have
not met the burden of demonstrating
that authorization for California’s PDE
regulation 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 PDE
regulation should be granted.
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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 PDE
regulation and CARB’s submissions,
EPA is granting an authorization to
California for its PDE regulation.
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 February 4, 2013.
Judicial review of this final action may
not be obtained in subsequent
enforcement proceedings, pursuant to
section 307(b)(2) of the Act.
52 See,
e.g., 43 FR 32182 (July 25, 1978).
53 CARB Support Document at 27.
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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: November 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and
Radiation.
[FR Doc. 2012–29511 Filed 12–5–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9758–1]
California State Nonroad Engine
Pollution Control Standards; Portable
Equipment Registration Program;
Notice of Decision
Environmental Protection
Agency (EPA).
ACTION: Notice of Decision.
AGENCY:
EPA is granting authorization
for the California Air Resources Board’s
(CARB’s) amendments to its Portable
Equipment Registration Program (PERP),
and confirming that certain portions of
CARB’s PERP program is within the
scope of previous EPA authorizations.
PERP is a voluntary statewide program
that enables registration of nonroad
engines and equipment that operate at
multiple locations across California, so
that the engine and equipment owners
can operate throughout California
without obtaining permits from local air
pollution control districts.
DATES: Petitions for review must be filed
by February 4, 2013.
ADDRESSES: EPA has established a
docket for this action under Docket ID
EPA–HQ–OAR–2011–0102. 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
SUMMARY:
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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-rDocket@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–2011–0102 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 PERP Authorization
Request
In a letter dated December 5, 2008,
CARB submitted to EPA its request
pursuant to section 209 of the Clean Air
Act (‘‘CAA’’ or ‘‘the Act’’), regarding its
Portable Equipment Registration
Program (‘‘PERP’’).1 The PERP was
1 California Air Resources Board (CARB), Request
for Authorization, December 5, 2008, EPA–HQ–
OAR–2011–0102–0002.
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established by CARB as a voluntary
program to address the concern that
equipment owners who moved
equipment within California often faced
the need to obtain preconstruction and
operating permits from different local
air pollution control districts in the
state.2 The PERP allows voluntary
registration of either spark-ignition (SI)
or compression-ignition (CI) portable
piston driven internal combustion
engines or portable equipment units.
Under the PERP, once registered,
equipment is no longer subject to local
air pollution control district permitting
requirements. Rather, registration with
the PERP allows equipment to be moved
more freely within the state. ‘‘Portable’’
as defined within CARB’s PERP
program, means equipment that is
designed and capable of being
transported from one location to
another. Not all equipment is eligible for
registration in the PERP; generally,
engines used for propulsion, as part of
a stationary source, or used to produce
power into the California electricity grid
are not eligible for registration under the
PERP. The PERP sets out four general
requirements applicable to all registered
equipment: (1) Registered equipment
may not operate in a manner that causes
a nuisance; (2) registered equipment
may not interfere with attainment of
federal or state air quality standards; (3)
registered equipment may not cause an
exceedance of an ambient air quality
standard; and (4) owners of registered
equipment (or combined operation of
such equipment) must provide notice
and comply with requirements for
prevention of significant deterioration
(PSD) if it would constitute a major
modification of that source. The PERP
also has specific requirements for both
registered engines and certain types of
equipment units. For engines, the
specific requirements include fuel-type
restrictions, opacity limits, mass
emissions and emission concentration
limits, and metering requirements,
based on engine size. With limited
exceptions, after January 1, 2006, only
engines that meet the most stringent
CARB or EPA emission standards in
2 CARB notes in its request that ‘‘For the record,
CARB believes that because participation in the
Statewide Program is voluntary, the emission
standards for registered nonroad engines are not
subject to the [Clean Air Act] § 209 preemption.
Since the emission standards apply only if an
owner voluntarily elects to register, the standards
do not constitute ‘standards and other
requirements’ within the meaning of section 209(e),
which CARB believes only applies to mandated
requirements. However, without prejudice to
CARB’s position and to avoid further delay in
obtaining federal authorization, CARB submits this
request.’’ EPA takes no position here on CARB’s
beliefs with respect to its need for authorization of
a voluntary program.
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effect at the time of registration are
allowed in the PERP. Registered
compression-ignition engines must also
meet requirements of the CARB
Airborne Toxic Control Measure
(ATCM) for in-use portable diesel-fueled
engines 50 brake-horsepower (hp) and
greater portable engines (CARB’s
portable diesel equipment (PDE)
regulations).3 For equipment, the PERP
sets daily and annual mass emission
limits for all registered equipment units
(exclusive of engine emissions). Certain
types of equipment, such as concrete
batch plants and rock crushing and
screening plants, have specific,
additional requirements, primarily
aimed to minimize particulate
emissions associated with their
operation. The PERP also includes
regulatory requirements for
recordkeeping, reporting, inspection,
testing, fee collection, and enforcement.
In 1995, the California Legislature
passed Assembly Bill (AB) 531 to
address a perceived problem with the
use of portable equipment and
associated engines that were operated in
more than one air pollution control
district.4 CARB was directed by AB 531
to create and administer a voluntary
statewide program for the registration of
portable equipment.5 In 1997, CARB
adopted regulations creating the PERP,6
which was amended by CARB in 1998,
2005, 2006, and March 2007.7 CARB
adopted Resolution 07–9 on March 22,
2007, which amended the PERP, after a
public hearing held earlier that month.8
Executive Order G–07–013 was issued
by the Executive Officer, and the
regulations were submitted to the Office
of Administrative Law (OAL), on July
31, 2007.9 On September 12, 2007, OAL
approved the regulations and they
became operative the same day.10
CARB has requested that EPA confirm
that parts of the voluntary PERP for
portable engines and equipment fall
within the scope of previously issued
authorizations or submitted
authorization requests (i.e., the ATCM
for Portable Diesel Engines),11 and that
3 CARB has requested an authorization for its air
toxic control measure for portable diesel engines.
EPA announced the opportunity for public hearing
and public comment on that request by a Federal
Register notice published February 9, 2011. See 76
FR 7196 (February 9, 2011).
4 CARB, Request for Authorization at 2; California
Health and Safety Code (CA HSC) § 41750.
5 CA HSC § 41752.
6 California Code of Regulations, title 13 §§ 2450
through 2465.
7 CARB, Request for Authorization at 3.
8 Id.; CARB, Resolution 07–9 at 1.
9 CARB, Resolution 07–9 at 1.
10 Id.
11 See California State Nonroad Engine Pollution
Control Standards; Authorization of State Standards
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the Administrator grant a new
authorization for those emission
standards not otherwise covered by a
within-the-scope confirmation.
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 certain
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
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.12
EPA later revised these regulations in
1997.13 As stated in the preamble to the
1994 rule, EPA has historically
for 1996 and later New Diesel Cycle Engines 175
Horsepower and Greater, 60 FR 48981 (September
21, 1995); California State Nonroad Engine and
Vehicle Pollution Control Standards; Authorization
of Large Off-Road Spark-Ignition Engine Standards,
Notice of Decision, 71 FR 29621 (May 23, 2006).
12 59 FR 36969 (July 20, 1994).
13 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.
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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).14
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.
If California amends regulations that
were previously granted an
authorization, EPA can confirm that the
amended regulations are within the
scope of the previously granted
authorization. Such within-the-scope
amendments are permissible without a
full authorization review if three
conditions are met. First, the amended
regulations must not undermine
California’s determination that its
standards, in the aggregate, are as
protective of public health and welfare
as applicable federal standards. Second,
the amended regulations must not affect
consistency with section 202(a) of the
Act. Third, the amended regulations
must not raise any ‘‘new issues’’
affecting EPA’s prior authorizations.
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.15
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.’’ 16
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.17 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.18
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.’’ 19
15 MEMA
I, 627 F.2d at 1122.
14 59
FR 36969 (July 20, 1994).
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[t]he language of the statute and it’s
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.20
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.’ ’’ 21 Therefore, the
Administrator’s burden is to act
‘‘reasonably.’’ 22
D. EPA’s Administrative Process in
Consideration of CARB’s PERP Request
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 February 9, 2011.23 Specifically, we
requested comment on: (a) Whether
CARB’s determination that its
standards, in the aggregate, are at least
as protective of public health and
welfare as applicable federal standards
is arbitrary and capricious, (b) whether
California needs such standards to meet
compelling and extraordinary
conditions, and (c) whether California’s
standards and accompanying
enforcement procedures are consistent
with section 209 of the Act.
In response to EPA’s February 9, 2011
Federal Register notice,24 EPA received
one request for a hearing, which was
20 MEMA
21 Id.
17 Id.
I, 627 F.2d at 1121.
at 1126.
22 Id.
19 See,
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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:
16 Id.
18 Id.
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e.g., 40 FR 21102–103 (May 28, 1975).
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FR 7194 (February 9, 2011).
24 Id.
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later withdrawn, and no public
comments.25
II. Discussion
A. Full Authorization Analysis
1. 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
made a protectiveness determination in
Resolution 07–9, finding that
California’s PERP is, ‘‘in the aggregate,
at least as protective of public health
and welfare as applicable federal
standards.’’ 26 CARB presents that
California’s PERP is at least as stringent
as the federal standards: ‘‘since no
federal standards exist for in-use
nonroad engines,27 the emissions
standards [submitted] are
unquestionably as protective of
comparable federal regulations.’’ 28
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.
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2. 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.29 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
25 EPA, ‘‘Memorandum from Brianna Iddings to
Docket ID EPA–HQ–OAR–2011–0102,’’ EPA–HQ–
OAR–2011–0102–0014.
26 CARB, Resolution 07–9 at 5.
27 CAA § 213.
28 CARB, Request for Authorization at 14.
29 See 74 FR 32744, 32761 (July 8, 2009); 49 FR
18887, 18889–18890 (May 3, 1984).
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Resolution 07–9, CARB affirmed its
longstanding position that, in order to
fight its serious air pollution problems,
‘‘California needs its off-road engine
emission standards to meet compelling
and extraordinary conditions.’’ 30
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.’’ 31
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 PERP under section 209(e)(2)(ii).
3. 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).
a. Consistency With Section 209(a)
To be consistent with section 209(a)
of the Clean Air Act, California’s PERP
must not apply to new motor vehicles
or new motor vehicle engines.
California’s PERP expressly applies only
to portable vehicles and expressly
precludes registration of engines used to
propel motor vehicles as defined by
section 216(2) of the Clean Air Act.32 No
commenter presented otherwise.
Therefore, EPA cannot deny California’s
request on the basis that California’s
PERP is not consistent with section
209(a).
b. Consistency With Section 209(e)(1)
To be consistent with section
209(e)(1) of the Clean Air Act,
California’s PERP must not affect new
farming or construction vehicles or
engines that are below 175 horsepower,
or new locomotives or their engines.
CARB presents that ‘‘locomotive and
locomotive engines cannot be registered
in the Statewide Program.’’ 33 CARB also
presents that new farm and construction
equipment do not fall under the
program.34 No commenter presented
otherwise. Therefore, EPA cannot deny
California’s request on the basis that
California’s PERP is not consistent with
section 209(e)(1).
c. 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
impose requirements inconsistent with
the federal test procedures.35
i. Technological Feasibility
Congress has stated that the
consistency requirement of section
202(a) relates to technological
feasibility.36 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.37 For
example, a previous EPA waiver
decision considered California’s
standards and enforcement procedures
to be consistent with section 202(a)
34 Id.
30 CARB,
Resolution 07–9 at 5.
31 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).
32 CARB, Request for Authorization at 12.
33 Id. at 13.
PO 00000
Frm 00042
Fmt 4703
Sfmt 4703
35 MEMA
36 H.R.
I, 627 F.2d at 1126.
Rep. No. 95–294, 95th Cong., 1st Sess. 301
(1977).
37 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43
FR 32182, 32183 (July 25, 1978); 41 FR 44209,
44213 (October 7, 1976).
E:\FR\FM\06DEN1.SGM
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Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices
because adequate technology existed as
well as adequate lead-time to implement
that technology.38 Subsequently,
Congress has stated that, generally,
EPA’s construction of the waiver
provision has been consistent with
congressional intent.39
CARB presents that the technology
required to comply with its PERP has
already been established and is
currently available.40 CARB has
determined that ‘‘participants in the
Statewide Program can pass on any
compliance costs without incurring
significant economic disruption.’’ 41
CARB further stresses that admission
into PERP is entirely voluntary, so any
costs associated with compliance of the
program are voluntarily incurred by
those that choose to participate in the
program.42
CARB staff estimate ‘‘that the total
economic impact of the proposed
amendments to the Statewide PERP
Regulation to affect private businesses
and public agencies is $6.6 million over
its lifetime ($6.1 million for private
businesses and $0.5 million for public
agencies).’’ 43 The economic impact
comes from fees for non-compliant
engines. However, if affected parties
were instead required to purchase new
engines that meet current emission
standards, the overall cost to those
parties would be around $250 million.44
The PERP thus results in an estimated
savings of $243.4 million.45
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.
ii. 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
38 41
FR 44209 (October 7, 1976).
Rep. No. 95–294, 95th Cong., 1st Sess. 301
mstockstill on DSK4VPTVN1PROD with
39 H.R.
(1977).
40 CARB, Request for Authorization at 16–17.
41 Id. at 16.
42 Id.
43 CARB Staff Report: Initial Statement of Reasons
for the Proposed Amendments to the Statewide
Portable Equipment Registration Program
Regulation and Airborne Toxic Control Measure for
Diesel Particulate Matter From Portable Engines at
vi.–vii.
44 Id. at vii.
45 Id.
VerDate Mar<15>2010
16:42 Dec 05, 2012
Jkt 229001
California and federal testing
requirements using the same test vehicle
or engine.46 CARB presents that the
PERP requirements raise no issue
regarding test procedure consistency
because the tests procedures
incorporated into the program are
existing EPA and CARB test
procedures.47 Either agency’s test
procedures may be used to demonstrate
compliance with the program.48
EPA received no comments suggesting
that CARB’s PERP poses 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. Full Authorization Determination for
California’s PERP Regulations
After a review of the information
submitted by CARB, EPA finds that
those opposing California’s request have
not met the burden of demonstrating
that authorization for California’s PERP
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 PERP
should be granted.
B. Within-the Scope Confirmation
In our February 9, 2011 Federal
Register notice, EPA sought comment
on a range of issues, including those
applicable to a within-the-scope
analysis as well as those applicable to
a full waiver analysis. EPA received no
public comment in response to our
request, including no public comments
on whether EPA should consider
CARB’s request according to a withinthe-scope analysis of full authorization
analysis. Therefore, we have evaluated
CARB’s request by application of our
traditional analysis of authorizations. At
the same time, CARB believes it meets
the requirements for a within-the-scope
confirmation to the extent that EPA has
already authorized the numeric
emission standards referenced in its
PERP program. According to our
analysis, as discussed below, we can
confirm that the PERP program is within
the scope of previous authorizations
issued on September 21, 1995 (60 FR
48981), May 23, 2006 (71 FR 29621),
and April 4, 2012 (75 FR 8056).
If California amends regulations that
were previously granted an
authorization, EPA can confirm that the
amended regulations are within the
scope of the previously granted
46 See,
e.g., 43 FR 32182 (July 25, 1978).
Request for Authorization at 17.
47 CARB,
48 Id.
PO 00000
Frm 00043
Fmt 4703
Sfmt 4703
72855
authorization. Such within-the-scope
amendments are permissible without a
full authorization review if three
conditions are met. First, the amended
regulations must not undermine
California’s determination that its
standards, in the aggregate, are as
protective of public health and welfare
as applicable federal standards. Second,
the amended regulations must not affect
consistency with section 209 of the Act.
Third, the amended regulations must
not raise any ‘‘new issues’’ affecting
EPA’s prior authorizations.
EPA issued an authorization of
CARB’s diesel emission standards for
1996 and later new diesel cycle engines
175 horsepower and greater on
September 21, 1995 (60 FR 48981). EPA
also issued authorizations applicable to
CARB’s large off-road spark-ignition
engine standards on May 23, 2006 (71
FR 29621) and April 4, 2012 (75 FR
8056). As discussed above, the first two
within-the-scope criteria regarding
protectiveness and consistency with
section 209 of the Act have been
established for the PERP program.
Additionally, because registration to
such standards does not appear to
present a new issue, and no commenter
presented otherwise, EPA can confirm
that CARB’s PERP program is within the
scope of the above-noted EPA
authorizations, to the extent that the
PERP requirements are reliant upon the
emission standards at the heart of the
above-noted authorizations.49 To the
extent that CARB’s PERP program
allows registration of engines and
equipment to emission standards that
are not the subject of a previous EPA
authorization, EPA cannot confirm they
are within the scope as consideration of
those provisions present ‘‘new issues’’
that have not previously been the
subject of an authorization.
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 PERP
amendments, and CARB’s submissions,
EPA is granting an authorization to
California for its PERP amendments. To
the extent that the PERP program allows
registration of equipment for which EPA
has already issued authorizations to
California, EPA is confirming that those
49 To the extent that any provision in CARB’s
PERP program, which is herein confirmed as within
the scope, is later construed as not within-the-scope
of EPA’s prior authorizations, then a full
authorization is appropriate and granted based
upon the full authorization evaluation as discussed
above.
E:\FR\FM\06DEN1.SGM
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72856
Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices
provisions are within the scope of its
previous authorizations.
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 February 4, 2013.
Judicial review of this final action may
not be obtained in subsequent
enforcement proceedings, pursuant to
section 307(b)(2) of the Act.
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: November 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and
Radiation.
[FR Doc. 2012–29513 Filed 12–5–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9758–3]
New York State Prohibition of
Discharges of Vessel Sewage; Receipt
of Petition and Tentative Affirmative
Determination
Environmental Protection
Agency (EPA).
ACTION: Notice—receipt of petition and
tentative affirmative determination.
mstockstill on DSK4VPTVN1PROD with
AGENCY:
Notice is given that, pursuant
to Clean Water Act Section 312(f)(3), the
State of New York has determined that
the protection and enhancement of the
SUMMARY:
VerDate Mar<15>2010
16:42 Dec 05, 2012
Jkt 229001
quality of the New York State (NYS or
the State) portion of Lake Erie requires
greater environmental protection, and
has petitioned the United States
Environmental Protection Agency,
Region 2, for a determination that
adequate facilities for the safe and
sanitary removal and treatment of
sewage from all vessels are reasonably
available for those waters, so that the
State may completely prohibit the
discharge from all vessels of any
sewage, whether treated or not, into
such waters.
New York State has proposed to
establish a ‘‘Vessel Waste No Discharge
Zone’’ for the State’s portion of Lake
Erie stretching from the PennsylvaniaNew York State boundary to include the
upper Niagara River to Niagara Falls.
The proposed No Discharge Zone
encompasses approximately 593 square
miles and 84 linear shoreline miles,
including the navigable portions of the
Upper Niagara River and numerous
other tributaries and harbors, and
embayments of the Lake, including
Barcelona Harbor, Dunkirk Harbor and
Buffalo Outer Harbor, and other
formally designated habitats and
waterways of local, state, and national
significance.
DATES: Comments regarding this
tentative determination are due by
January 7, 2013.
Petition: You may view Lake Erie No
Discharge Zone Petition by clicking the
link below: https://www.epa.gov/
region02/water/permits.html.
ADDRESSES: You may submit comments
by any of the following methods:
• Email: chang.moses@epa.gov.
Include ‘‘Comments on Tentative
Affirmative Decision for NYS Lake Erie
NDZ’’ in the subject line of the message.
• Fax: 212–637–3891.
• Mail and Hand Delivery/Courier:
Moses Chang, U.S. EPA Region 2, 290
Broadway, 24th Floor, New York, NY
10007–1866. Deliveries are only
accepted during the Regional Office’s
normal hours of operation (8 a.m. to 5
p.m., Monday through Friday, excluding
federal holidays), and special
arrangements should be made for
deliveries of boxed information.
FOR FURTHER INFORMATION CONTACT:
Moses Chang, (212) 637–3867, email
address: chang.moses@epa.gov.
SUPPLEMENTARY INFORMATION: Notice is
given that the State of New York has
petitioned the United States
Environmental Protection Agency
(EPA), Region 2, pursuant to section
312(f)(3) of Public Law 92–500 as
amended by Public Law 95–217 and
Public Law 100–4, that adequate
facilities for the safe and sanitary
PO 00000
Frm 00044
Fmt 4703
Sfmt 4703
removal and treatment of sewage from
all vessels are reasonably available for
the NYS portion of Lake Erie. Adequate
pumpout facilities are defined as one
pumpout station for every 300–600
boats under the Clean Vessel Act:
Pumpout Station and Dump Station
Technical Guidelines (Federal Register,
Vol. 59, No. 47, March 10, 1994).
The Great Lakes are the largest group
of freshwater lakes on Earth, containing
95% of the fresh surface water in the
United States and serving as the largest
single reservoir on Earth. The glacial
history and the influence of the Lakes
themselves create unique conditions
that support a wealth of biological
diversity, including over 200 globally
rare plants and animals and more than
40 species that are found nowhere else
in the world.
Lake Erie is the smallest of the Great
Lakes. It is also the shallowest, with
depths that range from an approximate
average of 24 feet in the western basin,
to 82 feet in the deeper eastern basin. As
the shallowest of the Great Lakes, it
warms quickly in the spring and
summer, and cools quickly in the fall.
This shallowness and the warmer
temperatures result in making Lake Erie
the most biologically productive of the
Great Lakes.
The New York State Department of
Environmental Conservation (DEC)
developed the New York State petition
in collaboration with New York State
Department of State (DOS) and the New
York State Environmental Facilities
Corporation (EFC) to establish a vessel
waste No Discharge Zone (NDZ) on the
open waters, tributaries, harbors and
embayments of New York State’s
portion of Lake Erie.
A Clean Water Act Section
312(f)(4)(B) NDZ designation for
drinking water intake zones might be
appropriate for the vast majority of the
Lake Erie waters included in this
petition. However, to address the few
areas that are not Class A (including
Barcelona Harbor, Dunkirk Harbor and
the Black Rock Canal), the State is
seeking a determination by EPA, under
Section 312(f)(3), that adequate facilities
exist for the safe and sanitary removal
and treatment of sewage from all vessels
using this area of the Lake, and has
provided information on Lake resources,
vessel traffic, and vessel pumpout
facilities in support of such a
determination. In support of its petition,
the state also submitted a Certification
of the Need for Greater Protection and
Enhancement of Lake Erie waters.
The Lake Erie watershed is home to
approximately one-third of the total
human population of the Great Lakes
basin: 11.6 million people (10 million
E:\FR\FM\06DEN1.SGM
06DEN1
]]>Agencies
[Federal Register Volume 77, Number 235 (Thursday, December 6, 2012)]
[Notices]
[Pages 72851-72856]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29513]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9758-1]
California State Nonroad Engine Pollution Control Standards;
Portable Equipment Registration Program; Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Decision.
-----------------------------------------------------------------------
SUMMARY: EPA is granting authorization for the California Air Resources
Board's (CARB's) amendments to its Portable Equipment Registration
Program (PERP), and confirming that certain portions of CARB's PERP
program is within the scope of previous EPA authorizations. PERP is a
voluntary statewide program that enables registration of nonroad
engines and equipment that operate at multiple locations across
California, so that the engine and equipment owners can operate
throughout California without obtaining permits from local air
pollution control districts.
DATES: Petitions for review must be filed by February 4, 2013.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2011-0102. 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-2011-0102 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 PERP Authorization Request
In a letter dated December 5, 2008, CARB submitted to EPA its
request pursuant to section 209 of the Clean Air Act (``CAA'' or ``the
Act''), regarding its Portable Equipment Registration Program
(``PERP'').\1\ The PERP was
[[Page 72852]]
established by CARB as a voluntary program to address the concern that
equipment owners who moved equipment within California often faced the
need to obtain preconstruction and operating permits from different
local air pollution control districts in the state.\2\ The PERP allows
voluntary registration of either spark-ignition (SI) or compression-
ignition (CI) portable piston driven internal combustion engines or
portable equipment units. Under the PERP, once registered, equipment is
no longer subject to local air pollution control district permitting
requirements. Rather, registration with the PERP allows equipment to be
moved more freely within the state. ``Portable'' as defined within
CARB's PERP program, means equipment that is designed and capable of
being transported from one location to another. Not all equipment is
eligible for registration in the PERP; generally, engines used for
propulsion, as part of a stationary source, or used to produce power
into the California electricity grid are not eligible for registration
under the PERP. The PERP sets out four general requirements applicable
to all registered equipment: (1) Registered equipment may not operate
in a manner that causes a nuisance; (2) registered equipment may not
interfere with attainment of federal or state air quality standards;
(3) registered equipment may not cause an exceedance of an ambient air
quality standard; and (4) owners of registered equipment (or combined
operation of such equipment) must provide notice and comply with
requirements for prevention of significant deterioration (PSD) if it
would constitute a major modification of that source. The PERP also has
specific requirements for both registered engines and certain types of
equipment units. For engines, the specific requirements include fuel-
type restrictions, opacity limits, mass emissions and emission
concentration limits, and metering requirements, based on engine size.
With limited exceptions, after January 1, 2006, only engines that meet
the most stringent CARB or EPA emission standards in effect at the time
of registration are allowed in the PERP. Registered compression-
ignition engines must also meet requirements of the CARB Airborne Toxic
Control Measure (ATCM) for in-use portable diesel-fueled engines 50
brake-horsepower (hp) and greater portable engines (CARB's portable
diesel equipment (PDE) regulations).\3\ For equipment, the PERP sets
daily and annual mass emission limits for all registered equipment
units (exclusive of engine emissions). Certain types of equipment, such
as concrete batch plants and rock crushing and screening plants, have
specific, additional requirements, primarily aimed to minimize
particulate emissions associated with their operation. The PERP also
includes regulatory requirements for recordkeeping, reporting,
inspection, testing, fee collection, and enforcement.
---------------------------------------------------------------------------
\1\ California Air Resources Board (CARB), Request for
Authorization, December 5, 2008, EPA-HQ-OAR-2011-0102-0002.
\2\ CARB notes in its request that ``For the record, CARB
believes that because participation in the Statewide Program is
voluntary, the emission standards for registered nonroad engines are
not subject to the [Clean Air Act] Sec. 209 preemption. Since the
emission standards apply only if an owner voluntarily elects to
register, the standards do not constitute `standards and other
requirements' within the meaning of section 209(e), which CARB
believes only applies to mandated requirements. However, without
prejudice to CARB's position and to avoid further delay in obtaining
federal authorization, CARB submits this request.'' EPA takes no
position here on CARB's beliefs with respect to its need for
authorization of a voluntary program.
\3\ CARB has requested an authorization for its air toxic
control measure for portable diesel engines. EPA announced the
opportunity for public hearing and public comment on that request by
a Federal Register notice published February 9, 2011. See 76 FR 7196
(February 9, 2011).
---------------------------------------------------------------------------
In 1995, the California Legislature passed Assembly Bill (AB) 531
to address a perceived problem with the use of portable equipment and
associated engines that were operated in more than one air pollution
control district.\4\ CARB was directed by AB 531 to create and
administer a voluntary statewide program for the registration of
portable equipment.\5\ In 1997, CARB adopted regulations creating the
PERP,\6\ which was amended by CARB in 1998, 2005, 2006, and March
2007.\7\ CARB adopted Resolution 07-9 on March 22, 2007, which amended
the PERP, after a public hearing held earlier that month.\8\ Executive
Order G-07-013 was issued by the Executive Officer, and the regulations
were submitted to the Office of Administrative Law (OAL), on July 31,
2007.\9\ On September 12, 2007, OAL approved the regulations and they
became operative the same day.\10\
---------------------------------------------------------------------------
\4\ CARB, Request for Authorization at 2; California Health and
Safety Code (CA HSC) Sec. 41750.
\5\ CA HSC Sec. 41752.
\6\ California Code of Regulations, title 13 Sec. Sec. 2450
through 2465.
\7\ CARB, Request for Authorization at 3.
\8\ Id.; CARB, Resolution 07-9 at 1.
\9\ CARB, Resolution 07-9 at 1.
\10\ Id.
---------------------------------------------------------------------------
CARB has requested that EPA confirm that parts of the voluntary
PERP for portable engines and equipment fall within the scope of
previously issued authorizations or submitted authorization requests
(i.e., the ATCM for Portable Diesel Engines),\11\ and that the
Administrator grant a new authorization for those emission standards
not otherwise covered by a within-the-scope confirmation.
---------------------------------------------------------------------------
\11\ See California State Nonroad Engine Pollution Control
Standards; Authorization of State Standards for 1996 and later New
Diesel Cycle Engines 175 Horsepower and Greater, 60 FR 48981
(September 21, 1995); California State Nonroad Engine and Vehicle
Pollution Control Standards; Authorization of Large Off-Road Spark-
Ignition Engine Standards, Notice of Decision, 71 FR 29621 (May 23,
2006).
---------------------------------------------------------------------------
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 certain 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 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.\12\ EPA later revised these regulations in 1997.\13\ As
stated in the preamble to the 1994 rule, EPA has historically
[[Page 72853]]
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).\14\
---------------------------------------------------------------------------
\12\ 59 FR 36969 (July 20, 1994).
\13\ 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.
\14\ 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.
If California amends regulations that were previously granted an
authorization, EPA can confirm that the amended regulations are within
the scope of the previously granted authorization. Such within-the-
scope amendments are permissible without a full authorization review if
three conditions are met. First, the amended regulations must not
undermine California's determination that its standards, in the
aggregate, are as protective of public health and welfare as applicable
federal standards. Second, the amended regulations must not affect
consistency with section 202(a) of the Act. Third, the amended
regulations must not raise any ``new issues'' affecting EPA's prior
authorizations.
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.\15\
---------------------------------------------------------------------------
\15\ 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.'' \16\
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\16\ Id.
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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.\17\ 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.\18\
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\17\ Id.
\18\ Id.
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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.'' \19\
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\19\ See, e.g., 40 FR 21102-103 (May 28, 1975).
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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 it's 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.\20\
\20\ MEMA I, 627 F.2d at 1121.
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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.' '' \21\ Therefore, the
Administrator's burden is to act ``reasonably.'' \22\
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\21\ Id. at 1126.
\22\ Id.
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D. EPA's Administrative Process in Consideration of CARB's PERP Request
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 February 9, 2011.\23\ Specifically, we requested
comment on: (a) Whether CARB's determination that its standards, in the
aggregate, are at least as protective of public health and welfare as
applicable federal standards is arbitrary and capricious, (b) whether
California needs such standards to meet compelling and extraordinary
conditions, and (c) whether California's standards and accompanying
enforcement procedures are consistent with section 209 of the Act.
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\23\ 76 FR 7194 (February 9, 2011).
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In response to EPA's February 9, 2011 Federal Register notice,\24\
EPA received one request for a hearing, which was
[[Page 72854]]
later withdrawn, and no public comments.\25\
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\24\ Id.
\25\ EPA, ``Memorandum from Brianna Iddings to Docket ID EPA-HQ-
OAR-2011-0102,'' EPA-HQ-OAR-2011-0102-0014.
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II. Discussion
A. Full Authorization Analysis
1. 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 made a protectiveness determination
in Resolution 07-9, finding that California's PERP is, ``in the
aggregate, at least as protective of public health and welfare as
applicable federal standards.'' \26\ CARB presents that California's
PERP is at least as stringent as the federal standards: ``since no
federal standards exist for in-use nonroad engines,\27\ the emissions
standards [submitted] are unquestionably as protective of comparable
federal regulations.'' \28\
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\26\ CARB, Resolution 07-9 at 5.
\27\ CAA Sec. 213.
\28\ CARB, Request for Authorization at 14.
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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.
2. 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.\29\ 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 07-9, CARB affirmed its
longstanding position that, in order to fight its serious air pollution
problems, ``California needs its off-road engine emission standards to
meet compelling and extraordinary conditions.'' \30\ 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.'' \31\ 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 PERP under
section 209(e)(2)(ii).
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\29\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
\30\ CARB, Resolution 07-9 at 5.
\31\ 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).
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3. 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).
a. Consistency With Section 209(a)
To be consistent with section 209(a) of the Clean Air Act,
California's PERP must not apply to new motor vehicles or new motor
vehicle engines. California's PERP expressly applies only to portable
vehicles and expressly precludes registration of engines used to propel
motor vehicles as defined by section 216(2) of the Clean Air Act.\32\
No commenter presented otherwise. Therefore, EPA cannot deny
California's request on the basis that California's PERP is not
consistent with section 209(a).
---------------------------------------------------------------------------
\32\ CARB, Request for Authorization at 12.
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b. Consistency With Section 209(e)(1)
To be consistent with section 209(e)(1) of the Clean Air Act,
California's PERP must not affect new farming or construction vehicles
or engines that are below 175 horsepower, or new locomotives or their
engines. CARB presents that ``locomotive and locomotive engines cannot
be registered in the Statewide Program.'' \33\ CARB also presents that
new farm and construction equipment do not fall under the program.\34\
No commenter presented otherwise. Therefore, EPA cannot deny
California's request on the basis that California's PERP is not
consistent with section 209(e)(1).
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\33\ Id. at 13.
\34\ Id.
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c. 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 impose requirements inconsistent with the
federal test procedures.\35\
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\35\ MEMA I, 627 F.2d at 1126.
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i. Technological Feasibility
Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\36\ 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.\37\ For example,
a previous EPA waiver decision considered California's standards and
enforcement procedures to be consistent with section 202(a)
[[Page 72855]]
because adequate technology existed as well as adequate lead-time to
implement that technology.\38\ Subsequently, Congress has stated that,
generally, EPA's construction of the waiver provision has been
consistent with congressional intent.\39\
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\36\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
\37\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
\38\ 41 FR 44209 (October 7, 1976).
\39\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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CARB presents that the technology required to comply with its PERP
has already been established and is currently available.\40\ CARB has
determined that ``participants in the Statewide Program can pass on any
compliance costs without incurring significant economic disruption.''
\41\ CARB further stresses that admission into PERP is entirely
voluntary, so any costs associated with compliance of the program are
voluntarily incurred by those that choose to participate in the
program.\42\
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\40\ CARB, Request for Authorization at 16-17.
\41\ Id. at 16.
\42\ Id.
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CARB staff estimate ``that the total economic impact of the
proposed amendments to the Statewide PERP Regulation to affect private
businesses and public agencies is $6.6 million over its lifetime ($6.1
million for private businesses and $0.5 million for public agencies).''
\43\ The economic impact comes from fees for non-compliant engines.
However, if affected parties were instead required to purchase new
engines that meet current emission standards, the overall cost to those
parties would be around $250 million.\44\ The PERP thus results in an
estimated savings of $243.4 million.\45\
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\43\ CARB Staff Report: Initial Statement of Reasons for the
Proposed Amendments to the Statewide Portable Equipment Registration
Program Regulation and Airborne Toxic Control Measure for Diesel
Particulate Matter From Portable Engines at vi.-vii.
\44\ Id. at vii.
\45\ Id.
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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.
ii. 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.\46\ CARB
presents that the PERP requirements raise no issue regarding test
procedure consistency because the tests procedures incorporated into
the program are existing EPA and CARB test procedures.\47\ Either
agency's test procedures may be used to demonstrate compliance with the
program.\48\
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\46\ See, e.g., 43 FR 32182 (July 25, 1978).
\47\ CARB, Request for Authorization at 17.
\48\ Id.
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EPA received no comments suggesting that CARB's PERP poses 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. Full Authorization Determination for California's PERP Regulations
After a review of the information submitted by CARB, EPA finds that
those opposing California's request have not met the burden of
demonstrating that authorization for California's PERP 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 PERP should be
granted.
B. Within-the Scope Confirmation
In our February 9, 2011 Federal Register notice, EPA sought comment
on a range of issues, including those applicable to a within-the-scope
analysis as well as those applicable to a full waiver analysis. EPA
received no public comment in response to our request, including no
public comments on whether EPA should consider CARB's request according
to a within-the-scope analysis of full authorization analysis.
Therefore, we have evaluated CARB's request by application of our
traditional analysis of authorizations. At the same time, CARB believes
it meets the requirements for a within-the-scope confirmation to the
extent that EPA has already authorized the numeric emission standards
referenced in its PERP program. According to our analysis, as discussed
below, we can confirm that the PERP program is within the scope of
previous authorizations issued on September 21, 1995 (60 FR 48981), May
23, 2006 (71 FR 29621), and April 4, 2012 (75 FR 8056).
If California amends regulations that were previously granted an
authorization, EPA can confirm that the amended regulations are within
the scope of the previously granted authorization. Such within-the-
scope amendments are permissible without a full authorization review if
three conditions are met. First, the amended regulations must not
undermine California's determination that its standards, in the
aggregate, are as protective of public health and welfare as applicable
federal standards. Second, the amended regulations must not affect
consistency with section 209 of the Act. Third, the amended regulations
must not raise any ``new issues'' affecting EPA's prior authorizations.
EPA issued an authorization of CARB's diesel emission standards for
1996 and later new diesel cycle engines 175 horsepower and greater on
September 21, 1995 (60 FR 48981). EPA also issued authorizations
applicable to CARB's large off-road spark-ignition engine standards on
May 23, 2006 (71 FR 29621) and April 4, 2012 (75 FR 8056). As discussed
above, the first two within-the-scope criteria regarding protectiveness
and consistency with section 209 of the Act have been established for
the PERP program. Additionally, because registration to such standards
does not appear to present a new issue, and no commenter presented
otherwise, EPA can confirm that CARB's PERP program is within the scope
of the above-noted EPA authorizations, to the extent that the PERP
requirements are reliant upon the emission standards at the heart of
the above-noted authorizations.\49\ To the extent that CARB's PERP
program allows registration of engines and equipment to emission
standards that are not the subject of a previous EPA authorization, EPA
cannot confirm they are within the scope as consideration of those
provisions present ``new issues'' that have not previously been the
subject of an authorization.
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\49\ To the extent that any provision in CARB's PERP program,
which is herein confirmed as within the scope, is later construed as
not within-the-scope of EPA's prior authorizations, then a full
authorization is appropriate and granted based upon the full
authorization evaluation as discussed above.
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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 PERP amendments, and
CARB's submissions, EPA is granting an authorization to California for
its PERP amendments. To the extent that the PERP program allows
registration of equipment for which EPA has already issued
authorizations to California, EPA is confirming that those
[[Page 72856]]
provisions are within the scope of its previous authorizations.
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 February 4, 2013. Judicial review of this
final action may not be obtained in subsequent enforcement proceedings,
pursuant to section 307(b)(2) of the Act.
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: November 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-29513 Filed 12-5-12; 8:45 am]
BILLING CODE 6560-50-P
