[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27648]


[[Page Unknown]]

[Federal Register: November 8, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5103-2]

 

California State Nonroad Engine and Equipment Pollution Control 
Standards; Opportunity for Public Hearing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of an opportunity for Public Hearing and Public Comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted regulations for exhaust emission standards and test 
procedures for utility and lawn and garden equipment engines (utility 
engines) for 1995 and subsequent calendar years. CARB has requested 
that EPA authorize CARB to enforce regulations pursuant to section 
209(e) of the Clean Air Act (Act), as amended, 42 U.S.C. 7543. This 
notice announces that EPA has tentatively scheduled a public hearing to 
consider CARB's request and to hear comments from interested parties 
regarding CARB's request for EPA's authorization and CARB's 
determination that its regulations, as noted above, comply with the 
criteria set forth in section 209(e). In addition, EPA is requesting 
that interested parties submit written comments. Any party desiring to 
present oral testimony for the record at the public hearing, instead 
of, or in addition to, written comments, must notify EPA by November 
28, 1994. If no party notifies EPA that it wishes to testify on the 
nonroad emission amendments, then no hearing will be held and EPA will 
consider CARB's request based on written submissions to the record.

DATES: EPA has tentatively scheduled a public hearing for December 6, 
1994, beginning at 9:00 a.m., if any party notifies EPA by November 28, 
1994 that it wishes to present oral testimony regarding CARB's request. 
Any party may submit written comments regarding CARB's requests by 
January 11, 1995 (this extended written comment period allows 30 days 
plus an extra week for the holiday period). After November 28, 1994, 
any person who plans to attend the hearing may call David Dickinson of 
EPA's Manufacturers Operations Division at (202) 233-9256 to determine 
if a hearing will be held.

ADDRESSES: If a request is received, EPA will hold the public hearing 
announced in this notice at the Channel Inn (Captain's Room), 650 Water 
Street, SW., Washington, DC 20024. Parties wishing to present oral 
testimony at the public hearing should notify in writing, and if 
possible, submit ten (10) copies of the planned testimony to: Charles 
N. Freed, Director, Manufacturers Operations Division (6405J), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460. In addition, any written comments regarding the waiver request, 
should be sent, in duplicate, to Charles N. Freed at the same address 
to the attention of Docket A-91-01. Copies of material relevant to the 
waiver request (Docket A-91-01) will be available for public inspection 
during normal working hours of 8 a.m. to 4 p.m. Monday through Friday, 
including all non-government holidays, at the U.S. Environmental 
Protection Agency, Air and Radiation Docket and Information Center, 401 
M Street, SW., Washington, DC 20460. Telephone: (202) 260-7548. FAX 
Number: (202) 260-4000.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney/Advisor, 
Manufacturers Operations Division (6405J), U.S. Environmental 
Protection Agency, Washington, DC 20460. Telephone: (202) 233-9256.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 209(e)(1) of the Act as amended, 42 U.S.C. 7543(e)(1), 
provides in part: ``No State or any political subdivision thereof shall 
adopt or attempt to enforce any standard or other requirement relating 
to the control of emissions from either of the following new nonroad 
engines or nonroad vehicles subject to regulation under this Act--(A) 
New engines which are used in construction equipment or vehicles or 
used in farm equipment or vehicles and which are smaller than 175 
horsepower. (B) New locomotives or new engines used in locomotives.''
    For those new pieces of equipment or new vehicles other than those 
a State is not permanently preempted from regulating under section 
209(e)(1), the State of California may regulate such new equipment or 
new vehicles provided California complies with Section 209(e)(2). 
Section 209(e)(2) provides in part that the Administrator shall, after 
notice and opportunity for public hearing, authorize California to 
adopt and enforce standards and other requirements relating to the 
control of emissions from such vehicles or engines ``[i]f California 
determines that California standards will be, in the aggregate, at 
least as protective of public health and welfare as applicable Federal 
standards. No such authorization shall be granted if the Administrator 
finds that--(i) the determination of California is arbitrary and 
capricious, (ii) California does not need such California standards to 
meet compelling and extraordinary conditions, or (iii) California 
standards and accompanying enforcement procedures are not consistent 
with this section.''
    EPA has issued a final regulation titled ``Air Pollution Control; 
Preemption of State Regulation for Nonroad Engine and Vehicle 
Standards'' (section 209(e) rule) that sets forth several definitions, 
as explained below, and the authorization criteria EPA must consider 
before granting California an authorization to enforce any of its 
nonroad engine standards.1 As described in the section 209(e) 
rule, in order to be deemed ``consistent with this section'', 
California standards and enforcement procedures must be consistent with 
section 209. In order to be consistent with section 209 California 
standards and enforcement procedures must reflect the requirements of 
sections 209(a), 209(e)(1), and 209(b). Section 209(a) prohibits states 
from adopting or enforcing emission standards for new motor vehicles or 
new motor vehicle engines.2 Section 209(e)(1) identifies the 
categories preempted from state regulation. As stated above, the 
preempted categories are (a) new engines which are used in construction 
equipment or vehicles or used in farm equipment or vehicles and which 
are smaller than 175 horsepower, and (b) new locomotives or new engines 
used in locomotives. The section 209(e) rule defines construction 
equipment or vehicle to mean ``any internal combustion engine-powered 
machine primarily used in construction and located on commercial 
construction sites. The section 209(e) rule defines farm equipment or 
vehicle to mean ``any internal combustion engine-powered machine 
primarily used in the commercial production and/or commercial 
harvesting of food, fiber, wood, or commercial organic products or for 
the processing of such products for further use on the farm. The 
section 209(e) rule defines ``primarily used'' to mean ``used 51 
percent or more.'' Therefore, California's proposed emission 
regulations would be considered inconsistent with section 209 if they 
applied to these permanently preempted categories. Additionally, the 
section 209(e) rule requires EPA to review nonroad authorization 
requests under the same ``consistency'' criterion that it reviews motor 
vehicle waiver requests. Under 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. California's nonroad 
standards are not consistent with section 202(a) if there is inadequate 
lead time to permit the development of technology necessary to meet 
those standards, giving appropriate consideration to the cost of 
compliance within that time frame. Additionally, California's nonroad 
accompanying enforcement procedures would be inconsistent with section 
202(a) if the Federal and California test procedures were inconsistent, 
that is, manufacturers would be unable to meet both the State and 
Federal test requirements with one test vehicle or engine.
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    \1\See 59 FR 36969, July 20, 1994 (to be codified at 40 C.F.R. 
part 85, subpart Q, Secs. 85.1601-85.1606). This final rule titled 
``Air Pollution Control; Preemption of State Regulation for Nonroad 
Engine and Vehicle Standards'' was proposed at 56 FR 45866, Sept. 6, 
1991, along with a ``Proposed Decision of the Administrator; 
Opportunity for Public Hearing'' at 56 FR 45873, Sept. 6, 1991.
    \2\EPA believes CARB's authorization request for utility and 
lawn and garden equipment engines below 25 horsepower does not raise 
an issue with regard to whether such engines are motor vehicles. EPA 
anticipates that in future CARB authorization requests involving 
larger horsepower engines EPA will utilize both its definitions of 
motor vehicles and nonroad engines to resolve this issue.
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    Once California has been granted an authorization, under section 
209(e)(2), for its standards and accompanying enforcement procedures 
for a category or categories of equipment, it may adopt other 
conditions precedent to initial retail sale, titling or registration of 
the subject category or categories of equipment without the necessity 
of receiving further EPA authorization.
    By letter dated December 27, 1990, CARB submitted to EPA a request 
that EPA authorize California to adopt regulations for standards and 
test procedures for 1994 and subsequent calendar year utility and lawn 
and garden engines and vehicles. On September 6, 1991 EPA issued a 
``Proposed Decision of the Administrator; Opportunity for Public 
Hearing.''3 By today's action EPA is offering an additional 
opportunity for public hearing and written comment on CARB's utility 
engine authorization request. By a decision dated December 18, 1992, 
CARB changed the affected model year to 1995. By letter dated September 
9, 1994, CARB submitted a revised authorization request for waiver of 
federal preemption describing, among other things, which categories of 
equipment would be subject to its regulations. These regulations which 
apply to all gasoline, diesel, and other fueled nonroad equipment 
engines 25 horsepower and under, with the exceptions noted in CARB's 
request:
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    \3\56 FR 45873, Sept. 6, 1991. A hearing was held on September 
20, 1991 for both CARB's utility engine authorization request and 
EPA's proposed Section 209(e) regulation. No final EPA decision was 
made regarding CARB's utility engine authorization request.
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    a. Establish exhaust emission standards for engines produced 
between December 31, 1994 and the end of the 1998 model year, measured 
in grams per brake-horsepower-hour (g/bhp-hr), based on total engine 
displacement and whether the equipment is handheld or non-handheld.
    b. Establish a second tier of exhaust emission standards for 1999 
and subsequent model year utility engines.
    c. Require certification of engines including compliance test 
procedures and assembly-line quality audit test procedures.
    d. Require that commencing with the year 1999 replacement engines 
for equipment built prior to 1995 comply with the 1995 model emission 
regulations.
    e. Establish a labeling requirement.
    f. Require manufacturers to provide a two year emissions warranty.
    Subsequent to CARB's adoption of its new utility and lawn and 
garden standards and test procedures, EPA proposed standards and test 
procedures for similar horsepower-sized equipment on May 16, 
1994.4 EPA expects this proposed rule to become final in May 1995. 
Under the proposed rule noted above EPA's standards and test procedures 
were proposed to commence on August 1, 1996. Because EPA's standards 
and test procedures are not yet final, EPA does not expect CARB's 
utility and lawn and garden standards and test procedures to be 
compared to EPA's proposed standards and test procedures for purposes 
of this authorization request. However, EPA invites comment on this 
reasoning and comment on any comparison between CARB's utility engine 
regulation and EPA's proposed regulation regarding similar horsepower-
sized equipment and how it may affect today's authorization 
consideration.
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    \4\``Control of Air Pollution; Emission Standards for New 
Nonroad Spark-Ignition Engines at or Below 19 Kilowatts'' at 59 FR 
25399, May 16, 1994.
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    California states in its September 9, 1994 letter that it has 
determined that its standards for utility and lawn and garden equipment 
engines are, in the aggregate, at least as protective of the public 
health and welfare as the applicable Federal standards. Further, 
California, referencing its December 27, 1990 letter, states that it 
needs separate standards to meet compelling and extraordinary 
conditions. Finally, California states that its standards and test 
procedures are consistent with section 209 of the Act. California's 
request will be considered according to the criteria for an 
authorization request as set forth in the section 209(e) 
regulation.5 Any party wishing to present testimony at the hearing 
or by written comment should address, as explained in the section 
209(e) rule, the following issues:
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    \5\``Air Pollution Control; Preemption of State Regulation for 
Nonroad Engine and Vehicle Standards'' at 59 FR 36969, July 20, 1994 
(to be codified at 40 C.F.R. part 85, subpart Q, Secs. 85.1601-
85.1606).
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    (1) Whether California's determination that its standards are at 
least as protective of public health and welfare as applicable Federal 
standards is arbitrary and capricious;
    (2) Whether California needs separate standards to meet compelling 
and extraordinary conditions; and,
    (3) Whether California's standards and accompanying enforcement 
procedures are consistent with (i) section 209(a), which prohibits 
states from adopting or enforcing emission standards for new motor 
vehicles or engines, (ii) section 209(e)(1), which identifies the 
categories preempted from state regulation, and (iii) section 202(a) of 
the Act.

II. Public Participation

    If the scheduled hearing takes place, it will provide an 
opportunity for interested parties to state orally their views or 
arguments or to provide pertinent information regarding the issues as 
noted above and further explained in the section 209(e) rule. Any party 
desiring to make an oral statement on the record should file ten (10) 
copies of its proposed testimony and other relevant material along with 
its request for a hearing with the Director of EPA's Manufacturers 
Operations Division at the Director's address listed above not later 
than November 28, 1994. In addition, the party should submit 50 copies, 
if possible, of the proposed statement to the presiding officer at the 
time of the hearing.
    In recognition that a public hearing is designed to give interested 
parties an opportunity to participate in this proceeding, there are no 
adverse parties as such. Statements by participants will not be subject 
to cross-examination by other participants without special approval by 
the presiding officer. The presiding officer is authorized to strike 
from the record statements which he deems irrelevant or repetitious and 
to impose reasonable limits on the duration of the statement of any 
participant.
    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until January 11, 1994.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information.'' To 
ensure that proprietary information is not inadvertently placed in the 
docket, submissions containing such information should be sent directly 
to the contact person listed above and not to the public docket. If a 
person making comments wants EPA to base its final decision in part on 
a submission labeled as confidential business information, then a non-
confidential version of the document which summarizes the key data or 
information should be placed in the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed by the procedures set forth in 40 CFR part 2. If no 
claim of confidentiality accompanies the submission when it is received 
by EPA, it may be made available to the public without further notice 
to person making comments.

    Dated: November 1, 1994.
Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 94-27648 Filed 11-7-94; 8:45 am]
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