[Federal Register Volume 90, Number 3 (Monday, January 6, 2025)]
[Notices]
[Pages 643-645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31125]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2022-0332; FRL-9902-02-OAR]
California State Motor Vehicle and Engine and Nonroad Engine
Pollution Control Standards; The ``Omnibus'' Low NOX Regulation; Waiver
of Preemption; Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision.
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SUMMARY: The Environmental Protection Agency (``EPA'') is providing
notice of its decision to grant the California Air Resources Board's
(``CARB'') request for a waiver of Clean Air Act (CAA) preemption for
its Heavy-Duty Vehicle and Engine ``Omnibus'' Low NOX
Regulations (``Omnibus Low NOX program''). EPA's decision
also includes an authorization for portions of the Omnibus Low
NOX program that pertain to off-road diesel engines. This
decision was issued under the authority of the Clean Air Act (``CAA''
or ``Act'') section 209.
DATES: Petitions for review must be filed by March 7, 2025.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2022-0332. All documents relied upon in making this
decision, including those submitted to EPA by CARB, are contained in
the public docket. Publicly available docket materials are available
either electronically through www.regulations.gov or in hard copy at
the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of operation
are 8:30 a.m. to 4:30 p.m.; generally, it is open Monday through
Friday, except Federal holidays. The electronic mail (email) address
for the EPA Docket is: [email protected]. 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 www.regulations.gov
website, enter EPA-HQ-OAR-2022-0332 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 (``OTAQ'') 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 Federal Register notices, some of which are cited
in this notice; the page can be accessed at: https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations.
FOR FURTHER INFORMATION CONTACT: Brian Nelson, Office of Transportation
and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood
Drive, Ann Arbor, Michigan 48105. Telephone: 734-214-4278. Email:
[email protected].
SUPPLEMENTARY INFORMATION: On June 13, 2022, EPA published a Federal
Register notice announcing its receipt of California's waiver request.
In that notice, EPA invited public comment on
[[Page 644]]
California's waiver request and an opportunity to present testimony at
a public hearing.\1\ EPA held a public hearing on June 29 and June 30,
2022; EPA has considered all comments submitted, including those
submitted after the close of the comment period.\2\
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\1\ 87 FR 35765 (June 13, 2022).
\2\ A transcript for each day of the hearing (June 29th and
30th, 2022) can be found in the docket: June 29th Hearing
Transcript, Docket No. EPA-HQ-OAR-2022-0332-0035; June 30th Hearing
Transcript, Docket No. EPA-HQ-OAR-2022-0332-0036. All written
comments are also located at regulations.gov at EPA-HQ-OAR-2022-
0332.
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On December 17, 2024, I signed a Decision Document granting
California a waiver of preemption pursuant to section 209(b) of the
CAA, as amended, 42 U.S.C. 7543(b), for regulations applicable to new
2024 and subsequent model year (MY) California on-road heavy-duty
vehicles and engines, hereafter the Omnibus Low NOX
regulations.\3\ The Omnibus Low NOX program includes
requirements for revised heavy-duty emission standards, test
procedures, regulatory useful life, and emissions warranty. As part of
my decision, I have also decided to grant an authorization pursuant to
section 209(e) of the CAA, as amended, 42 U.S.C. 7543(e) for portions
of the Omnibus Low NOX program regarding off-road diesel
engines. The Omnibus Low NOX program includes new PM
emission standards for off-road diesel-fueled auxiliary power units. A
comprehensive description of California's Omnibus Low NOX
program can be found in the Decision Document for this waiver and in
materials submitted to the Docket by the California Air Resources Board
(CARB).\4\
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\3\ EPA's Decision Document is located at EPA-HQ-OAR-2022-0332.
EPA's waiver decision includes the Omnibus Low NOX
Regulation which was adopted by the California Air Resources Board
on August 27, 2020 by Resolution 20-23, and includes amendments
approved by the CARB Executive Officer on September 9, 2021 under
CARB Order No. R-21-007. The Omnibus Low NOX Regulation
is comprised of new title 13, California Code of Regulations (Cal.
Code Regs.) sections 2139.5, and 2169.1 through 2169.8; amendments
to title 13, Cal. Code Regs., sections 1900, 1956.8, 1961.2, 1965,
1968.2, 1971.1, 1971.5, 2035, 2036, 2111, 2112, 2113, 2114, 2115,
2116, 2117, 2118, 2119, 2121, 2123, 2125, 2126, 2127, 2128, 2129,
2130, 2131, 2133, 2137, 2139, 2140, 2141, 2142, 2143, 2144, 2145,
2146, 2147, 2148, 2149, 2166, 2166.1, 2167, 2168, 2169, 2170, 2423,
and 2485; and amendments to title 17 Cal. Code Regs. sections 95662
and 95663. EPA's waiver decision also includes the 2023 Targeted
Amendments to Omnibus which were adopted on December 28, 2023 by
CARB Executive Order No. R-23-006. The 2023 Targeted Amendments are
comprised of title 13, California Code of Regulations (Cal. Code
Regs.) sections 1956.8, 1971.1, and 1971.5.
\4\ The Decision Document can be found at EPA-HQ-OAR-2022-0332.
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For the portions of the Omnibus Low NOX program that
pertain to on-road emission standards, section 209(b) of the Act
provides that the Administrator, after notice and opportunity for
public hearing, shall waive Federal preemption for California to
enforce new motor vehicle emission standards and accompanying
enforcement procedures unless certain criteria are met. The criteria of
denying such a waiver 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 the
applicable Federal standards; whether California does not need such
State standards to meet compelling and extraordinary conditions; and
whether such State standards and accompanying enforcement procedures
are not consistent with section 202(a) of the Act.
For the portions of the Omnibus Low NOX program that
pertain to nonroad emission standards, 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.\5\ For all other nonroad engines (including ``non-new''
engines), states generally are preempted from adopting and enforcing
standards and other requirements relating to the control of emissions,
except that section 209(e)(2)(A) of the Act requires EPA, after notice
and opportunity for public hearing, to authorize California to adopt
and enforce such regulations unless EPA makes one of three enumerated
findings. Specifically, EPA must deny authorization if the
Administrator finds that (1) California's protectiveness determination
(i.e., that California standards will be, in the aggregate, as
protective of public health and welfare as applicable federal
standards) is arbitrary and capricious, (2) California does not need
such standards to meet compelling and extraordinary conditions, or (3)
the California standards and accompanying enforcement procedures are
not consistent with section 209 of the Act.
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\5\ States are expressly preempted from adopting or attempting
to enforce any standard or other requirement relating to the control
of emissions from new nonroad engines which are used in construction
equipment or vehicles or used in farm equipment or vehicles and
which are smaller than 175 horsepower. Such express preemption under
section 209(e)(1) of the Act also applies to new locomotives or new
engines used in locomotives.
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On July 20, 1994, EPA promulgated a rule interpreting the three
criteria set forth in section 209(e)(2)(A) that EPA must consider
before granting any California authorization request for nonroad engine
or vehicle emission standards.\6\ EPA revised these regulations in
1997.\7\ As stated in the preamble to the 1994 rule, EPA has
interpreted the consistency inquiry under the third criterion, outlined
above and set forth in section 209(e)(2)(A)(iii), 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) of the Act.\8\ 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 under section 209(b)(1)(C).
That provision provides that the Administrator shall not grant
California a motor vehicle waiver if the Administrator finds that
California ``standards and accompanying enforcement procedures are not
consistent with section 202(a)'' of the Act.
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\6\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
\7\ See ``Control of Air Pollution: Emission Standards for New
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts;
Preemption of State Regulation for Nonroad Engine and Vehicle
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997).
The applicable regulations are now found in 40 CFR part 1074,
subpart B, Part 1074.
\8\ EPA has interpreted section 209(b)(1)(C) in the context of
section 209(b) motor vehicle waivers.
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CARB determined that these standards and accompanying enforcement
procedures do not cause California's standards, in the aggregate, to be
less protective to public health and welfare than the applicable
Federal standards. The administrative record, including information
presented to me by parties opposing California's waiver, did not
demonstrate that California arbitrarily or capriciously reached this
protectiveness determination. Therefore, based on the record, I cannot
find California's determination to be arbitrary and capricious under
section 209(b)(1)(A) or section 209(e)(2)(A)(i).
CARB has demonstrated the existence of compelling and extraordinary
conditions justifying the need for its own motor vehicle emission
control
[[Page 645]]
program as well and justifying the need for its own nonroad vehicle
emission control program, which includes the subject standards and
procedures. Although EPA believes it unnecessary, CARB has also
demonstrated the need for the Omnibus Low NOX standards
within the Omnibus regulations. The administrative record, including
information presented to me by parties opposing California's waiver
(and authorization) request, did not demonstrate that California no
longer has compelling and extraordinary conditions justifying a need
for its own motor vehicle emission control program and its own nonroad
vehicle emission control program, or alternatively, a need for the
Omnibus Low NOX standards. Therefore, based on the record, I
agree that California continues to have compelling and extraordinary
conditions which require its own programs, or alternatively, a need for
the Omnibus Low NOX standards. Information presented to me
by parties opposing the waiver did not demonstrate otherwise. Thus, I
cannot deny the waiver based on section 209(b)(1)(B) or section
209(e)(2)(A)(ii).
CARB has submitted information that its emission standards and test
procedures are technologically feasible and present no inconsistency
with Federal requirements and are, therefore, consistent with section
202(a) of the Act and are consistent with section 209 as required by
section 209(e)(2)(A)(iii). The administrative record, including
information presented to me by parties opposing California's waiver and
authorization requests, did not satisfy the burden of persuading EPA
that the standards are not technologically feasible within the
available lead time, considering costs, or are otherwise inconsistent
with section 202(a) (for onroad) or section 209 (for nonroad). Thus,
based on the record, I cannot deny the waiver based on section
209(b)(1)(C) or section 209(e)(2)(A)(iii).
Accordingly, I hereby granted the waiver and authorization
requested by California.
Section 307(b)(1) of the CAA govern judicial review of final
actions by EPA. Petitions for review must be filed by March 7, 2025.
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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
Michael S. Regan,
Administrator.
[FR Doc. 2024-31125 Filed 1-3-25; 8:45 am]
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