California State Nonroad Engine Pollution Control Standards; Large Spark-Ignition (LSI) Engines; New Emission Standards and In-Use Fleet Requirements; Notice of Decision, 76468-76473 [2015-31049]

Download as PDF mstockstill on DSK4VPTVN1PROD with NOTICES 76468 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices collection as described below. This is a proposed extension of the ICR, which is currently approved through March 31, 2016. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. DATES: Comments must be submitted on or before February 8, 2016. ADDRESSES: Submit your comments, referencing by Docket ID No. EPA–HQ– RCRA–2015–0731, online using www.regulations.gov (our preferred method), by email to rcra-docket@ epa.gov, or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460. EPA’s policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. FOR FURTHER INFORMATION CONTACT: Josh Smeraldi, Office of Resource Conservation and Recovery (mail code 5304P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 703–308–0441; fax number: 703–308–0514; email address: Smeraldi.josh@epa.gov. SUPPLEMENTARY INFORMATION: Supporting documents which explain in detail the information the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone number for the Docket Center is 202–566–1744. For additional information about EPA’s public docket, visit https://www.epa.gov/ dockets. Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden VerDate Sep<11>2014 18:21 Dec 08, 2015 Jkt 238001 of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. The EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, the EPA will issue another Federal Register notice to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. Abstract: The U.S. Environmental Protection Agency (EPA) has finalized an alternative set of generator requirements applicable to laboratories owned by eligible academic entities, as defined in the final rule. The rule, which establishes a Subpart K within 40 CFR Part 262, provides a flexible and protective set of regulations that address the specific nature of hazardous waste generation and accumulation in laboratories owned by colleges and universities, and teaching hospitals and non-profit research institutes that are either owned by or formally affiliated with a college or university. In addition, the rule allows colleges and universities and these other eligible academic entities formally affiliated with a college or university the discretion to determine the most appropriate and effective method of compliance with these requirements by allowing them the choice of managing their hazardous wastes in accordance with the alternative regulations as set forth in Subpart K or remaining subject to the existing generator regulations. Form Numbers: None. Respondents/affected entities: Entities potentially affected by this action are private sector as well as State, Local, or Tribal Governments. Respondent’s obligation to respond: required to obtain or retain a benefit (Sections 2002, 3001, 3002, 3004 of RCRA). Estimated number of respondents: 99. Frequency of response: On occasion. Total estimated burden: 27,719 hours Burden is defined at 5 CFR 1320.03(b). Total estimated cost: Estimated Total Annual Cost: $1,322,414, which includes $1,218,693 annualized labor costs and $103,720 annualized capital or O&M costs. Changes in Estimates: The burden hours are likely to stay substantially the same. PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 Dated: November 23, 2015. Barnes Johnson, Director, Office of Resource Conservation and Recovery. [FR Doc. 2015–31045 Filed 12–8–15; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [EPA–HQ–OAR–2014–0533; FRL–9939–91– OAR] 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: The Environmental Protection Agency (EPA) is granting the California Air Resources Board’s (CARB’s) request for authorization of California’s 2008 amendments to its new large sparkignition nonroad engines regulation (2008 LSI Amendments). EPA is also confirming that CARB’s 2010 amendments to its in-use fleet average emission requirements (2010 LSI Fleet Amendments) are within the scope of EPA’s prior authorization. This decision is issued under the authority of the Clean Air Act (‘‘CAA’’ or ‘‘Act’’). DATES: Petitions for review must be filed by February 8, 2016. ADDRESSES: EPA has established a docket for this action under Docket ID EPA–HQ–OAR–2014–0533. 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 SUMMARY: E:\FR\FM\09DEN1.SGM 09DEN1 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 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–2014–0533 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: David Dickinson, Attorney-Advisor, Transportation Climate Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: (202) 343–9256. Fax: (202) 343–2800. Email: dickinson.david@epa.gov. SUPPLEMENTARY INFORMATION: I. Background mstockstill on DSK4VPTVN1PROD with NOTICES A. California’s LSI Regulations CARB promulgated its first LSI regulations in 1999, applicable to new LSI engines (1999 LSI regulations).1 The 1999 LSI regulations established exhaust emission standards and associated test procedures for LSI engines based upon engine displacement. The exhaust emission standards applicable to 2002 and subsequent model years (MYs) with displacements up to one liter were identical to the emission standards applicable to California small off-road engines (SORE) with engines greater than or equal to 225 cubic centimeters. CARB subsequently adopted more stringent exhaust emission standards for engines greater than 225 cubic centimeters.2 CARB adopted is initial off-road LSI fleet operator regulations on May 25, 2006.3 The fleet operator regulations are designed to address the hydrocarbon and nitrogen oxide emissions from the existing LSI engines operating in California and require fleets 1 EPA granted an authorization for these LSI regulations at 71 FR 29623 (May 15, 2006). 2 EPA granted an authorization for these LSI regulations at 71 FR 75536 (December 15, 2006). 3 The term ‘‘off-road’’ is used interchangeably with ‘‘nonroad’’ within this decision. VerDate Sep<11>2014 18:21 Dec 08, 2015 Jkt 238001 to meet certain fleet average emission level (FAEL) standards.4 By letter dated June 2, 2014, CARB submitted to EPA its request pursuant to section 209(e) of the CAA, regarding its 2008 LSI Amendments which create two new subcategories of LSI engines: LSI engines with an engine displacement less than or equal to 825 cubic centimeters (cc) (LSI ≤ 825 cc), and LSI engines with an engine displacement greater than 825 cc but less than or equal to one liter (825cc ≤1.0 L). The 2008 LSI Amendments establish exhaust emission standards for new 2011 and subsequent model year (MY) LSI engines in each of these new subcategories and additionally establish more stringent exhaust emission standards for 2015 and subsequent MY LSI engines with engine displacements 825cc ≤1.0 L. The 2008 LSI Amendments also establish evaporative emission standards for 2011 and subsequent MY LSI engines within the two new subcategories, and the amendments provide manufacturers of LSI engines used in vehicles that are similar to off-highway recreational vehicles (OHRVs) the option to use the OHRV test and certification procedures.5 CARB also submitted its 2010 LSI Fleet Amendments for confirmation from EPA that such amendments are within the scope of a previous EPA authorization. These amendments are designed to enhance the compliance flexibility provisions of the existing LSI Fleet regulation. They amend the existing limited hours of use (LHU) provisions to exempt equipment that operates no more than 200 hours per year subsequent to January 1, 2011 from the fleet average emission standard requirements of the LSI Fleet regulation. The 2010 LSI Fleet Amendments also extend the existing compliance extension period that is available if CARB has not verified a retrofit emission control system, or if one is not commercially available, from one year to two years and allow for an additional two year extension if a retrofit emission control system remains unavailable. The 2010 LSI Fleet Amendments also include additional provisions that largely clarify existing regulatory provisions or provide additional compliance flexibility (e.g. revising the definitions of ‘‘baseline inventory,’’ ‘‘operator,’’ and ‘‘airport ground support equipment’’; providing an exclusion for 4 EPA granted an authorization for these LSI regulations at 77 FR 20388 (April 12, 2012). 5 CARB adopted the 2008 LSI Amendments on November 21, 2008 (see Resolution 08–42 at EPA– HQ–OAR–2014–0533–0008). PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 76469 certain inoperable equipment from the FAEL requirements; and providing a clarification of the record keeping requirements and of the FAEL definition).6 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 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.7 EPA later revised these regulations in 1997.8 As stated in the preamble to the 1994 rule, EPA has historically interpreted the section 209(e)(2)(iii) 6 CARB adopted the 2010 LSI Fleet Amendments on December 17, 2010 (see Resolution 10–48 at EPA–HQ–OAR–2014–0533–0024). 7 59 FR 36969 (July 20, 1994). 8 See 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. E:\FR\FM\09DEN1.SGM 09DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 76470 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices ‘‘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).9 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. In light of the similar language of sections 209(b) and 209(e)(2)(A), EPA has reviewed California’s requests for authorization of nonroad vehicle or engine standards under section 209(e)(2)(A) using the same principles that it has historically applied in reviewing requests for waivers of preemption for new motor vehicle or new motor vehicle engine standards under section 209(b).10 These principles include, among other things, that EPA should limit its inquiry to the three specific authorization criteria identified in section 209(e)(2)(A),11 and that EPA should give substantial deference to the policy judgments California has made in adopting its regulations. In previous waiver decisions, EPA has stated that Congress intended EPA’s review of California’s decision-making be narrow. 9 See 59 FR 36969 (July 20, 1994). Engine Manufacturers Association v. EPA, 88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was within the bounds of permissible construction in analogizing § 209(e) on nonroad sources to § 209(a) on motor vehicles.’’ 11 See supra note 12, at 36983. 10 See VerDate Sep<11>2014 18:21 Dec 08, 2015 Jkt 238001 EPA has rejected arguments that are not specified in the statute as grounds for denying a waiver: The law makes it clear that the waiver requests cannot be denied unless the specific findings designated in the statute can properly be made. The issue of whether a proposed California requirement is likely to result in only marginal improvement in California air quality not commensurate with its costs or is otherwise an arguably unwise exercise of regulatory power is not legally pertinent to my decision under section 209, so long as the California requirement is consistent with section 202(a) and is more stringent than applicable Federal requirements in the sense that it may result in some further reduction in air pollution in California.12 This principle of narrow EPA review has been upheld by the U.S. Court of Appeals for the District of Columbia Circuit.13 Thus, EPA’s consideration of all the evidence submitted concerning an authorization decision is circumscribed by its relevance to those questions that may be considered under section 209(e)(2)(A). C. Within-the-Scope Determinations If California amends regulations that were previously authorized by EPA, California may ask EPA to determine that the amendments are within the scope of the earlier authorization. A within-the-scope determination for such amendments is permissible without a full authorization review if three conditions are met. First, the amended regulations must not undermine California’s previous 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, following the same criteria discussed above in the context of full authorizations. Third, the amended regulations must not raise any ‘‘new issues’’ affecting EPA’s prior authorizations.14 12 ‘‘Waiver of Application of Clean Air Act to California State Standards,’’ 36 FR 17458 (August 31, 1971). Note that the more stringent standard expressed here, in 1971, was superseded by the 1977 amendments to section 209, which established that California must determine that its standards are, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. In the 1990 amendments to section 209, Congress established section 209(e) and similar language in section 209(e)(1)(i) pertaining to California’s nonroad emission standards which California must determine to be, in the aggregate, at least as protective of public health and welfare as applicable federal standards. 13 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 14 See ‘‘California State Motor Vehicle Pollution Control Standards; Amendments Within the Scope of Previous Waiver of Federal Preemption,’’ 46 FR 36742 (July 15, 1981). PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 D. Deference to California In previous waiver decisions, EPA has recognized that the intent of Congress in creating a limited review based on the section 209(b)(1) criteria was to ensure that the federal government did not second-guess state policy choices. This has led EPA to state: It is worth noting. . . I would feel constrained to approve a California approach to the problem which I might also feel unable to adopt at the federal level in my own capacity as a regulator. The whole approach of the Clean Air Act is to force the development of new types of emission control technology where that is needed by compelling the industry to ‘‘catch up’’ to some degree with newly promulgated standards. Such an approach . . . may be attended with costs, in the shape of reduced product offering, or price or fuel economy penalties, and by risks that a wider number of vehicle classes may not be able to complete their development work in time. Since a balancing of these risks and costs against the potential benefits from reduced emissions is a central policy decision for any regulatory agency under the statutory scheme outlined above, I believe I am required to give very substantial deference to California’s judgments on this score.15 EPA has stated that the text, structure, and history of the California waiver provision clearly indicate both a congressional intent and appropriate EPA practice of leaving the decision on ‘‘ambiguous and controversial matters of public policy’’ to California’s judgment.16 The House Committee Report explained as part of the 1977 amendments to the Clean Air Act, where Congress had the opportunity to restrict the waiver provision, it elected instead to explain California’s flexibility to adopt a complete program of motor vehicle emission controls. The amendment is intended to ratify and strengthen the California waiver provision and to affirm the underlying intent of that provision, i.e., to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.17 E. Burden and Standard of Proof As the U.S. Court of Appeals for the D.C. Circuit has made clear in MEMA I, opponents of a waiver request by California bear the burden of showing that the statutory criteria for a denial of the request have been met: 15 40 FR 23103–23104 (May 28, 1975); see also LEV I Decision Document at 64 (58 FR 4166 (January 13, 1993)). 16 40 FR 23104; 58 FR 4166. 17 MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 294, 95 Cong., 1st Sess. 301–02 (1977). E:\FR\FM\09DEN1.SGM 09DEN1 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices [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.18 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.’ ’’ 19 Therefore, the Administrator’s burden is to act ‘‘reasonably.’’ 20 With regard to the standard of proof, the court in MEMA I explained that the Administrator’s role in a section 209 proceeding is to: mstockstill on DSK4VPTVN1PROD with NOTICES [. . .] 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.21 In that decision, the court considered the standards of proof under section 209 for the two findings related to granting a waiver for an ‘‘accompanying enforcement procedure.’’ Those findings involve: (1) Whether the enforcement procedures impact California’s prior protectiveness determination for the associated standards, and (2) whether the procedures are consistent with section 202(a). The principles set forth by the court, however, are similarly applicable to an EPA review of a request for a waiver of preemption for a standard. 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.’’ 22 With regard to the protectiveness finding, the court upheld the Administrator’s position that, to deny a 18 MEMA I, supra note 19, at 1121. at 1126. 20 Id. at 1126. 21 Id. at 1122. 22 Id. 19 Id. VerDate Sep<11>2014 18:21 Dec 08, 2015 Jkt 238001 waiver, there must be ‘‘clear and compelling evidence’’ to show that proposed enforcement procedures undermine the protectiveness of California’s standards.23 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.24 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 a waiver request for 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.’’ 25 F. EPA’s Administrative Process in Consideration of California’s LSI Regulations On November 24, 2014, EPA published a Federal Register notice announcing its receipt of California’s authorization request. In that notice, EPA invited public comment on the 2008 LSI Amendments and the 2010 LSI Fleet Amendments and provided an opportunity to request a public hearing.26 EPA requested comment on the amendments, as follows: (1) Should California’s amendments be considered under the within-the-scope analysis, or should they be considered under the 23 Id. 24 Id. 25 See, e.g., ‘‘California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103. 26 See ‘‘California State Nonroad Engine Pollution Control Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and Vehicles Regulations; Request for Within-the-Scope and Full Authorization; Opportunity for Public Hearing and Comment,’’ 79 FR 27801 (November 24, 2014). PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 76471 full authorization criteria?; (2) If those amendments should be considered as a within-the-scope request, do they meet the criteria for EPA to grant a withinthe-scope confirmation?; and (3) If the amendments should not be considered under the within-the-scope analysis, or in the event that EPA determines they are not within the scope of the previous authorization, do they meet the criteria for making a full authorization determination? EPA received no written comments. Additionally, EPA received no requests for a public hearing. Consequently, EPA did not hold a public hearing. II. Discussion California requested that the Administrator grant a full authorization for its 2008 LSI Amendments and that such amendments meet the three authorization criteria found in section 209(e)(2)(A) of the CAA. We received no adverse comment or evidence suggesting that these amendments fail to meet any of the full authorization criteria. California also requested that the Administrator confirm that the 2010 LSI Fleet Amendments detailed above are within the scope of a previously granted full authorization. California asserted that the 2010 LSI Fleet Amendments met all three within-the-scope criteria, i.e. that the amendments: (1) Do not undermine the original protectiveness determination underlying California’s regulations; (2) do not affect the consistency of the regulations with section 202(a); and (3) do not raise any new issues affecting the prior authorizations. We received no adverse comments or evidence suggesting a within-the-scope analysis is inappropriate, or that the 2010 LSI Amendments fail to meet any of the three criteria for within-the-scope confirmation. Our analysis of the 2008 LSI Amendments in the context of the full authorization criteria, and our analysis of the 2010 LSI Fleet Amendments in the context of the within-the-scope criteria, is set forth below. A. California’s Protectiveness Determination Section 209(e)(2)(A)(i) of the CAA instructs that EPA cannot grant a full 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 08–42, finding that California’s 2008 LSI E:\FR\FM\09DEN1.SGM 09DEN1 76472 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices Amendments will not cause the California emission standards, in the aggregate, to be less protective of public health and welfare than applicable federal standards.27 CARB presents that California’s exhaust emission standards applicable to LSI ≤ 825 cc and 825 cc ≤ LSI≤ 1.0 L are at least as protective of public health and welfare as applicable federal exhaust emission standards. Similarly CARB’s Executive Officer found that California’s evaporative emission requirements applicable to 2011 and subsequent MY engines less than or equal to one liter are, in the aggregate, at least as protective as applicable federal standards.28 EPA did not receive any comments challenging California’s protectiveness determination. Therefore, based on the record before us, EPA finds no evidence in the record that demonstrates California was arbitrary and capricious in its determination that its 2008 LSI Amendments are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. Similarly, CARB’s 2010 LSI Fleet Amendments must not undermine California’s previous determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards. In adopting the 2010 LSI Fleet Amendments CARB made a protectiveness determination in Resolution 10–48, finding that California’s 2010 LSI Fleet Amendments do not undermine the Board’s previous determination that the California emission standards, other emission related requirements, and associated enforcement procedures are, in the aggregate, at least as protective of public health and welfare than applicable federal standards.29 EPA did not receive any comments challenging California’s determination that its 2010 LSI Fleet Amendments do not undermine California’s prior protectiveness determination. Therefore, mstockstill on DSK4VPTVN1PROD with NOTICES 27 ‘‘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. This Resolution also extends to CARB’s amendment requiring LSI engines used in vehicles similar to OHRVs to utilize OHRV test procedures. EPA–HQ– OAR–2014–0533–0008. 28 CARB Executive Order G–14–014, EPA–HQ– OAR–2014–0533–0033. 29 CARB Resolution 10–48, EP–HQ–OAR–2014– 0533–0024. VerDate Sep<11>2014 18:21 Dec 08, 2015 Jkt 238001 based on the record before us, EPA finds no evidence in the record that demonstrates California was arbitrary and capricious in its determination that its 2010 LSI Fleet Amendments do not undermine California’s prior protectiveness determination. B. Need for California Standards To Meet Compelling and Extraordinary Conditions Section 209(e)(2)(A)(ii) of the Act instructs that EPA cannot grant a full 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.30 In its Resolution 08–42, CARB affirmed its longstanding position that California continues to need its own nonroad 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.’’31 Furthermore, no commenter has presented any argument or evidence to suggest that California no longer needs a separate nonroad engine emissions program to address compelling and extraordinary conditions in California. Therefore, EPA has determined that we cannot deny California an authorization for its 2008 LSI Amendments under section 209(e)(2)(A)(ii). EPA’s withinthe-scope determinations, applicable in this instance to CARB’s request for its 2010 LSI Fleet Amendments, does not require an EPA analysis under section 209(e)(2)(A)(ii). C. Consistency With Section 209 of the Clean Air Act Section 209(e)(2)(A)(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). Similarly, EPA’s analysis for within-the-scope determinations includes an assessment of whether the 30 See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889–18890 (May 3, 1984). 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). PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 amendments are consistent with section 209. 1. Consistency With Section 209(a) To be consistent with section 209(a) of the Clean Air Act, California’s 2008 LSI Amendments and 2010 LSI Fleet Amendments 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.32 No commenter presented otherwise. Therefore, EPA cannot deny California’s request on the basis that California’s 2008 LSI Amendments and 2010 LSI Fleet Amendments 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 2008 LSI Amendments and 2010 LSI Fleet Amendments must not affect new farming or construction vehicles or engines that are below 175 horsepower, or new locomotives or their engines. CARB notes that its LSI regulations do not affect such permanently preempted vehicles or engines.33 Therefore, EPA cannot deny California’s request on the basis that California’s LSI amendments 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 impose requirements inconsistent with the federal test procedures.34 32 CARB, Request for Authorization at 16, and 23. EPA–HQ–OAR–2014–0533–0003. 33 Id. 34 MEMA I, 627, F.2d at 1126. E:\FR\FM\09DEN1.SGM 09DEN1 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices a. Technological Feasibility Congress has stated that the consistency requirement of section 202(a) relates to technological feasibility.35 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.36 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.37 Subsequently, Congress has stated that, generally, EPA’s construction of the waiver provision has been consistent with congressional intent.38 CARB presents that the technology required to comply with its LSI regulations is feasible, and that it has provided sufficient lead-time, giving consideration to the cost of compliance.39 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 full authorization (for the 2008 LSI Amendments) based on technological infeasibility. Also, EPA cannot deny California’s within-the-scope request for the 2010 LSI Fleet Amendments based on technological infeasibility. mstockstill on DSK4VPTVN1PROD with NOTICES 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 35 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 (1977). 36 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976). 37 41 FR 44209 (October 7, 1976). 38 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 (1977). 39 CARB, Request for Authorization at 17–21, 23. VerDate Sep<11>2014 18:21 Dec 08, 2015 Jkt 238001 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.40 CARB presents that there is no issue regarding test procedure inconsistency for new LSI engines as California’s test procedures were not modified since EPA’s prior waiver.41 CARB also presents that its 2010 LSI Fleet Amendments do not include any test procedures and thus do not create an inconsistency issue. 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 the criterion of consistency with section 209. 4. New Issues In the context of the 2010 LSI Fleet Amendments, CARB states that it is not aware of any new issues affecting the previously granted authorization for CARB’s LSI Fleet regulations. ‘‘The Amendments do not create new, more stringent emission standards or requirements, nor force any change in technology to warrant revisiting conclusions in granting the existing authorization.’’42 EPA received no comment on this issue. We therefore do not find any new issues raised by the 2010 LSI Fleet Amendments. E. Authorization Determinations for California’s LSI Amendments After a review of the information submitted by CARB, EPA finds no basis for denying CARB’s full authorization request for the 2008 LSI Fleet Amendments and EPA finds no basis for denying CARB’s request that EPA confirm the 2010 LSI Fleet Amendments are within the scope of a prior EPA full authorization. For these reasons, EPA finds that a full authorization for California’s 2008 LSI Amendments should be granted and a within-thescope determination should be granted for California’s 2010 LSI Fleet Amendments. III. Decision The Administrator has delegated the authority to grant California section 209(e) authorizations to the Assistant Administrator for Air and Radiation. 40 See, e.g., 43 FR 32182 (July 25, 1978). FR 29623 (May 23, 2006). See also CARB, Request for Authorization at 21. 42 CARB, Request for Authorization at 23. 41 79 PO 00000 Frm 00031 Fmt 4703 Sfmt 9990 76473 After evaluating California’s LSI amendments, CARB’s submissions, and the lack of any comment or adverse comment, EPA is granting a full authorization to California for its 2008 LSI Amendments and a within-thescope determination for its 2010 LSI Fleet Amendments. This decision will affect persons in California and those manufacturers and/ or owners/operators nationwide who must comply with California’s requirements. In addition, because other states may adopt California’s standards for which a section 209(e)(2)(A) authorization has been granted if certain criteria are met, this decision would also affect those states and those persons in such states. See CAA section 209(e)(2)(B). For these reasons, EPA determines and finds that this is a final action of national applicability, and also a final action of nationwide scope or effect 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 8, 2016. 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: December 1, 2015. Janet G. McCabe, Acting Assistant Administrator, Office of Air and Radiation. [FR Doc. 2015–31049 Filed 12–8–15; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\09DEN1.SGM 09DEN1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 236 (Wednesday, December 9, 2015)]
[Notices]
[Pages 76468-76473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31049]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0533; FRL-9939-91-OAR]

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: The Environmental Protection Agency (EPA) is granting the
California Air Resources Board's (CARB's) request for authorization of
California's 2008 amendments to its new large spark-ignition nonroad
engines regulation (2008 LSI Amendments). EPA is also confirming that
CARB's 2010 amendments to its in-use fleet average emission
requirements (2010 LSI Fleet Amendments) are within the scope of EPA's
prior authorization. This decision is issued under the authority of the
Clean Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by February 8, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0533. 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

[[Page 76469]]

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-2014-0533 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: David Dickinson, Attorney-Advisor,
Transportation Climate Division, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue
(6405J), NW., Washington, DC 20460. Telephone: (202) 343-9256. Fax:
(202) 343-2800. Email: dickinson.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. California's LSI Regulations

CARB promulgated its first LSI regulations in 1999, applicable to
new LSI engines (1999 LSI regulations).\1\ The 1999 LSI regulations
established exhaust emission standards and associated test procedures
for LSI engines based upon engine displacement. The exhaust emission
standards applicable to 2002 and subsequent model years (MYs) with
displacements up to one liter were identical to the emission standards
applicable to California small off-road engines (SORE) with engines
greater than or equal to 225 cubic centimeters. CARB subsequently
adopted more stringent exhaust emission standards for engines greater
than 225 cubic centimeters.\2\ CARB adopted is initial off-road LSI
fleet operator regulations on May 25, 2006.\3\ The fleet operator
regulations are designed to address the hydrocarbon and nitrogen oxide
emissions from the existing LSI engines operating in California and
require fleets to meet certain fleet average emission level (FAEL)
standards.\4\
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\1\ EPA granted an authorization for these LSI regulations at 71
FR 29623 (May 15, 2006).
\2\ EPA granted an authorization for these LSI regulations at 71
FR 75536 (December 15, 2006).
\3\ The term ``off-road'' is used interchangeably with
``nonroad'' within this decision.
\4\ EPA granted an authorization for these LSI regulations at 77
FR 20388 (April 12, 2012).
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By letter dated June 2, 2014, CARB submitted to EPA its request
pursuant to section 209(e) of the CAA, regarding its 2008 LSI
Amendments which create two new subcategories of LSI engines: LSI
engines with an engine displacement less than or equal to 825 cubic
centimeters (cc) (LSI <= 825 cc), and LSI engines with an engine
displacement greater than 825 cc but less than or equal to one liter
(825cc <=1.0 L). The 2008 LSI Amendments establish exhaust emission
standards for new 2011 and subsequent model year (MY) LSI engines in
each of these new subcategories and additionally establish more
stringent exhaust emission standards for 2015 and subsequent MY LSI
engines with engine displacements 825cc <=1.0 L. The 2008 LSI
Amendments also establish evaporative emission standards for 2011 and
subsequent MY LSI engines within the two new subcategories, and the
amendments provide manufacturers of LSI engines used in vehicles that
are similar to off-highway recreational vehicles (OHRVs) the option to
use the OHRV test and certification procedures.\5\
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\5\ CARB adopted the 2008 LSI Amendments on November 21, 2008
(see Resolution 08-42 at EPA-HQ-OAR-2014-0533-0008).
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CARB also submitted its 2010 LSI Fleet Amendments for confirmation
from EPA that such amendments are within the scope of a previous EPA
authorization. These amendments are designed to enhance the compliance
flexibility provisions of the existing LSI Fleet regulation. They amend
the existing limited hours of use (LHU) provisions to exempt equipment
that operates no more than 200 hours per year subsequent to January 1,
2011 from the fleet average emission standard requirements of the LSI
Fleet regulation. The 2010 LSI Fleet Amendments also extend the
existing compliance extension period that is available if CARB has not
verified a retrofit emission control system, or if one is not
commercially available, from one year to two years and allow for an
additional two year extension if a retrofit emission control system
remains unavailable. The 2010 LSI Fleet Amendments also include
additional provisions that largely clarify existing regulatory
provisions or provide additional compliance flexibility (e.g. revising
the definitions of ``baseline inventory,'' ``operator,'' and ``airport
ground support equipment''; providing an exclusion for certain
inoperable equipment from the FAEL requirements; and providing a
clarification of the record keeping requirements and of the FAEL
definition).\6\
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\6\ CARB adopted the 2010 LSI Fleet Amendments on December 17,
2010 (see Resolution 10-48 at EPA-HQ-OAR-2014-0533-0024).
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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 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.\7\ EPA later revised
these regulations in 1997.\8\ As stated in the preamble to the 1994
rule, EPA has historically interpreted the section 209(e)(2)(iii)

[[Page 76470]]

``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).\9\
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\7\ 59 FR 36969 (July 20, 1994).
\8\ 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.
\9\ See 59 FR 36969 (July 20, 1994).
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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.
In light of the similar language of sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).\10\ These principles
include, among other things, that EPA should limit its inquiry to the
three specific authorization criteria identified in section
209(e)(2)(A),\11\ and that EPA should give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended EPA's
review of California's decision-making be narrow. EPA has rejected
arguments that are not specified in the statute as grounds for denying
a waiver:
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\10\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075,
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of
permissible construction in analogizing Sec. 209(e) on nonroad
sources to Sec. 209(a) on motor vehicles.''
\11\ See supra note 12, at 36983.

The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in California air
quality not commensurate with its costs or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\12\
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\12\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (August 31, 1971). Note that the more
stringent standard expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established that California
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. In the 1990 amendments to section 209, Congress
established section 209(e) and similar language in section
209(e)(1)(i) pertaining to California's nonroad emission standards
which California must determine to be, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.

This principle of narrow EPA review has been upheld by the U.S. Court
of Appeals for the District of Columbia Circuit.\13\ Thus, EPA's
consideration of all the evidence submitted concerning an authorization
decision is circumscribed by its relevance to those questions that may
be considered under section 209(e)(2)(A).
---------------------------------------------------------------------------

\13\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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C. Within-the-Scope Determinations

If California amends regulations that were previously authorized by
EPA, California may ask EPA to determine that the amendments are within
the scope of the earlier authorization. A within-the-scope
determination for such amendments is permissible without a full
authorization review if three conditions are met. First, the amended
regulations must not undermine California's previous 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,
following the same criteria discussed above in the context of full
authorizations. Third, the amended regulations must not raise any ``new
issues'' affecting EPA's prior authorizations.\14\
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\14\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
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D. Deference to California

In previous waiver decisions, EPA has recognized that the intent of
Congress in creating a limited review based on the section 209(b)(1)
criteria was to ensure that the federal government did not second-guess
state policy choices. This has led EPA to state:

It is worth noting. . . I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator. The
whole approach of the Clean Air Act is to force the development of
new types of emission control technology where that is needed by
compelling the industry to ``catch up'' to some degree with newly
promulgated standards. Such an approach . . . may be attended with
costs, in the shape of reduced product offering, or price or fuel
economy penalties, and by risks that a wider number of vehicle
classes may not be able to complete their development work in time.
Since a balancing of these risks and costs against the potential
benefits from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.\15\
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\15\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision
Document at 64 (58 FR 4166 (January 13, 1993)).

EPA has stated that the text, structure, and history of the
California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\16\
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\16\ 40 FR 23104; 58 FR 4166.
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The House Committee Report explained as part of the 1977 amendments
to the Clean Air Act, where Congress had the opportunity to restrict
the waiver provision, it elected instead to explain California's
flexibility to adopt a complete program of motor vehicle emission
controls. The amendment is intended to ratify and strengthen the
California waiver provision and to affirm the underlying intent of that
provision, i.e., to afford California the broadest possible discretion
in selecting the best means to protect the health of its citizens and
the public welfare.\17\
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\17\ MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 294, 95
Cong., 1st Sess. 301-02 (1977).
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E. Burden and Standard of Proof

As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a waiver request by California bear the burden of
showing that the statutory criteria for a denial of the request have
been met:

[[Page 76471]]

[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.\18\
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\18\ MEMA I, supra note 19, 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.' '' \19\ Therefore, the
Administrator's burden is to act ``reasonably.'' \20\
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\19\ Id. at 1126.
\20\ Id. at 1126.
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With regard to the standard of proof, the court in MEMA I explained
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.\21\
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\21\ Id. at 1122.

In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court, however, are similarly applicable to
an EPA review of a request for a waiver of preemption for a standard.
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.'' \22\
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\22\ Id.
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With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\23\ 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.\24\
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\23\ Id.
\24\ 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 a waiver request for 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.''
\25\
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\25\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
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F. EPA's Administrative Process in Consideration of California's LSI
Regulations

On November 24, 2014, EPA published a Federal Register notice
announcing its receipt of California's authorization request. In that
notice, EPA invited public comment on the 2008 LSI Amendments and the
2010 LSI Fleet Amendments and provided an opportunity to request a
public hearing.\26\
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\26\ See ``California State Nonroad Engine Pollution Control
Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road
Compression-Ignition Regulations; Exhaust Emission Certification
Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and
Vehicles Regulations; Request for Within-the-Scope and Full
Authorization; Opportunity for Public Hearing and Comment,'' 79 FR
27801 (November 24, 2014).
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EPA requested comment on the amendments, as follows: (1) Should
California's amendments be considered under the within-the-scope
analysis, or should they be considered under the full authorization
criteria?; (2) If those amendments should be considered as a within-
the-scope request, do they meet the criteria for EPA to grant a within-
the-scope confirmation?; and (3) If the amendments should not be
considered under the within-the-scope analysis, or in the event that
EPA determines they are not within the scope of the previous
authorization, do they meet the criteria for making a full
authorization determination?
EPA received no written comments. Additionally, EPA received no
requests for a public hearing. Consequently, EPA did not hold a public
hearing.

II. Discussion

California requested that the Administrator grant a full
authorization for its 2008 LSI Amendments and that such amendments meet
the three authorization criteria found in section 209(e)(2)(A) of the
CAA. We received no adverse comment or evidence suggesting that these
amendments fail to meet any of the full authorization criteria.
California also requested that the Administrator confirm that the
2010 LSI Fleet Amendments detailed above are within the scope of a
previously granted full authorization. California asserted that the
2010 LSI Fleet Amendments met all three within-the-scope criteria, i.e.
that the amendments: (1) Do not undermine the original protectiveness
determination underlying California's regulations; (2) do not affect
the consistency of the regulations with section 202(a); and (3) do not
raise any new issues affecting the prior authorizations. We received no
adverse comments or evidence suggesting a within-the-scope analysis is
inappropriate, or that the 2010 LSI Amendments fail to meet any of the
three criteria for within-the-scope confirmation.
Our analysis of the 2008 LSI Amendments in the context of the full
authorization criteria, and our analysis of the 2010 LSI Fleet
Amendments in the context of the within-the-scope criteria, is set
forth below.

A. California's Protectiveness Determination

Section 209(e)(2)(A)(i) of the CAA instructs that EPA cannot grant
a full 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 08-42, finding that California's 2008 LSI

[[Page 76472]]

Amendments will not cause the California emission standards, in the
aggregate, to be less protective of public health and welfare than
applicable federal standards.\27\ CARB presents that California's
exhaust emission standards applicable to LSI <= 825 cc and 825 cc <=
LSI<= 1.0 L are at least as protective of public health and welfare as
applicable federal exhaust emission standards. Similarly CARB's
Executive Officer found that California's evaporative emission
requirements applicable to 2011 and subsequent MY engines less than or
equal to one liter are, in the aggregate, at least as protective as
applicable federal standards.\28\
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\27\ ``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. This Resolution also extends to CARB's amendment requiring
LSI engines used in vehicles similar to OHRVs to utilize OHRV test
procedures. EPA-HQ-OAR-2014-0533-0008.
\28\ CARB Executive Order G-14-014, EPA-HQ-OAR-2014-0533-0033.
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EPA did not receive any comments challenging California's
protectiveness determination. Therefore, based on the record before us,
EPA finds no evidence in the record that demonstrates California was
arbitrary and capricious in its determination that its 2008 LSI
Amendments are, in the aggregate, at least as protective of public
health and welfare as applicable federal standards.
Similarly, CARB's 2010 LSI Fleet Amendments must not undermine
California's previous determination that its standards, in the
aggregate, are as protective of public health and welfare as applicable
federal standards. In adopting the 2010 LSI Fleet Amendments CARB made
a protectiveness determination in Resolution 10-48, finding that
California's 2010 LSI Fleet Amendments do not undermine the Board's
previous determination that the California emission standards, other
emission related requirements, and associated enforcement procedures
are, in the aggregate, at least as protective of public health and
welfare than applicable federal standards.\29\
---------------------------------------------------------------------------

\29\ CARB Resolution 10-48, EP-HQ-OAR-2014-0533-0024.
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EPA did not receive any comments challenging California's
determination that its 2010 LSI Fleet Amendments do not undermine
California's prior protectiveness determination. Therefore, based on
the record before us, EPA finds no evidence in the record that
demonstrates California was arbitrary and capricious in its
determination that its 2010 LSI Fleet Amendments do not undermine
California's prior protectiveness determination.

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

Section 209(e)(2)(A)(ii) of the Act instructs that EPA cannot grant
a full 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.\30\ In its Resolution
08-42, CARB affirmed its longstanding position that California
continues to need its own nonroad 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.''\31\
Furthermore, no commenter has presented any argument or evidence to
suggest that California no longer needs a separate nonroad engine
emissions program to address compelling and extraordinary conditions in
California. Therefore, EPA has determined that we cannot deny
California an authorization for its 2008 LSI Amendments under section
209(e)(2)(A)(ii). EPA's within-the-scope determinations, applicable in
this instance to CARB's request for its 2010 LSI Fleet Amendments, does
not require an EPA analysis under section 209(e)(2)(A)(ii).
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\30\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
\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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C. Consistency With Section 209 of the Clean Air Act

Section 209(e)(2)(A)(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). Similarly, EPA's analysis for
within-the-scope determinations includes an assessment of whether the
amendments are consistent with section 209.
1. Consistency With Section 209(a)
To be consistent with section 209(a) of the Clean Air Act,
California's 2008 LSI Amendments and 2010 LSI Fleet Amendments 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.\32\ No commenter presented otherwise. Therefore, EPA
cannot deny California's request on the basis that California's 2008
LSI Amendments and 2010 LSI Fleet Amendments are not consistent with
section 209(a).
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\32\ CARB, Request for Authorization at 16, and 23. EPA-HQ-OAR-
2014-0533-0003.
---------------------------------------------------------------------------

2. Consistency With Section 209(e)(1)
To be consistent with section 209(e)(1) of the Clean Air Act,
California's 2008 LSI Amendments and 2010 LSI Fleet Amendments must not
affect new farming or construction vehicles or engines that are below
175 horsepower, or new locomotives or their engines. CARB notes that
its LSI regulations do not affect such permanently preempted vehicles
or engines.\33\ Therefore, EPA cannot deny California's request on the
basis that California's LSI amendments are not consistent with section
209(e)(1).
---------------------------------------------------------------------------

\33\ 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 impose requirements inconsistent with the
federal test procedures.\34\
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\34\ MEMA I, 627, F.2d at 1126.

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[[Page 76473]]

a. Technological Feasibility
Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\35\ 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.\36\ 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.\37\ Subsequently, Congress has stated that, generally,
EPA's construction of the waiver provision has been consistent with
congressional intent.\38\
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\35\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
\36\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
\37\ 41 FR 44209 (October 7, 1976).
\38\ 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 feasible, and that it has provided sufficient lead-time,
giving consideration to the cost of compliance.\39\
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\39\ CARB, Request for Authorization at 17-21, 23.
---------------------------------------------------------------------------

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 full authorization (for the
2008 LSI Amendments) based on technological infeasibility. Also, EPA
cannot deny California's within-the-scope request for the 2010 LSI
Fleet Amendments 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.\40\ CARB
presents that there is no issue regarding test procedure inconsistency
for new LSI engines as California's test procedures were not modified
since EPA's prior waiver.\41\ CARB also presents that its 2010 LSI
Fleet Amendments do not include any test procedures and thus do not
create an inconsistency issue.
---------------------------------------------------------------------------

\40\ See, e.g., 43 FR 32182 (July 25, 1978).
\41\ 79 FR 29623 (May 23, 2006). See also CARB, Request for
Authorization at 21.
---------------------------------------------------------------------------

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 the criterion of consistency with section 209.
4. New Issues
In the context of the 2010 LSI Fleet Amendments, CARB states that
it is not aware of any new issues affecting the previously granted
authorization for CARB's LSI Fleet regulations. ``The Amendments do not
create new, more stringent emission standards or requirements, nor
force any change in technology to warrant revisiting conclusions in
granting the existing authorization.''\42\ EPA received no comment on
this issue. We therefore do not find any new issues raised by the 2010
LSI Fleet Amendments.
---------------------------------------------------------------------------

\42\ CARB, Request for Authorization at 23.
---------------------------------------------------------------------------

E. Authorization Determinations for California's LSI Amendments

After a review of the information submitted by CARB, EPA finds no
basis for denying CARB's full authorization request for the 2008 LSI
Fleet Amendments and EPA finds no basis for denying CARB's request that
EPA confirm the 2010 LSI Fleet Amendments are within the scope of a
prior EPA full authorization. For these reasons, EPA finds that a full
authorization for California's 2008 LSI Amendments should be granted
and a within-the-scope determination should be granted for California's
2010 LSI Fleet Amendments.

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 amendments, CARB's
submissions, and the lack of any comment or adverse comment, EPA is
granting a full authorization to California for its 2008 LSI Amendments
and a within-the-scope determination for its 2010 LSI Fleet Amendments.
This decision will affect persons in California and those
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(e)(2)(A) authorization
has been granted if certain criteria are met, this decision would also
affect those states and those persons in such states. See CAA section
209(e)(2)(B). For these reasons, EPA determines and finds that this is
a final action of national applicability, and also a final action of
nationwide scope or effect 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 8, 2016. 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: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-31049 Filed 12-8-15; 8:45 am]
BILLING CODE 6560-50-P

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