[Federal Register Volume 80, Number 88 (Thursday, May 7, 2015)]
[Notices]
[Pages 26249-26254]
[FR Doc No: 2015-11034]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0060; FRL-9927-30-OAR]

California State Nonroad Engine Pollution Control Standards;
Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards
Regulations; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board's (``CARB'') request for authorization
of amendments to its mobile cargo handling equipment at ports and
intermodal rail yards regulations (``CHE amendments''). EPA is also
confirming that certain CHE amendments are within the scope of prior
EPA authorizations. CARB's mobile cargo handling equipment at ports and
intermodal rail yard regulations apply to all newly purchased, leased
or rented on- and off-road vehicles and equipment, as well as in-use
on- and off-road vehicles and equipment, with compression-ignition
engines that operate at ports and intermodal rail yards. This decision
is issued under the authority of the Clean Air Act (``CAA'' or
``Act'').

DATES: Petitions for review must be filed by July 6, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0060. 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 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 working 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<PHONE_NUMBER>. 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_ADDRESS>the telephone number is
(202) 566-1742, and the fax number is<PHONE_NUMBER>. 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 Web site, enter EPA-HQ-OAR-2014-0060 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 today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney-Advisor,
Compliance Division, Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460. Telephone:<PHONE_NUMBER>. Fax:<PHONE_NUMBER>.
Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    CARB first adopted its CHE regulation on December 31, 2006. The
regulation applied to newly purchased, leased, or rented on- and off-
road vehicles and equipment, as well as to in-use on- and off-road
vehicles and equipment with compression-ignition (CI) engines that
operate at ports and intermodal rail yards.\1\ On February 21, 2012,
EPA granted California a full waiver for those parts of the CHE
regulation establishing emission standards for new on-road motor
vehicles and full authorization for standards and other requirements
related to the control of emissions affecting new and in-use nonroad
engines.\2\ CARB formally adopted the CHE amendments on October 14,
2012,\3\ and they are codified at title 13, California Code of
Regulations (CCR), section 2479. The CHE amendments modify certain
retrofit, operational, and compliance requirements; strengthen certain
emission standards; and address definitions and provide other
clarifying language. By letter dated May 16, 2013, CARB submitted a
request to EPA pursuant to section 209(e) of the Act, seeking EPA's
confirmation that certain CHE amendments fall within the scope of EPA's
February 2012 authorization

and a full authorization for other CHE amendments. Those CHE amendments
for which CARB sought within-the-scope confirmation are related to
compliance flexibility and reduced compliance costs and include:
Modification to retrofit requirements and operational practices;
demonstration of emissions equivalency for alternative technology; and
modification of certain compliance requirements. CARB sought a full
authorization for the CHE amendments related to new, more stringent
requirements and include: A new opacity based monitoring program for
in-use nonroad vehicles and equipment; and, a new retrofit requirement
for engines meeting the Tier 4 Family Emissions Limit standards.
---------------------------------------------------------------------------

    \1\ The federal term ``nonroad'' and the California term ``off-
road'' are used interchangeably.
    \2\ 77 FR 9916 (February 21, 2012).
    \3\ CARB ``Resolution 11-30,'' September 22, 2011; CARB
``Executive Order R-12-009,'' August 2, 2012.
---------------------------------------------------------------------------

A. 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.\4\ 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.
---------------------------------------------------------------------------

    \4\ 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.
---------------------------------------------------------------------------

    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.\5\ EPA revised these regulations in
1997.\6\ As stated in the preamble to the 1994 rule, EPA historically
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.\7\
---------------------------------------------------------------------------

    \5\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
    \6\ 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, section 1074.105.
    \7\ See supra note 12. EPA has interpreted 209(b)(1)(C) in the
context of section 209(b) motor vehicle waivers.
---------------------------------------------------------------------------

    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 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 will be found to be 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.
    In light of the similar language of sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).\8\ These principles
include, among other things, that EPA should limit its inquiry to the
three specific authorization criteria identified in section
209(e)(2)(A),\9\ and that EPA should give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended EPA's
review of California's decision-making be narrow. EPA has rejected
arguments that are not specified in the statute as grounds for denying
a waiver:
---------------------------------------------------------------------------

    \8\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075,
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of
permissible construction in analogizing Sec.  209(e) on nonroad
sources to Sec.  209(a) on motor vehicles.''
    \9\ See supra note 12, at 36983.

    The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in California air
quality not commensurate with its costs or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\10\
---------------------------------------------------------------------------

    \10\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more
stringent standard expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established that California
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. In the 1990 amendments to section 209, Congress
established section 209(e) and similar language in section
209(e)(1)(i) pertaining to California's nonroad emission standards
which California must determine to be, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.

This principle of narrow EPA review has been upheld by the U.S. Court
of Appeals for the District of Columbia Circuit.\11\ Thus, EPA's
consideration of all the evidence submitted concerning an authorization
decision is circumscribed by its relevance to those questions that may
be considered under section 209(e)(2)(A).
---------------------------------------------------------------------------

    \11\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------

    If California amends regulations that were previously authorized by
EPA, California may ask EPA to determine that the amendments are within
the scope of the earlier authorization. A within-the-scope
determination for such amendments is permissible without a full
authorization review if three conditions are met. First, the amended
regulations must not undermine California's previous 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 209 of the Act,
following the same criteria discussed above in the context of full
authorizations. Third, the amended regulations must not raise any ``new
issues'' affecting EPA's prior authorizations.\12\
---------------------------------------------------------------------------

    \12\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
---------------------------------------------------------------------------

B. Deference to California

    In previous waiver decisions, EPA has recognized that the intent of
Congress in creating a limited review based on the section 209(b)(1)
criteria was to ensure that the federal government did not second-guess
state policy choices. As the agency explained in one prior waiver
decision:

    It is worth noting * * * I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator. The
whole approach of the Clean Air Act is to force the development of
new types of emission control technology where that is needed by
compelling the industry to ``catch up'' to some degree with newly
promulgated standards. Such an approach * * * may be attended with
costs, in the shape of reduced product offering, or price or fuel
economy penalties, and by risks that a wider number of vehicle
classes may not be able to complete their development work in time.
Since a balancing of these risks and costs against the potential
benefits from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.\13\
---------------------------------------------------------------------------

    \13\ 40 FR 23102, 23103-23104 (May 28, 1975).

    Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\14\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
Clean Air Act.\15\ Congress had the opportunity through the 1977
amendments to restrict the preexisting waiver provision, but elected
instead to expand California's flexibility to adopt a complete program
of motor vehicle emission controls. The report explains that the
amendment is intended to ratify and strengthen the preexisting
California waiver provision and to affirm the underlying intent of that
provision, that is, to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare.\16\
---------------------------------------------------------------------------

    \14\ Id. at 23104; 58 FR 4166 (January 13, 1993).
    \15\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-302 (1977)).
    \16\ Id.
---------------------------------------------------------------------------

C. Burden and Standard of Proof

    As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a waiver request by California bear the burden of
showing that the statutory criteria for a denial of the request have
been met:

    [T]he language of the statute and its legislative history
indicate that California's regulations, and California's
determinations that they must comply with the statute, when
presented to the Administrator are presumed to satisfy the waiver
requirements and that the burden of proving otherwise is on whoever
attacks them. California must present its regulations and findings
at the hearing and thereafter the parties opposing the waiver
request bear the burden of persuading the Administrator that the
waiver request should be denied.\17\

    \17\ MEMA I, supra note 19, at 1121.

The Administrator's burden, on the other hand, is to make a reasonable
evaluation of the information in the record in coming to the waiver
decision. As the court in MEMA I stated: ``here, too, if the
Administrator ignores evidence demonstrating that the waiver should not
be granted, or if he seeks to overcome that evidence with unsupported
assumptions of his own, he runs the risk of having his waiver decision
set aside as `arbitrary and capricious.' '' \18\ Therefore, the
Administrator's burden is to act ``reasonably.'' \19\
---------------------------------------------------------------------------

    \18\ Id. at 1126.
    \19\ Id. at 1126.
---------------------------------------------------------------------------

    With regard to the standard of proof, the court in MEMA I explained
that the Administrator's role in a section 209 proceeding is to:

    [. . .]consider all evidence that passes the threshold test of
materiality and * * * thereafter assess such material evidence
against a standard of proof to determine whether the parties
favoring a denial of the waiver have shown that the factual
circumstances exist in which Congress intended a denial of the
waiver.\20\

    \20\ Id. at 1122.

In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court, however, are similarly applicable to
an EPA review of a request for a waiver of preemption for a standard.
The court instructed that ``the standard of proof must take account of
the nature of the risk of error involved in any given decision, and it
therefore varies with the finding involved. We need not decide how this
standard operates in every waiver decision.'' \21\
---------------------------------------------------------------------------

    \21\ Id.
---------------------------------------------------------------------------

    With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\22\ The court
noted that this standard of proof also accords with the congressional
intent to provide California with the broadest possible discretion in
setting regulations it finds protective of the public health and
welfare.\23\
---------------------------------------------------------------------------

    \22\ Id.
    \23\ Id.
---------------------------------------------------------------------------

    With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all proceedings, but found
that the opponents of the waiver were unable to meet their burden of
proof even if the standard were a mere preponderance of the evidence.
Although MEMA I did not explicitly consider the standards of proof
under section 209 concerning a waiver request for ``standards,'' as
compared to a waiver request for accompanying enforcement procedures,
there is nothing in the opinion to suggest that the court's analysis
would not apply with equal force to such determinations. EPA's past
waiver decisions have consistently made clear that: ``[E]ven in the two
areas concededly reserved for Federal judgment by this legislation--the
existence of `compelling and extraordinary' conditions and whether the
standards are technologically feasible--Congress intended that the
standards of EPA review of the State decision to be a narrow one.''
\24\
---------------------------------------------------------------------------

    \24\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
---------------------------------------------------------------------------

D. EPA's Administrative Process in Consideration of California's CHE
Amendment Request for Authorization

    On May 28, 2014, EPA published a Federal Register notice announcing
its receipt of California's authorization

request. In that notice, EPA invited public comment on each of the CHE
amendments and an opportunity to request a public hearing.\25\
---------------------------------------------------------------------------

    \25\ See ``California State Nonroad Engine Pollution Control
Standards; Mobile Cargo Handling Equipment at Ports and Intermodal
Rail Yards Regulation; Request for Within-the-Scope and Full
Authorization; Opportunity for Public Hearing and Comment,'' 79 FR
30608 (May 28, 2014).
---------------------------------------------------------------------------

    First, EPA requested comment on the CHE amendments, as follows: (1)
Should California's CHE amendments be considered under the within-the-
scope analysis, or should they be considered under the full
authorization criteria?; (2) If those amendments should be considered
as a within-the-scope request, do they meet the criteria for EPA to
grant a within-the-scope confirmation?; and (3) If the amendments
should not be considered under the within-the-scope analysis, or in the
event that EPA determines they are not within the scope of the previous
authorization, do they meet the criteria for full authorization?
    EPA received one anonymous written comment that opposed ``any new
Regulation or Rule promulgated by EPA on California State Non Road
Engine Pollution Control Standards: Mobile Cargo Handling Equipment at
Ports and Intermodal Rail Yards Regulations.'' \26\ EPA is not
promulgating any regulations or rules regarding California's CHE
regulations, but rather is adjudicating whether or not the amendments
that CARB made to its own CHE regulations are within the scope of
previous authorizations granted by EPA or fulfill the criteria for a
full authorization under the Clean Air Act. EPA received no requests
for a public hearing. Consequently, EPA did not hold a public hearing.
---------------------------------------------------------------------------

    \26\ See EPA-HQ-OAR-2014-0060-0019.
---------------------------------------------------------------------------

II. Discussion

    The CHE amendment package contains six categories of amendments.
CARB seeks within-the-scope confirmation for the following amendments:
(1) Modification to retrofit requirements; (2) modification of
operation practices; (3) allowance of demonstration of emissions
equivalency for alternative technology; and (4) modification of
compliance requirements. CARB seeks a full authorization to enforce
amendments that establish: (1) A new opacity based monitoring program;
and (2) new retrofit requirements for engines meeting the Tier 4 Family
Emission Limits standards.

A. Within-the-Scope Discussion

    California maintains that many of the CHE amendments were enacted
to address a variety of implementation issues associated with the
initial CHE regulations. CARB asserts that the amendments provide
additional compliance flexibilities without sacrificing significant
emission reductions.
    CARB's amendments to the retrofit requirements allow additional
time for fleet owners/operators (fleets) to retrofit equipment for
which no verified diesel emission control strategies (VDECS) are
available. The retrofit amendments also add safety as a criterion for
assessing VDECS availability, allow additional time to request a
compliance date extension, and allow an extension of the time for the
use of experimental diesel particulate matter emissions control
strategies for the purpose of gathering verification data on such
strategies.
    According to CARB, the amendments that modify the operational
practice requirements involve four minor adjustments to the CHE
regulations. These include a low-use compliance extension (a two-year
extension for equipment that operates less than 200 hours per year), an
allowance for cargo handling equipment other than yard trucks (``non-
truck CHE''), owned or leased by one party to be transferred to another
location under certain limitations, an allowance for fleets to replace
engines still under the original equipment manufacturer's warranty with
replacement engines that meet the emission standards of the original
engine, even when newer engine emission standards are in place for
newly produced engines, and a new provision allowing fleets to rent
non-compliant equipment in the event that compliant equipment is
unavailable due to manufacturer delivery delays.
    The third set of amendments that CARB maintains are within the
scope of the prior authorization establishes a compliance option that
allows fleets to demonstrate emissions equivalency for alternative
technology. CARB states that these amendments are designed to encourage
introduction of new technologies such as hybrid and electric equipment.
    Finally, the fourth set of amendments modifies compliance
requirements by establishing a compliance schedule that allows fleets
to bring older engines into compliance first if owners and operators
choose to do so, and by exempting equipment at rural low-throughput
ports.\27\
---------------------------------------------------------------------------

    \27\ The exemption applies if the average annual throughput of
goods through a port is less than one million tons and the port is
located more than 75 miles from an urban area.
---------------------------------------------------------------------------

    CARB maintains that the amendments noted above meet all three
within-the-scope criteria, i.e. that the amendments: (1) Do not
undermine the original protectiveness determination underlying
California's CHE regulations; (2) do not affect the consistency of the
CHE regulations with section 209, and (3) do not raise any new issues
affecting the prior authorizations.\28\ We received no adverse comments
or evidence suggesting a within-the-scope analysis is inappropriate, or
that these CHE amendments fail to meet any of the three criteria for
within-the-scope confirmation.
---------------------------------------------------------------------------

    \28\ Id. at 16.
---------------------------------------------------------------------------

    With regard to the first within-the-scope prong, CARB maintains
that the stringency of its emission standards is, in the aggregate, at
least as protective of public health and welfare as applicable federal
standards.\29\ CARB also notes that its amendments will not create any
expected adverse environmental impacts.\30\ Finally, CARB notes that
there can be no question that the CHE regulations are at least as
protective of public health and welfare as applicable federal standards
given that EPA is unable to regulate emissions from in-use nonroad
engines and equipment and that no federally applicable regulations
exist. EPA agrees that there are no federally applicable standards for
in-use nonroad engines and that no evidence exists in the record to
demonstrate that CARB's CHE regulations, in the aggregate, are less
protective than applicable federal standards. Therefore, we cannot find
that the CHE amendments, as noted, undermine the protectiveness
determination made with regard to the original CHE authorization.
---------------------------------------------------------------------------

    \29\ See CARB Board Resolution 11-30 (enclosure 4 of CARB's
authorization request).
    \30\ See CARB Staff Report (enclosure 2 of CARB's authorization
request).
---------------------------------------------------------------------------

    With regard to the second within-the-scope prong (consistency with
section 209), CARB maintains that the CHE amendments do not regulate
new motor vehicles or motor vehicles engines and so are consistent with
section 209(a). Likewise the CHE amendments do not regulate any of the
permanently preempted categories of engines or vehicles, and so are
consistent with section 209(e)(1). Finally, CARB maintains that the CHE
amendments do not cause any technological feasibility issues or cause
inconsistency between state and federal test procedures, per section
209(b)(1)(C). CARB maintains that the CHE amendments, as noted, provide
additional compliance flexibilities beyond the CHE regulations

already found to be technologically feasible. Because there is no
evidence in the record to indicate that CARB's CHE amendments are
inconsistent with section 209 we cannot find that the CHE amendments,
as noted, are inconsistent with section 209.
    Third, California states that no new issues exist, and EPA has
received no evidence to the contrary.\31\ We therefore do not find any
new issues raised by the CHE amendments as noted.
---------------------------------------------------------------------------

    \31\ CARB authorization support document at 14, docket entry
EPA-HQ-OAR-2014-0060-0003.
---------------------------------------------------------------------------

    Having received no contrary evidence regarding these amendments, we
find that California has met the three criteria for a within-the-scope
authorization approval, and these amendments are thus confirmed as
within the scope of previous EPA authorizations of California's CHE
regulations.

B. Full Authorization Discussion

    As noted above, CARB seeks a full authorization to enforce
amendments that establish a new opacity based monitoring program and
new retrofit requirements for engines meeting the Tier 4 Family
Emission Limits standards.
    CARB's CHE amendments establish new in-use opacity standards and
require owners/operators to conduct annual opacity monitoring of all
CHE more than four years old from the date of its original manufacture
to ensure proper operation and maintenance so that engines continue to
perform as designed and certified. Retrofitted engines are similarly
monitored to ensure that the engines continue to be in compliance with
the VDECS executive order issued by CARB. Equipment found to be in
excess of opacity standards would be required to receive maintenance
and repair before being returned to service.
    Under the CHE regulation that EPA previously authorized, engine
manufacturers are allowed some flexibility during periods in which
emission standards are transitioning from one emission level (tier) to
another emission level (tier). This flexibility allows engine
manufacturers to certify a certain percentage of engines manufactured,
and identified as being part of the more stringent tier, to emission
levels that do not meet that more stringent tier. CARB established a
family emission limit (FEL) alternate particulate matter (PM) emission
standard (Tier 4 Alternate PM standard) that is essentially equivalent
to the less stringent Tier 3 PM emission standard. The Tier 4 Alternate
PM standard is about ten times higher than the otherwise applicable
Tier 4 PM standard. Through inadvertent error by CARB, the CHE
regulations allowed for in-use nonroad non-truck CHE to meet the
applicable upgrade requirements by meeting the Tier 4 Alternate PM
standard rather than the Tier 4 PM standard. CARB's CHE amendments
correct this error by requiring fleets that used the FEL-certified
engines to retrofit these engines with the highest available (best--
Tier 4) VDECS within one year.
    With regard to the first full authorization prong at section
209(e)(2)(i) of the Act, CARB maintains that the stringency of its
emission standards is, in the aggregate, at least as protective of
public health and welfare as applicable federal standards.\32\ CARB
also notes that its amendments will not create any expected adverse
environmental impacts.\33\ Finally, CARB notes that there can be no
question that its CHE regulation is at least as protective of public
health and welfare as applicable federal standards given that EPA is
unable to regulate emissions from in-use nonroad engines and equipment
and that no federally applicable regulations exist. EPA agrees that
there are no federally applicable standards for in-use nonroad engines
and that no evidence exists in the record to demonstrate that CARB's
CHE regulation is less protective, in the aggregate, than applicable
federal standards. Accordingly, we cannot find that CARB's
protectiveness finding is arbitrary and capricious.
---------------------------------------------------------------------------

    \32\ See CARB Board Resolution 11-30 (enclosure 4 of CARB's
authorization request).
    \33\ See CARB Staff Report (enclosure 2 of CARB's authorization
request).
---------------------------------------------------------------------------

    With regard to the second authorization criterion, section
209(e)(2)(A)(ii) instructs that EPA cannot grant an authorization if
the Agency finds that California ``does not need such California
standards to meet compelling and extraordinary conditions.'' EPA's
inquiry under this second criterion (found both in paragraphs
209(b)(1)(B) and 209(e)(2)(A)(ii)) has been to determine whether
California needs its own mobile source pollution program (i.e. set of
standards) for the relevant class or category of vehicles or engines to
meet compelling and extraordinary conditions, and not whether the
specific standards that are the subject of the authorization or waiver
request are necessary to meet such conditions.\34\ CARB notes that in
adopting its CHE amendments the CARB Board confirmed its longstanding
position that California continues to need its own nonroad engine
emission program to meet serious air pollution problems.\35\ Based on
the lack of evidence in the record or any suggestion that CARB no
longer has a need for its standards to meet compelling and
extraordinary conditions, we have no reason to deny CARB's
authorization request based on this second authorization criterion.
---------------------------------------------------------------------------

    \34\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \35\ See CARB's Authorization Support document at 15, citing
CARB Board Resolution 11-30.
---------------------------------------------------------------------------

    Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot
grant an authorization if California's standards and enforcement
procedures are not consistent with ``this section.'' As described
above, EPA's section 209(e) rule states that the Administrator shall
not grant authorization to California if she finds (among other tests)
that the ``California standards and accompanying enforcement procedures
are not consistent with section 209.'' EPA has interpreted the
requirement to mean that California standards and accompanying
enforcement procedures must be consistent with at least section 209(a),
section 209(e)(1), and section 209(b)(1)(C), as EPA has interpreted
this last subsection in the context of motor vehicle waivers.\36\ Thus,
this can be viewed as a three-pronged test.
---------------------------------------------------------------------------

    \36\ See 59 FR 36969 (July 20, 1994).
---------------------------------------------------------------------------

1. Consistency With Section 209(a)
    Section 209(a) of the Clean Air Act prohibits states or any
political subdivisions of states from setting emission standards for
new motor vehicles or new motor vehicle engines. Section 209(a) is
modified in turn by section 209(b) which allows California to set such
standards if other statutory requirements are met. To find a standard
to be inconsistent with section 209(a) for purposes of section
209(e)(2)(A)(iii), EPA must find that the standard in question actually
regulates new motor vehicles or new motor vehicle engines. In its
authorization request, CARB stated that by definition, the CHE
amendments do not regulate new motor vehicles or new motor vehicle
engines. EPA received no comments to suggest the contrary. Therefore,
EPA cannot deny California's request based on the CHE amendments being
inconsistent with section 209(a) of the Act.
2. Consistency With Section 209(e)(1)
    To be consistent with section 209(e)(1), California's standards or
other requirements relating to the control of emissions must not relate
to new engines which are used in farm or construction equipment or
vehicles and which are smaller than 175 horsepower

(hp), and new locomotives or new engines used in locomotives.
    CARB maintains that its CHE amendments do not regulate new engines
which are used in construction or farm equipment or vehicles below 175
hp, nor do the CHE amendments regulate new locomotives or new engines
used in locomotives.
    In light of the lack of contrary information in the record, EPA
cannot make a finding that CARB's CHE amendments are inconsistent with
section 209(e)(1). Therefore, EPA cannot deny CARB's authorization
request on this basis.
3. Consistency With Section 209(b)(1)(C)
    The requirement that California's standards be consistent with
section 209(b)(1)(C) of the Clean Air Act effectively requires
consistency with section 202(a) of the Act. To determine this
consistency, EPA has applied to California nonroad standards the same
test it has used previously for California motor vehicle standards;
namely, state standards are inconsistent with section 202(a) of the Act
if there is inadequate lead-time to permit the development of
technology necessary to meet those requirements, giving appropriate
consideration to the cost of compliance within that timeframe.
California's accompanying enforcement procedures would also be
inconsistent with section 202(a) if federal and California test
procedures conflicted. The scope of EPA's review of whether
California's action is consistent with section 202(a) is narrow. The
determination is limited to whether those opposed to the authorization
or waiver have met their burden of establishing that California's
standards are technologically infeasible, or that California's test
procedures impose requirements inconsistent with the federal test
procedures.\37\
---------------------------------------------------------------------------

    \37\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------

    CARB states that the smoke opacity test is a quick and inexpensive
way to detect if an engine is emitting excessive emissions. CARB
maintains that the smoke opacity test is technologically feasible and
that compliance with the standards does not require the incorporation
of any new technology not already required by existing regulations that
have previously received an EPA authorization. CARB also states that
the clarification of the Tier 4 FEL emission standards provisions are
technologically feasible and were designed to correct an unintentional
error and to clarify the original intent of the previously authorized
CHE regulations. The CHE amendments only require retrofit to the Tier 4
emission level if appropriate technology is available and require the
retrofit be performed within one year. EPA did not receive any comment
or evidence to suggest that either of the two amendments for which CARB
requested authorization is technologically infeasible.
    Consequently, based on the record, EPA is unable to make the
finding that the CHE amendments are not technologically feasible with
the available lead time giving consideration to the cost of compliance.
    EPA received no comments suggesting that CARB's CHE amendments pose
any test procedure consistency problem. Therefore, based on the record,
EPA cannot find that CARB's testing procedures are inconsistent with
section 202(a) and cannot deny CARB's request based on this criterion.

III. Decision

    The Administrator has delegated the authority to grant California
section 209(e) authorizations to the Assistant Administrator for Air
and Radiation. After evaluating CARB's amendments to its CHE
regulations described above and CARB's submissions for EPA review, EPA
is taking the following actions.
    First, EPA is granting a within-the-scope authorization for the CHE
amendments that modify the retrofit requirements, modify operational
practices, allow demonstration of emissions equivalency for alternative
technology, and modify compliance requirements.
    Second, EPA is granting a full authorization for the CHE amendments
that establish a new opacity based monitoring program and new retrofit
requirements for engines meeting the Tier 4 FEL standards.
    This decision will affect persons in California and those
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(e)(2)(A) authorization
has been granted if certain criteria are met, this decision would also
affect those states and those persons in such states. See CAA section
209(e)(2)(B). For these reasons, EPA determines and finds that this is
a final action of national applicability, and also a final action of
nationwide scope or effect for purposes of section 307(b)(1) of the
Act. Pursuant to 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 July 6, 2015. Judicial review of this final action may not be
obtained in subsequent enforcement proceedings, pursuant to section
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

    As with past authorization and waiver 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.
    Further, 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).

    Dated: April 29, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-11034 Filed 5-6-15; 8:45 am]
 BILLING CODE 6560-50-P