[Federal Register Volume 79, Number 225 (Friday, November 21, 2014)]
[Notices]
[Pages 69462-69465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27645]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9919-61-OAR]
California State Nonroad Engine Pollution Control Standards;
Portable Diesel-Fueled Engines Air Toxics Control Measure; Request for
Confirmation That Amendments Are Within the Scope of Previous
Authorization; Opportunity for Public Hearing and Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The California Air Resources Board (CARB) has notified the
Environmental Protection Agency (EPA) that it adopted amendments to
California's Portable Diesel-Fueled Engines Air Toxics Control Measure
(Portable Engine ATCM) in 2007, 2009, and 2010. By letter dated
September 15, 2014, CARB asked that EPA authorize these amendments
pursuant to the Clean Air Act (CAA or Act). CARB requested EPA's
confirmation that the amendments are within the scope of a prior
authorization, or, in the alternative, that the amendments merit full
authorization. This notice announces that EPA has tentatively scheduled
a public hearing to consider California's 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 January 14, 2015 at 10 a.m. ET. EPA will hold a hearing only
if any party notifies EPA by December 15, 2014 to express interest in
presenting the Agency with oral testimony. Parties that wish to present
oral testimony at the public hearing should provide written notice to
David Read at the email address noted below. If EPA receives a request
for a public hearing, that hearing will be held at the William
Jefferson Clinton Building (North), Room 5530 at 1200 Pennsylvania Ave.
NW., Washington, DC 20460. If EPA does not receive a request for a
public hearing, then EPA will not hold a hearing, and will instead
consider CARB's request based on written submissions to the docket. Any
party may submit written comments until February 16, 2015.
Any person who wishes to know whether a hearing will be held may
call David Read at (734) 214-4367 on or after December 17, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0798, by one of the following methods:
Online at http://www.regulations.gov: Follow the Online
Instructions for Submitting Comments.
Email: [email protected].
Fax: (202) 566-9744.
Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2014-0798, U.S. Environmental Protection Agency, Mail code: 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.
Online Instructions for Submitting Comments: Direct your comments
to
[[Page 69463]]
Docket ID No. EPA-HQ-OAR-2014-0798. 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 email. 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 email comment directly to EPA without
going through http://www.regulations.gov, your email 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-2014-0798.
Publicly available docket materials are available either 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 (email) 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, 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 Web
page that contains general information on its review of California
waiver and authorization 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: David Read, Attorney, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
2565 Plymouth Road, Ann Arbor, MI 48105. Telephone: (734) 214-4367.
Fax: (734) 214-4212. Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. California's Portable Engine ATCM Regulations
California initially adopted its Portable Engine ATCM regulations
on February 26, 2004 as part of a broad California program to reduce
emissions of diesel particulate matter. The Portable Engine ATCM
regulations applied to in-use, portable, off-road \1\ diesel-fueled
engines rated 50 brake horsepower (bhp) and greater. These engines were
required to be certified to certain emission standards by January 1,
2010, unless the engines were designated as low-use engines or as
engines exclusively used in emergency applications. The initial
Portable Engine ATCM became operative under state law on March 11, 2005
\2\ and EPA authorized the regulations on November 29, 2012.\3\
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\1\ The federal term ``nonroad'' and the California term ``off-
road'' may be used interchangeably herein.
\2\ The Portable Engine ATCM is set forth at 17 CCR 93116 et
seq.
\3\ 77 FR 72846 (December 6, 2012).
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As authorized, the Portable Engine ATCM regulations require subject
engines to meet specified emission standards, and require fleets of in-
use diesel-fueled portable engines to meet fleet-average standards for
diesel PM emissions that become increasingly more stringent in 2013,
2017, and 2020.
II. The 2007 Amendments
CARB adopted the 2007 amendments at issue in this notice on July
31, 2007, and they became effective on September 12, 2007. The 2007
amendments were designed to extend temporary, emergency provisions CARB
had adopted to address the inability of owners and operators to permit
or register older engines that did not satisfy the Portable Engine ATCM
certification requirement to meet the most stringent Federal or
California emission standards. The 2007 amendments addressed this issue
by (i) granting discretion to local air districts to permit or register
uncertified portable engines that were operated in California within a
designated time period prior to October 1, 2006, or that were low-use
engines or used exclusively in emergency applications, (ii) allowing
Tier 1 and Tier 2 engines that were in operation within a designated
time period prior to October 1, 2006, but did not meet the most
stringent emission requirements, to be permitted or registered until
December 31, 2009, and (iii) and otherwise providing additional
compliance flexibility.
III. The 2009 Amendments
In 2008, CARB adopted an In-Use Off-Road regulation \4\ and a Truck
and Bus regulation.\5\ CARB then amended the Portable Engine ATCM to
exempt certain engines (namely, secondary engines on two-engine cranes
and two-engine sweepers, and on lattice boom cranes) that instead
became subject to these other new regulations. CARB formally adopted
the amendments to the Portable Engine ATCM on October 19, 2009 (the
2009 amendments).
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\4\ The California In-Use Off-Road regulation is set forth at 13
CCR 2449 et seq.
\5\ The California Truck and Bus regulation is set forth at 13
CCR 2025 et seq.
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IV. The 2010 Amendments
California formally approved the 2010 amendments to the Portable
Engine ATCM on October 19, 2010 and January 20, 2011. The 2010
amendments became operative under State law on February 19, 2011. The
2010 amendments primarily provide additional exemptions (namely for
snow removal vehicles and auxiliary engines on water well drilling
rigs) and compliance flexibility for certain owners and operators of
portable engines, as well as clarification or correction of perceived
oversights in the law.
[[Page 69464]]
By letter dated September 15, 2014, CARB submitted a request to EPA
pursuant to section 209(e) of the CAA for confirmation that the 2007,
2009, and 2010 amendments fall within the scope of EPA's previous
authorization, or, in the alternative, that EPA grant a full
authorization for those amendments.
V. Clean Air Act Nonroad Engine and Vehicle Authorizations
Section 209(e)(1) of the CAA prohibits States and local governments
from adopting or attempting to enforce any standard or requirement
relating to the control of emissions from new nonroad vehicles or
engines. The Act also preempts States 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), however,
requires the Administrator, after notice and opportunity for public
hearing, to authorize California to adopt and enforce standards and
other requirements related to the control of emissions from non-new
nonroad engines or vehicles. Section 209(e)(2), however, requires the
Administrator, after notice and opportunity for public hearing, to
authorize California to adopt and enforce standards and other
requirements relating to the control of emissions from such vehicles or
engines if California determines that California standards will be, in
the aggregate, at least as protective of public health and welfare as
applicable Federal standards. However, EPA shall not grant such
authorization if it finds that (1) the determination of California is
arbitrary and capricious; (2) California does not need such California
standards to meet compelling and extraordinary conditions; or (3)
California standards and accompanying enforcement procedures are not
consistent with CAA section 209.\6\ In addition, other states with air
quality attainment plans may adopt and enforce such regulations if the
standards and the 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 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) ``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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\6\ EPA's review of California regulations under section 209 is
not a broad review of the reasonableness of the regulations or its
compatibility with all other laws. Sections 209(b) and 209(e) of the
Clean Air Act limit EPA's authority to deny California requests for
waivers and authorizations to the three criteria listed therein. As
a result, EPA has consistently refrained from denying California's
requests for waivers and authorizations based on any other criteria.
In instances where the U.S. Court of Appeals has reviewed EPA
decisions declining to deny waiver requests based on criteria not
found in section 209(b), the Court has upheld and agreed with EPA's
determination. See Motor and Equipment Manufacturers Ass'n v.
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir.1998), Motor and
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
\7\ 59 FR 36969 (July 20, 1994).
\8\ 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 to authorize California 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\ 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.\10\
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\10\ Id; see also 78 FR 58090, 58092 (September 20, 2013).
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If California amends regulations that EPA has already authorized,
California can seek EPA confirmation that the amendments are within the
scope of the previous authorization. A within-the-scope confirmation,
without a full authorization review, is permissible if three conditions
are met.\11\ 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.
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\11\ See 78 FR 38970, 38972 (June 28, 2013).
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VI. EPA's Request for Comments
As stated above, EPA is offering the opportunity for a public
hearing, and is requesting written comment on issues relevant to a
within-the-scope analysis. Specifically, we request comment on whether
California's 2007, 2009, or 2010 Portable Engine ATCM amendments: (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 209 of the Act; or (3) raise any
other new issues affecting EPA's previous authorization determinations.
Should any party believe that the amendments are not within the
scope of the previous authorization, EPA also requests comment on
whether the 2007, 2009, or 2010 Portable Engine ATCM amendments meet
the criteria for a full authorization. Specifically, 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
[[Page 69465]]
accompanying enforcement procedures are consistent with section 209 of
the Act.
VII. Procedures for Public Participation
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 February 16, 2015. 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-2014-0798.
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: November 12, 2014.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and
Radiation.
[FR Doc. 2014-27645 Filed 11-20-14; 8:45 am]
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