[Federal Register Volume 60, Number 183 (Thursday, September 21, 1995)]
[Notices]
[Pages 48981-48982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23436]



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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-5300-6]


California State Nonroad Engine Pollution Control Standards; 
Authorization of State Standards; Notice of Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice regarding authorization of State standards.

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SUMMARY: EPA is authorizing California to enforce regulations for 
exhaust emission standards and test procedures for 1996 and later new 
heavy-duty off-road diesel cycle engines 175 horsepower and greater 
pursuant to section 209(e) of the Clean Air Act.

ADDRESSES: The Agency's decision document containing an explanation of 
the Administrator's decision, as well as all documents relied upon in 
reaching that decision, including those submitted by the California Air 
Resources Board (CARB), are available for public inspection in the Air 
and Radiation Docket and Information Center in Docket A-94-44 during 
the working hours of 8:00 a.m. to 5:30 p.m. at the Environmental 
Protection Agency, Air Docket (6102), Room M-1500, Waterside Mall, 401 
M Street, S.W., Washington, D.C. 20460. Copies of the decision can be 
obtained from EPA's Manufacturers Operations Division by contacting 
David Dickinson, as noted below.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney/Advisor, 
Manufacturers Operations Division (6405J), U.S. Environmental 
Protection Agency, 401 M Street S.W., Washington, D.C. 20460. 
Telephone: (202) 233-9256.

SUPPLEMENTARY INFORMATION: I have decided to authorize California to 
enforce regulations for standards and test procedures for nonroad 
engines pursuant to section 209(e) of the Clean Air Act, as amended 
(Act), 42 U.S.C. 7543. These regulations establish exhaust emission 
standards and test procedures for 1996 and later new heavy-duty off-
road diesel cycle engines 175 horsepower and greater, including 
alternate-fueled engines, produced on or after January 1, 1996. A 
comprehensive description of these California regulations can be found 
in the decision document for this authorization and in materials 
submitted by CARB.
    On the basis of the record before me, I cannot make the findings 
required to deny authorization under section 209(e)(2) of the Act. 
Therefore, I am authorizing California to enforce these regulations.
    On February 14, 1995 EPA published a notice of opportunity for a 
public hearing and a request for written comments concerning 
California's request.\1\ EPA received no request for a hearing. EPA 
received comments from the United States Office of the Deputy Under 
Secretary of Defense. Consequently, this determination is based on 
written submissions by CARB, the written comments submitted in response 
to the above-mentioned notice and all other relevant information.

    \1\60 FR 8381 (February 14, 1995).
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    Section 209(e) of the Act as amended, 42 U.S.C. 7543(e), addresses 
state regulation of nonroad engines and vehicles. EPA issued on July 
20, 1994 a final regulation to implement section 209(e) entitled ``Air 
Pollution Control; Preemption of State Regulation for Nonroad Engine 
and Vehicle Standards'' (section 209(e) rule).\2\ Section 209 preempts 
states from regulating several types of new nonroad engines and 
vehicles, including 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 new locomotives or new engines 
used in locomotives. The section 209(e) rule sets forth definitions for 
these preempted categories of engines.

    \2\See 59 FR 36969 (July 20, 1994) and codified at 40 C.F.R. 
Part 85, Subpart Q, Secs. 85.1601-85.1606.
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    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 promulgate standards regulating 
such new equipment or new vehicles provided California complies with 
Section 209(e)(2). The section 209(e) rule provides that if certain 
criteria are met, the Administrator shall authorize 

[[Page 48982]]
California to adopt and enforce standards and other requirements 
relating to the control of emissions from such vehicles or engines. The 
criteria include consideration of whether California arbitrarily and 
capriciously determined that its standards are, in the aggregate, at 
least as protective of public health and welfare as applicable Federal 
standards; whether California needs state standards to meet compelling 
and extraordinary conditions; and whether California's standards and 
accompanying enforcement procedures are consistent with section 209.
    California determined that its standards and test procedures would 
not cause California emission standards, in the aggregate, to be less 
protective of public health and welfare as the applicable Federal 
standards. I was not presented with any information opposing 
California's authorization request or demonstrating that California 
arbitrarily or capriciously reached this protectiveness determination. 
Therefore, I cannot find California's determination to be arbitrary or 
capricious.
    CARB has continually demonstrated the existence of compelling and 
extraordinary conditions justifying the need for its own motor vehicle 
pollution control program. In addition, CARB provided information 
regarding actions taken by the California Legislature in an effort to 
address the current air quality conditions in California, directing 
CARB to consider adopting regulations for off-road engines. No 
information has been submitted to demonstrate that California no longer 
has a compelling and extraordinary need for its own program. Based on 
previous showings by California in the context of motor vehicle waivers 
and CARB's submission to the record regarding the status of air quality 
in the state, I agree that compelling and extraordinary conditions 
warrant the need in California for separate standards for heavy-duty 
off-road diesel cycle engines. Thus, I cannot deny the waiver on the 
basis of the lack of compelling and extraordinary conditions.
    CARB has submitted information that the requirements of its 
emission standards and test procedures are technologically feasible and 
present no inconsistency with Federal requirements and are, therefore, 
consistent with section 209 of the Act.
    The one issue of inconsistent test procedures was resolved. For the 
test procedure for hydrocarbons (HC), carbon monoxide (CO), and oxides 
of nitrogen (NOX), EPA has more stringent test specifications such 
that EPA cannot be certain that if an engine were tested and met the 
California test specifications, that it would definitely meet the EPA 
test specifications. It is clear, on the other hand, that an engine 
that passed the EPA test specifications could definitely be deemed to 
have passed the CARB test specifications. CARB presented a letter to 
EPA dated January 21, 1995, which resolved this issue.\3\ The letter 
stated that ``tests properly conducted by the manufacturer, according 
to the U.S. EPA procedure, will be considered valid for purposes of 
California certification, quality-audit, and new engine compliance 
testing.'' Thus, the manufacturer will be able to accomplish both 
Federal and California certification requirements with one test and the 
test procedure tier of the consistency criterion is met.

    \3\Letter to Charles N. Freed, EPA from K.D. Drachand, CARB 
dated January 21, 1995. Docket A-94-44 II-D-3.
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    The Agency received no comments regarding this issue. Since both 
California and Federal certification requirements can be met with the 
same test vehicle in the course of a single test, test procedure 
inconsistency is not a bar to California to obtaining authorization by 
EPA to adopt and enforce California regulations. Thus, based on the 
foregoing information, I cannot find that California's standards and 
accompanying enforcement procedures are inconsistent with section 209 
of the Act.
    The Agency received written comment from the United States 
Department of Defense expressing concern that CARB's emission standards 
will have a major impact on military operations in California. As 
further explained in the decision document for this authorization, EPA 
expects CARB to adequately address this concern by adopting regulatory 
language to closely parallel the national security exemption provisions 
promulgated by EPA.
    Accordingly, I cannot make the determinations required for a denial 
of this authorization under section 209(e) of the Act, and therefore, I 
authorize the State of California to enforce these regulations.
    My decision will affect not only persons in California but also the 
manufacturers outside the State who must comply with California's 
requirements in order to produce nonroad equipment engines for sale in 
California. For this reason, I hereby determine and find that this is a 
final action of national applicability.
    Under 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 
November 20, 1995. Under section 307(b)(2) of the Act, judicial review 
of this final action may not be obtained in subsequent enforcement 
proceedings.
    As with past waiver and authorization 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.
    Finally, the Administrator has delegated the authority to make 
determinations regarding waivers of Federal preemption under section 
209(e) of the Act to the Assistant Administrator for Air and Radiation.

    Dated: September 15, 1995.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
[FR Doc. 95-23436 Filed 9-20-95; 8:45 am]
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