[Federal Register Volume 76, Number 27 (Wednesday, February 9, 2011)]
[Notices]
[Pages 7194-7196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2852]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9264-3]


California State Nonroad Engine Pollution Control Standards; 
Request for Authorization of Portable Equipment Registration Program; 
Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has finalized amendments to its Portable Equipment Registration 
Program (PERP). PERP is a voluntary program that allows for the 
registration of nonroad engines and equipment units that operate at 
multiple locations, so that the engine/equipment owners can operate 
throughout California without the need of obtaining permits from local 
air pollution control districts. CARB has requested that EPA confirm 
that certain emission standards of the voluntary PERP fall within the 
scope of previously granted authorizations, and that a new 
authorization be granted for those emission standards that are 
otherwise not covered by the within-the-scope confirmation. This notice 
announces that EPA has tentatively scheduled a public hearing to 
consider California's PERP within-the-scope confirmation and 
authorization request and that EPA is now accepting written comment on 
the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on February 24, 2011, at 1:00 p.m. EST. EPA will hold a hearing 
only if any party notifies EPA by February 17, 2011, expressing its 
interest in presenting oral testimony. By February 18, 2011, any person 
who plans to attend the hearing may call Robert Doyle at (202) 343-
9258, to learn if a hearing will be held or may check the following 
webpage for an update: http://www.epa.gov/otaq/cafr.htm.
    Parties wishing to present oral testimony at the public hearing 
should provide written notice to Robert Doyle at the e-mail address 
noted below. If EPA receives a request for a public hearing, that 
hearing will be held at 1310 L Street, NW., Washington, DC 20005.
    If EPA does not receive a request for a public hearing, then EPA 
will not hold a hearing, and instead consider CARB's request based on 
written submissions to the docket. Any party may submit written 
comments until March 24, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2011-0102, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2011-0102, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2011-0102. EPA's policy is that all 
comments we receive will be included in the public docket without 
change and may be made available online at http://www.regulations.gov, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address will automatically be captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2011-0102. 
Publicly available docket materials are available either

[[Page 7195]]

electronically through http://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 work 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 http://www.epa.gov/oar/docket.html. The electronic mail (e-mail) address for the Air and 
Radiation Docket is: [email protected], the telephone number is 
(202) 566-1742, and the fax number is (202) 566-9744. An electronic 
version of the public docket is available through the Federal 
government's electronic public docket and comment system. You may 
access EPA dockets at http://www.regulations.gov. After opening the 
http://www.regulations.gov Web site, enter EPA-HQ-OAR-2011-0102, in the 
``Enter Keyword or ID'' fill-in box to view documents in the record. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality also maintains a 
webpage that contains general information on its review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices; the page can be accessed at 
http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor, 
Compliance and Innovative Strategies Division, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, 
DC 20460. Telephone: (202) 343-9258. Fax: (202) 343-2804. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. California's PERP Request

    In a letter dated December 5, 2008, CARB submitted to EPA its 
request pursuant to section 209 of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its regulations to enforce the requirements of its 
Portable Equipment Registration Program (PERP). CARB established the 
PERP as a voluntary program to address the concerns of equipment owners 
who moved equipment within California and thus often faced the need to 
obtain separate preconstruction and operating permits from the 
different local air pollution control districts in the state. Under the 
PERP, once registered, portable equipment is no longer subject to local 
air pollution control district permitting requirements. The PERP also 
requires that all registered engines and equipment meet established 
emission standards that reflected the best available control technology 
for all classes and categories of portable equipment. Generally, this 
means that, after January 1, 2006, only engines that meet the most 
stringent CARB or EPA emission standards in effect at the time of 
registration are allowed in the PERP. Registered compression-ignition 
engines must also meet the requirements of the CARB Airborne Toxic 
Control Measure (ATCM) for in-use portable diesel-fueled engines 50 
brake-horsepower (hp) and greater (portable engines).\1\ If spark-
ignition engines do not meet Federal or CARB certification standards, 
they can still meet some minimum requirements to be in the program.
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    \1\ CARB has requested an authorization for this ATCM; EPA has 
announced the opportunity for public hearing and public comment on 
this request by another Federal Register notice also published 
today. That notice is available at http://epa.gov/otaq/cafr.htm.
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    CARB has requested that EPA confirm that parts of the voluntary 
PERP for portable engines and equipment fall within the scope of 
previously issued authorizations,\2\ and that the Administrator grant a 
new authorization for those emission standards that are not otherwise 
not covered by the within-the-scope confirmation.
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    \2\ This includes: California State Nonroad Engine Pollution 
Control Standards; Authorization of State Standards for 1996 and 
later New Diesel Cycle Engines 175 Horsepower and Greater, 60 FR 
48981 (September 21, 1995); California State Nonroad Engine and 
Vehicle Pollution Control Standards: Authorization of Large Off-Road 
Spark-Ignition Engine Standards, Notice of Decision, 71 FR 29621 
(May 23, 2006); California State Nonroad Engine Pollution Control 
Standards: California New Nonroad Compression Ignition Engine 
Emission Standards; Notice of Decision (75 FR 8056) (February 23, 
2010).
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II. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any State, or 
political subdivision thereof, from adopting or attempting to enforce 
any standard or other requirement relating to the control of emissions 
for certain new nonroad engines or vehicles.
    Section 209(e)(2) requires the Administrator, after notice and 
opportunity for public hearing, to authorize California to enforce 
standards and other requirements relating to the control of emissions 
from new engines not listed under section 209(e)(1), if certain 
criteria are met. EPA has promulgated regulations implementing these 
provisions at 40 CFR part 1074. These regulations set forth the 
criteria that EPA must consider before granting California 
authorization to enforce its new nonroad emission standards.\3\
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    \3\ Title 40 of the Code of Federal Regulations, part 1074.105 
provides:
    (a) The Administrator will grant the authorization if California 
determines that its standards will be, in the aggregate, at least as 
protective of public health and welfare as otherwise applicable 
Federal standards.
    (b) The authorization will not be granted if the Administrator 
finds that any of the following are true:
    (1) California's determination is arbitrary and capricious.
    (2) California does not need such standards to meet compelling 
and extraordinary conditions.
    (3) The California standards and accompanying enforcement 
procedures are not consistent with section 209 of the Act.
    (c) In considering any request from California to authorize the 
state to adopt or enforce standards or other requirements relating 
to the control of emissions from new nonroad spark-ignition engines 
smaller than 50 horsepower, the Administrator will give appropriate 
consideration to safety factors (including the potential increased 
risk of burn or fire) associated with compliance with the California 
standard.
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    As stated in the preamble to the section 209(e) rule, EPA has 
historically interpreted the section 209(e)(2)(iii) ``consistency'' 
inquiry to require, at minimum, that California standards and 
enforcement procedures be consistent with section 209(a), section 
209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that 
subsection in the context of section 209(b) motor vehicle waivers).\4\
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    \4\ 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

[[Page 7196]]

permit the development of the necessary technology giving appropriate 
consideration to the cost of compliance within that time, or (2) the 
Federal and state testing procedures impose inconsistent certification 
requirements.
    If California amends regulations that were previously granted an 
authorization, EPA can confirm that the amended regulations are within 
the scope of the previously granted authorization. Such within-the-
scope amendments are permissible without a full authorization review if 
three conditions are met. First, the amended regulations must not 
undermine California's determination that its standards, in the 
aggregate, are as protective of public health and welfare as applicable 
Federal standards. Second, the amended regulations must not affect 
consistency with section 202(a) of the Act. Third, the amended 
regulations must not raise any ``new issues'' affecting EPA's prior 
authorizations.

III. Procedures for Public Participation

    As stated above, EPA is offering the opportunity for a public 
hearing, and requesting written comment on issues relevant to the CARB 
request. First, CARB has requested EPA confirm that parts of the 
voluntary PERP for portable engines and equipment fall within the scope 
of previously issued authorizations or submitted authorization 
requests. Within the context of a within-the-scope analysis, EPA 
invites comment on whether California's PERP requirements (1) undermine 
California's previous determination that its standards, in the 
aggregate, are at least as protective of public health and welfare as 
comparable Federal standards, (2) affect the consistency of 
California's requirements with section 202(a) of the Act, and (3) raise 
any other new issues affecting EPA's previous waiver or authorization 
determinations.
    Second, CARB has requested that the Administrator grant a new 
authorization for those emission standards that are not otherwise not 
covered by the within-the-scope confirmation. For this full 
authorization analysis, we request comment on: (a) Whether CARB's 
determination that its standards, in the aggregate, are at least as 
protective of public health and welfare as applicable Federal standards 
is arbitrary and capricious, (b) whether California needs such 
standards to meet compelling and extraordinary conditions, and (c) 
whether California's standards and accompanying enforcement procedures 
are consistent with section 209 of the Act.
    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 March 24, 2011. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record from the public hearing, if any, all relevant 
written submissions, and other information that she deems pertinent. 
All information will be available for inspection at the EPA Air Docket 
No. EPA-HQ-OAR-2011-0102.
    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'' (CBI). 
If a person making comments wants EPA to base its decision on a 
submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that proprietary information 
is not inadvertently placed in the public docket, submissions 
containing such information should be sent directly to the contact 
person listed above and not to the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed, and according to the procedures set forth in 40 CFR 
Part 2. If no claim of confidentiality accompanies the submission when 
EPA receives it, EPA will make it available to the public without 
further notice to the person making comments.

    Dated: February 3, 2011.
Lori Stewart,
Acting Director, Office of Transportation and Air Quality, Office of 
Air and Radiation.
[FR Doc. 2011-2852 Filed 2-8-11; 8:45 am]
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