[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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