[Federal Register Volume 80, Number 238 (Friday, December 11, 2015)]
[Notices]
[Pages 76971-76979]
[FR Doc No: 2015-31189]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0535; FRL 9939-94-OAR]

California State Nonroad Engine Pollution Control Standards;
Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-
Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-
Road Spark-Ignition Engines, Equipment, and Vehicles Regulations;
Notice of Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice of Decision.

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SUMMARY: The Environmental Protection Agency (EPA) is confirming that
the California Air Resources Board's (CARB's) 2011 amendments to its
Small Off-Road Engines (SORE) regulations (2011 SORE amendments), Tier
4 Off-Road Compression-Ignition (CI) regulations (2011 Tier 4
amendments), and Exhaust Emission Certification Test Fuel for Off-Road
Spark-Ignition (SI) Engines, Equipment, and Vehicles regulations (2011
Certification Test Fuel amendments) are within the scope of previous
EPA authorizations. The 2011 SORE amendments modify California's
existing SORE test procedures by aligning California procedures to be
consistent with recent amendments by EPA to the federal certification
and exhaust emission testing requirements.

The 2011 Tier 4 amendments enhance the harmonization of CARB's exhaust
emission requirements for new off-road CI engines with the
corresponding federal emissions requirements for nonroad CI engines.
The 2011 Certification Test Fuel amendments modify the certification
test fuel requirements for off-road spark ignition, gasoline-fueled
engines to allow the use of 10-percent ethanol-blend gasoline (E10) as
a certification fuel. This decision is issued under the authority of
the Clean Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by February 9, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0535. 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-2014-0535 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: Brenton Williams, Attorney-Advisor,
Compliance Division, Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105. Telephone:<PHONE_NUMBER>. Fax:<PHONE_NUMBER>. Email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

A. 2011 SORE Amendments

    CARB includes within its SORE regulations small off-road engines
and equipment \1\ rated at or below 19 kilowatts (kW) (25 horsepower
(hp)). The vast majority of engines covered by the SORE regulations are
SI engines that are used to power a broad range of equipment, including
lawn mowers, leaf blowers, generators, and small industrial equipment.
Exhaust and evaporative emissions from these engines are a significant
source of hydrocarbons and oxides of nitrogen, pollutants that
contribute to smog problems in California.
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    \1\ The federal term ``nonroad'' and the California term ``off-
road'' are used interchangeably.
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    CARB first adopted standards and test procedures applicable to SORE
in 1992. In 1993, CARB amended these regulations to delay their
implementation until 1995. EPA authorized these initial SORE
regulations in 1995.\2\ California subsequently amended its regulations
in 1994, 1995, and 1996 to clarify certification and implementation
procedures, exempt military tactical equipment, and relax emissions
standards for certain engines. EPA confirmed these three amendment
packages as within the scope of previous authorizations in 2000.\3\
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    \2\ 60 FR 37440 (July 20, 1995).
    \3\ 65 FR 69763 (November 20, 2000).
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    In 1998, CARB amended the SORE regulation to apply to all engines
rated less than 19 kW used in off-road applications. The 1998
amendments also revised the regulations to be based on engine
displacement instead of whether the engine is used in a handheld or
non-handheld application, delayed implementation of certain portions of
the standards, and adopted new emission standards for new engines under
19 kW. EPA confirmed these amendments to be within the scope of
previous authorizations in 2000.\4\
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    \4\ Id. at 69767.
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    In 2004, CARB amended its off-road CI regulations to match federal
standards and exhaust emissions standards, and adopted evaporative
emissions standards for small off-road SI engines rated at or below 19
kW. EPA granted a full authorization for these amendments in 2006.\5\
CARB adopted additional SORE amendments in 2008 which modified the
emission credits program to provide manufacturers with additional
flexibility and permitted the use of certification fuels with up to ten
volume percent ethanol content, provided that the same fuel is used for
certification with the EPA. EPA found these amendments to be within the
scope of previous authorizations in 2015.\6\
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    \5\ 71 FR 75536 (December 15, 2006).
    \6\ 80 FR 26041 (May 6, 2015).
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B. 2011 Tier 4 Amendments

    The second element of CARB's request is amendments to its nonroad
regulations that include CI engines used in tractors, excavators,
dozers, scrapers, portable generators, transport refrigeration units,
irrigation pumps, welders, compressors, scrubbers, and sweepers.\7\ In
1992, CARB approved a regulation to control exhaust emissions from
heavy-duty off-road CI engines 175 hp and above.\8\ EPA granted
authorization in 1995.\9\ In 2000 CARB harmonized California's emission
standards and test procedures to federal standards that EPA promulgated
in 1998 for the same nonroad CI engine categories (Tier 1 through Tier
3).\10\ In 2004-2005 CARB generally harmonized California's Tier 4
standards to the federal Tier 4 standards for these same off-road CI
engines that EPA adopted in 2004.\11\ EPA confirmed that the 2000
amendments to the smallest category of engines (less than 19 kW) were
within the scope of previous authorizations.\12\ EPA granted full
authorizations for the 2004-2005 amendments as they affected new off-
road CI engines less than 19 kW, and for the 2000 and 2004-2005
amendments as they affected new off-road CI engines for the other two
power categories (19 kW-130 kW and greater than 130 kW).\13\
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    \7\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 4.
    \8\ Id.
    \9\ 60 FR 37440 (July 5, 1995).
    \10\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 5.
    \11\ Id.
    \12\ 75 FR 8056 (February 23, 2010).
    \13\ Id.
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C. 2011 Certification Test Fuel Amendments

    The third element of CARB's request is amendments to its Exhaust
Emission Certification Test Fuel for Off-Road SI

Engines, Equipment, and Vehicles regulations. Prior to these
amendments, California's SORE and Large Spark Ignition (LSI) test
procedures allowed gasoline-fueled, SI engines to be tested for
compliance with certification exhaust standards using either Indolene
or Phase 2 California Reformulated Gasoline (CaRFG2) \14\ as an option
to federally specified test fuels. Recreational Marine engines were
permitted to use CaRFG2, federal Indolene, or the fuel specified in
Table 3 of Appendix A to 40 CFR part 91, subpart D. Off Highway
Recreational Vehicles (OHRV) that were categorized as off-road
motorcycles were required to certify using Indolene. OHRVs that were
categorized as go-karts and specialty vehicles were allowed to certify
using either Indolene or CaRFG2, and OHRVs that were categorized as
all-terrain vehicles (ATVs) were primarily required to use Indolene,
but under certain circumstances were allowed to certify using
CaRFG2.\15\
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    \14\ Phase 1 CaRFG, which was implemented in 1992, eliminated
lead from gasoline and set regulations for deposit control additives
and reid vapor pressure (RVP). Phase 2 CaRFG (CaRFG2), which was
implemented in 1996, set specifications for sulfur, aromatics,
oxygen, benzene, T50, T90, Olefins, and RVP and established a
Predictive Model. Phase 3 CaRFG (CaRFG3), which was implemented in
1999, eliminated methyl-tertiary-butyl-ether from California
gasoline.
    \15\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 9.
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    The initial SORE regulation and the 1993 amendments to the SORE
regulation allowed manufacturers to utilize either Indolene or
California Phase 1 fuel as test fuel for certification.\16\ EPA granted
California a full authorization for the initial SORE regulation and the
1993 amendments.\17\ In 1994 CARB amended the SORE regulation to
provide manufacturers the option to certify SORE engines using CaRFG2
that was consistent with the certification test fuel specified for on-
road motor vehicles. EPA confirmed that the 1994 amendment was within
the scope of the previous authorizations.\18\ In 2008, EPA confirmed
that allowing the use of 10-percent ethanol-blend of gasoline (E10) as
a certification fuel for SORE was within the scope of previous
authorizations.\19\
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    \16\ Id. at 8.
    \17\ 60 FR 37440 (July 20, 1995).
    \18\ 65 FR 69763 (November 20, 2000).
    \19\ 80 FR 26041 (May 6, 2015).
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    The initial LSI regulation specified that the certified gasoline
test fuels for LSI engines were either Indolene or CaRFG2. EPA granted
California a new authorization for the initial LSI regulation on May
15, 2006.\20\
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    \20\ 71 FR 29623 (May 23, 2006).
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    The initial CARB Marine SI Engine regulation applicable to 2001 and
later model year outboard SI marine engines and personal watercraft
engines established test procedures that were virtually identical to
those in the federal SI Marine Engine regulations. In 2002 CARB adopted
regulations establishing exhaust emission standards and related
certification and test procedures for 2003 and later model year SI
inboard and sterndrive marine engines that specified the same
certification test fuels as those applicable to outboard engines and
personal water craft.\21\ EPA granted California an authorization for
these regulations in 2007.\22\
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    \21\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 9.
    \22\ 72 FR 14546 (March 28, 2007).
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    EPA granted California a new authorization for the initial OHRV
regulation, which included initial test fuel certification
requirements, in 1996,\23\ and confirmed that 1996 amendments to the
OHRV regulation were within the scope of the initial authorization in
2000.\24\
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    \23\ 61 FR 69093 (December 31, 1996).
    \24\ 65 FR 69763 (November 20, 2000).
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D. California's Authorization Request

    By letter dated June 13, 2014, CARB submitted a request to EPA
pursuant to section 209(e) of the Act for authorization of its 2011
SORE amendments, 2011 Tier 4 amendments, and 2011 Certification Test
Fuel amendments (with all three sets of amendments collectively known
as the ``2011 Amendments''). CARB sought EPA's confirmation that the
2011 Amendments fell within the scope of EPA's previous authorizations,
or, in the alternate, a full authorization for those amendments.
1. 2011 SORE Amendments
    CARB approved the 2011 SORE amendments at issue on December 16,
2011, and adopted them on October 25, 2012.\25\ The 2011 SORE
amendments became operative on January 10, 2013.\26\ The 2011 SORE
amendments modify California's existing SORE test procedures by
aligning California procedures to be consistent with recent amendments
by EPA to the federal certification and exhaust emission testing
requirements at 40 CFR parts 1054 and 1065.\27\ Part 1054 contains
certification protocols, production-line testing requirements, credit-
generation allowances, and other related provisions applicable to
federally certified engines. Since CARB had previously promulgated
California-specific versions of these provisions for SORE engines, the
2011 SORE amendments adopted the language of CFR part 1054, but with
modifications that substitute California's specific emission standards,
production-line testing requirements and credit-allowances for the
corresponding federal provisions.\28\ Part 1065 specifies the ``state-
of-the-art'' testing equipment, systems, and processes that must be
utilized in conducting emissions testing of applicable engines. The
2011 SORE amendments align California test procedures for 2013 and
later model year engines with the requirements specified in Part
1065.\29\
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    \25\ See EPA-HQ-OAR-2014-0535-0008, ``Enclosure 5 CARB
Resolution 11-41'', and EPA-HQ-OAR-2014-0535-0009, ``Enclosure 6
Executive Order R-12-005''.
    \26\ Id.
    \27\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011''.
    \28\ Id.at 11.
    \29\ Id.at 11.
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2. 2011 Tier 4 Amendments
    CARB approved the Tier 4 amendments at issue on December 16, 2011,
and adopted them on October 25, 2012.\30\ The 2011 Tier 4 amendments
became operative on January 10, 2013.\31\ The 2011 Tier 4 amendments
enhance the harmonization of CARB's exhaust emission requirements for
new off-road CI engines with the corresponding federal emissions
requirements for nonroad CI engines set forth in CFR parts 1039, 1065,
and 1068.\32\ EPA most recently amended these Parts in 2011.\33\ The
2011 Tier 4 amendments correct clerical errors, standardize measurement
specifications, calibrations, and instrumentation, remove unnecessarily
burdensome reporting requirements, and provide additional compliance
flexibility options.\34\ The 2011 Tier 4 amendments also incorporate
EPA's anti-stockpiling provisions, which help ensure the realization of
projected emission benefits, and also establish a new interim Tier 4
combined hydrocarbon plus oxides of nitrogen emission standard that has
the potential

to provide additional emission benefits.\35\
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    \30\ See EPA-HQ-OAR-2014-0535-0008, ``Enclosure 5 CARB
Resolution 11-41'', and EPA-HQ-OAR-2014-0535-0009, ``Enclosure 6
Executive Order R-12-005''.
    \31\ Id.
    \32\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 12.
    \33\ 76 FR 37977 (June 28, 2011).
    \34\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 13-18.
    \35\ Id. at 2.
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3. 2011 Certification Test Fuel Amendments
    The 2011 Certification Test Fuel amendments modify the
certification test fuel requirements for off-road spark ignition,
gasoline-fueled engines to allow the use of 10-percent ethanol-blend of
gasoline (E10) as a certification fuel. The use of the E10
certification fuel is allowed as an option for certification exhaust
emission testing of new gasoline-fueled SORE, LSI, Recreational Marine,
and OHRV off-road categories from the 2013 through 2019 model years,
and is mandatory for certification exhaust emission testing of these
categories beginning with the 2020 model year.\36\
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    \36\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 18.
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E. 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.\37\ 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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    \37\ 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.\38\ EPA revised these regulations in
1997.\39\ 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.\40\
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    \38\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
    \39\ 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.
    \40\ See supra note 12. EPA has interpreted 209(b)(1)(C) in the
context of section 209(b) motor vehicle waivers.
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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 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).\41\ 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),\42\ 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:
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    \41\ 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.''
    \42\ 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.\43\
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    \43\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (August 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.\44\ 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).
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    \44\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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F. Within-the-Scope Determinations

    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.\45\
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    \45\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
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G. 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. This has led EPA to state:

    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.\46\
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    \46\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision
Document at 64 (58 FR 4166 (January 13, 1993)).

    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.\47\
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    \47\ 40 FR 23104; 58 FR 4166.
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    The House Committee Report explained as part of the 1977 amendments
to the Clean Air Act, where Congress had the opportunity to restrict
the waiver provision, it elected instead to explain California's
flexibility to adopt a complete program of motor vehicle emission
controls. The amendment is intended to ratify and strengthen the
California waiver provision and to affirm the underlying intent of that
provision, i.e., to afford California the broadest possible discretion
in selecting the best means to protect the health of its citizens and
the public welfare.\48\
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    \48\ MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 294, 95
Cong., 1st Sess. 301-02 (1977).
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H. Burden and Standard of Proof

    As the U.S. Court of Appeals for the DC 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.\49\

    \49\ MEMA I, supra note 19, at 1121.
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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.' '' \50\ Therefore, the
Administrator's burden is to act ``reasonably.'' \51\
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    \50\ Id. at 1126.
    \51\ Id. at 1126.
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    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.\52\
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    \52\ 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.'' \53\
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    \53\ Id.
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    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.\54\ 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.\55\
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    \54\ Id.
    \55\ Id.
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    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.''
\56\
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    \56\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
---------------------------------------------------------------------------

I. EPA's Administrative Process in Consideration of California's
Amendment Requests for Authorization

    On November 21, 2014, EPA published a Federal Register notice
announcing its receipt of California's

authorization request. In that notice, EPA invited public comment on
the 2011 SORE amendments, the 2011 Tier 4 amendments, and 2011
Certification Test Fuel amendments (collectively known as the 2011
Amendments) and an opportunity to request a public hearing.\57\
---------------------------------------------------------------------------

    \57\ See ``California State Nonroad Engine Pollution Control
Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road
Compression-Ignition Regulations; Exhaust Emission Certification
Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and
Vehicles Regulations; Request for Within-the-Scope and Full
Authorization; Opportunity for Public Hearing and Comment,'' 79 FR
69465 (November 21, 2014).
---------------------------------------------------------------------------

    EPA requested comment on the 2011 Amendments, as follows: (1)
Should California's 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 making a full
authorization determination?
    EPA received no written comments. Additionally, EPA received no
requests for a public hearing. Consequently, EPA did not hold a public
hearing.

II. Discussion

A. California's 2011 SORE Amendments

    The 2011 SORE amendments incorporate provisions of 40 Code of
Federal Regulations (CFR) Parts 1054 and 1065 into the test procedures
applicable to 2013 and later model year engines, and incorporate
citations to the newly modified test procedures. The 2011 SORE
amendments dealt with three specific topics: (1) Improved alignment
with 40 CFR part 1054; (2) improved alignment with 40 CFR part 1065;
and (3) amendments to CA-Part 1065 that maintain differences between
California and EPA test procedures. CARB asserts that the 2011 SORE
amendments do not affect the stringency of the exhaust emission
standards and associated test procedures for SORE engines.
1. Improved Alignment With Part 1054
    Part 1054 contains certification protocols, production-line testing
requirements, credit-generation allowances, and other related
provisions applicable to federally certified engines. Since CARB had
already promulgated California-specific versions of these provisions
for SORE engines, the 2011 SORE amendments adopted language similar to
Part 1054, but with modifications that substitute California's specific
emission standards, production-line testing requirements and credit-
generations allowances for the corresponding federal provisions.\58\
---------------------------------------------------------------------------

    \58\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 11.
---------------------------------------------------------------------------

2. Improved Alignment With Part 1065
    Part 1065 specifies the ``state-of-the-art'' testing equipment,
systems, and processes that must be utilized in conducting emissions
testing of applicable engines. The 2011 SORE amendments largely align
the test procedures applicable to 2013 and later model year engines
with the requirements specified in Part 1065, and will therefore
prevent the need for manufacturers to conduct separate emissions tests
for certifying engines with EPA and CARB.\59\ Additionally, CARB states
that a majority of engine manufacturers had already upgraded their test
equipment in order to be compliant with Part 1065, and not aligning
California and federal test procedures would mean that the use of the
existing California test procedures would become increasingly
impractical for manufacturers, independent testing facilities, and
CARB.\60\ CARB adopted Part 1065 into the SORE test procedures except
for the modifications discussed below.
---------------------------------------------------------------------------

    \59\ Id. at 11.
    \60\ Id.
---------------------------------------------------------------------------

3. Amendments to CA-Part 1065 that Maintain Differences between
California and EPA Test Procedures
    The 2011 SORE amendments maintain California-specific requirements
applicable to new 2013 and later model year SORE engines in the
following areas: Allowance for supplemental engine cooling, measurement
of particulate matter (PM) emissions from two-stroke engines, and
exhaust emission certification test fuel requirements (discussed later
in the decision).\61\ CARB believes that the existing California
provisions in the SORE test procedures regarding supplemental cooling
are more representative of in-use conditions than the corresponding
federal provision, and are needed to maintain the stringency of
California's existing test procedures. The California provisions
require that manufacturers justify the need for and the use of any
auxiliary fans used to provide supplemental cooling, and further
require that manufacturers demonstrate that the supplemental cooling is
representative of in-use engine operation. CARB's SORE emission
standards include a PM emissions standard for two-stroke engines while
EPA's small nonroad engine standards do not.\62\ California's existing
regulations provide manufacturers the option of demonstrating
compliance with the PM standard for two-stroke engines by using
measured hydrocarbon emissions as a surrogate in lieu of determining
actual PM emission levels.\63\ CARB determined that extending this
option was warranted as it provides manufacturers flexibility in
conducting the testing required for demonstrating emissions compliance,
without affecting the stringency of the current PM emission standards.
---------------------------------------------------------------------------

    \61\ Id. at 12.
    \62\ Id.
    \63\ Id.
---------------------------------------------------------------------------

B. California's 2011 Tier 4 Amendments

    The 2011 Tier 4 amendments enhance the harmonization of CARB's
exhaust emission requirements for new off-road CI engines with the
corresponding federal emissions requirements for nonroad CI engines in
40 CFR parts 1039, 1065, and 1068, as most recently amended by EPA in
2011.\64\ CARB states that the amendments correct clerical errors,
standardize measurement specifications, calibrations, and
instrumentation, remove unnecessarily burdensome reporting
requirements, and provide additional compliance flexibility options
without sacrificing air quality benefits.\65\ The 2011 Tier 4
amendments dealt with three specific areas: (1) Modifications to Tier 4
off-road CI exhaust emission standards; (2) updated test procedures;
and (3) amendments that maintain needed differences between California
and EPA Nonroad CI programs.
---------------------------------------------------------------------------

    \64\ Id. at 13.
    \65\ Id.
---------------------------------------------------------------------------

1. Modifications to Tier 4 Off-Road CI Exhaust Emission Standards
    The 2011 Tier 4 amendments aligned with the federal alternate
combined oxides of nitrogen and non-methane hydrocarbons (ALT
NOX + NMHC) standards and the corresponding family emission
limit (FEL) caps for Tier 4 engines ranging from 56 kW through 560
kW.\66\ The amendments corrected clerical errors that unintentionally
limited the years of applicability for several alternative FEL caps
erroneously identified in the regulations and test procedures. The
California Tier 4 Off-Road CI regulation and the federal Tier

4 nonroad CI regulation allowed engine manufacturers to continue
producing a small number of Tier 3 off-road CI engines using emission
credits after the Tier 4 standards began.\67\ However, both the
original EPA and California regulations inadvertently hindered
manufacturers from using these certification allowances because the
Tier 4 averaging programs did not allow manufacturers to show
compliance with the existing 0.19 g/kW-hr NMHC standard using credits.
To correct this, the 2011 Tier 4 amendments establish new Tier 4
alternative combined NOX + NMHC standards for off-road CI
engines that align with the amendments to EPA's nonroad CI regulation
in 2007, which similarly provides manufacturers the option to use
credits to show compliance with the new alternative NOX +
NMHC standards for engines ranging from 56 kW through 560 kW.\68\ The
2011 Tier 4 amendments also revise the start dates for the ALT 20%
NOX FEL caps to correct an inconsistency in a regulatory
table regarding the period of applicability for certifying engines to
the ALT 20% NOX FEL caps that stated the period was only one
or two years to the correct four-year period.\69\
---------------------------------------------------------------------------

    \66\ Id.
    \67\ Id.
    \68\ Id.
    \69\ Id. at 14.
---------------------------------------------------------------------------

2. Updated Test Procedures
    The 2011 Tier 4 amendments primarily revise California's Tier 4
off-road CI engine test procedures to align them with the modifications
to the corresponding federal nonroad CI engine test procedures that
have been enacted by EPA since 2005 to improve the accuracy and
precision of the measurement and reporting of emissions data. The new
California off-road CI engine test procedures are comprised of three
separate documents that largely incorporate provisions of the federal
test procedures contained in 40 CFR parts 1039, 1065, and 1068, but
that also incorporate several California-specific modifications.\70\
---------------------------------------------------------------------------

    \70\ Id.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments incorporate EPA's June 28, 2011
modifications to Part 1039 into the new test procedure entitled
``California Exhaust Emission Standards and Test Procedures for New
2011 and Later Tier 4 Off-Road Compression Ignition Engines, Part I-
D''. Included among the alignments are modification of the criterion
for selecting engine families regarding engine cylinder arrangement
(Sec.  1039.230(b)(7)), removal of unnecessary and/or redundant
labeling and notification instructions regarding the equipment
manufacturer flexibility program (Sec.  1039.625), correction of
clerical errors that inadvertently elevated the minimum standard for
equipment flexibility engines beyond that originally intended (Sec.
1039.625(e)(3)), and clarification regarding the rounding of Averaging,
Banking, and Trading credits (Sec.  1039.705(b)).\71\
---------------------------------------------------------------------------

    \71\ Id. at 15.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments deleted CARB's existing CA-Part 1065-
based test procedures and created a brand-new version in Part I-E based
solely on CARB's modifications to EPA's 40 CFR 1065 as it existed on
June 28, 2011.\72\ The California alignments with 40 CFR 1065 included
in the 2011 Tier 4 amendments are provisions for using and calculating
an optional declared speed value (Sec.  1065.510(f)(3)(i)), and
provisions regarding the standardization of calculating exhaust
restriction set points (Sec.  1065.130(h)).\73\
---------------------------------------------------------------------------

    \72\ Id.
    \73\ Id.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments incorporate EPA's modifications to 40
CFR part 1068 into the new test procedure entitled ``California Exhaust
Emission Standards and Test Procedures for New 2011 and Later Tier 4
Off-Road Compression Ignition Engines, Part I-F''. The 2011 Tier 4
amendments included alignments regarding allowance for distributors to
replace incorrect labels prior to sale of the engine to an ultimate
purchaser (Sec.  1068.101(b)(7)(i)(D)), incorporation of provisions
related to the duration and applicability of Executive Orders (Sec.
1068.103(c)), incorporation and clarification of anti-stockpiling
provisions (Sec.  1068.103 and 105), revisions to the label content for
replacement engines (Sec.  1068.240), clarification of the provisions
for shipping engines independently of required after treatment and for
delegated final assembly (Sec.  1068.260 and 261), clarification that
defect reporting applies only to regulated pollutants and revision of
thresholds for filing reports (Sec.  1068.501), and incorporation of
the federal definition for ``Date of Manufacture'' (Sec.
1068.801).\74\
---------------------------------------------------------------------------

    \74\ Id. at 16.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments also included a new section that
establishes an anti-stockpiling provision that is consistent with
recently added federal provisions in 40 CFR 1068.103 and 1068.105 which
address intentional over-production of engines prior to a year in which
a change in the emissions standards occur.\75\ The new section makes
clear that manufacturers cannot deviate from normal production and
inventory practices to circumvent the regulations.\76\
---------------------------------------------------------------------------

    \75\ Id.
    \76\ Id.
---------------------------------------------------------------------------

3. Amendments That Maintain Needed Differences Between California and
EPA Nonroad CI Programs
    The 2011 Tier 4 amendments also maintain differences from the
federal provisions that are needed to support California's unique air
quality programs. These differences primarily consist of documentation
requirements. CARB states that none of the differences present any
technical obstacles for off-road engine manufacturers.\77\ The
differences include: enhanced emissions control labeling beyond that
required on federal labels to include information such as the
certification power category or an explicit designation of the
emissions tier to which the engine conforms; removing the prior
assurance to manufacturers that preliminary approvals of certification
will not usually be reversed absent the discovery of new information
contrary to the findings that resulted in the preliminary approval; not
exempting a small number of replacement engines from engine labeling
requirements; and not incorporating EPA's amended definitions of
``engine,'' which define an engine to be an engine block with an
installed crankshaft and ``partially complete engine'' as defined in 40
CFR 1068.30 and 1068.240.\78\
---------------------------------------------------------------------------

    \77\ Id. at 17.
    \78\ Id. at 17, 18.
---------------------------------------------------------------------------

C. California's 2011 Certification Test Fuel Amendments

    The 2011 Certification Test Fuel amendments modify the
certification test fuel requirements for off-road SI, gasoline-fueled
engines to allow the use of 10-percent ethanol-blend of gasoline (E10)
as a certification fuel.\79\ The use of the E10 certification test fuel
is allowed as an option for certification exhaust emission testing of
new gasoline-fueled LSI, SORE, OHRV, and Recreational Marine off-road
categories from the 2013 through the 2019 model years, and is mandatory
for certification exhaust emission testing of these categories
beginning with the 2020 model year.\80\ The 2011 Certification Test
Fuel amendments also provide manufacturers the option of using other
renewable fuel blends that have been certified by CARB as yielding test

results equivalent to, or more stringent than those resulting from E10,
and which are appropriate for the certification of small off-road
engines beginning with the 2013 model year.\81\ The amendments maintain
test fuel consistency between on-road motor vehicles and most of the
off-road categories and establish complete consistency between the off-
road categories' certification test fuels and commercially available
fuels.\82\
---------------------------------------------------------------------------

    \79\ Id. at 18.
    \80\ Id.
    \81\ Id.
    \82\ Id.
---------------------------------------------------------------------------

D. Within-the-Scope Analysis

    California requested that the Administrator confirm that the 2011
Amendments detailed above are within the scope of previously granted
authorizations.\83\ California asserted that all three sets of 2011
amendments met all three within-the-scope criteria, i.e. that the
amendments: (1) Do not undermine the original protectiveness
determination underlying California's regulations; (2) do not affect
the consistency of the regulations with section 202(a); and (3) do not
raise any new issues affecting the prior authorizations.\84\ We
received no adverse comments or evidence suggesting a within-the-scope
analysis is inappropriate, or that any of the three sets of 2011
amendments fail to meet any of the three criteria for within-the-scope
confirmation.
---------------------------------------------------------------------------

    \83\ This request excluded the amendment that establishes the
Tier 4 alternative NOx + NMHC standards for off-road CI engines
because this amendment will only be utilized by manufacturers that
have accumulated emission credits. Such standards do not constitute
mandatory compliance requirements, but instead provide a compliance
alternative and do not require authorization. See Motor and
Equipment Mfrs. Ass'n, Inc. v. Environmental Protection Agency (MEMA
II), 627 F.2d 1128, 1132 (D.C. Cir. 1979)(a regulatory compliance
option is only a mandate that can result in a denial of a waiver if
the regulation does not specify another technically feasible
compliance option.)
    \84\ Id. at 21.
---------------------------------------------------------------------------

    In regard to the first within-the-scope criterion, CARB found that
the 2011 Amendments did not cause the California emissions standards,
in the aggregate, to be less protective of public health and welfare
than applicable federal standards. California asserts their
protectiveness determination is not arbitrary or capricious, and that
the elements of the 2011 Amendments do not affect the stringency of the
previously authorized SORE or Tier 4 Off-Road CI emission standards and
associated test procedures, or the other regulations and test
procedures affected by these amendments (LSI, Recreational Marine, and
OHRV).\85\ CARB asserts that, therefore, the subject regulations and
test procedures continue to be at least as protective of public health
and welfare as the federal nonroad emissions standards and test
procedures.
---------------------------------------------------------------------------

    \85\ Id.
---------------------------------------------------------------------------

    Based on the record before us and in the absence of any evidence to
the contrary, we cannot find that California's protectiveness
determination regarding the implementation of 2011 Amendments is
arbitrary or capricious.
    In regard to the second within-the-scope criterion, the 2011
Amendments do not attempt to regulate new motor vehicles or motor
vehicles engines and so are consistent with section 209(a). They
likewise did not attempt to regulate any of the permanently preempted
engines or vehicles, and so are consistent with section 209(e)(1).
Finally, they did not cause any technological feasibility issues for
manufacturers or cause inconsistency between state and federal test
procedures, per section 209(b)(1)(C). No manufacturer raised technical
feasibility or lead time concerns regarding the 2011 Amendments.\86\
Additionally, the 2011 Amendments are later than EPA's corresponding
amendments to the federal nonroad regulations and associated test
procedures. Given these facts, EPA cannot find that the 2011 Amendments
are not technically feasible or do not provide sufficient lead
time.\87\ CARB enacted the 2011 Amendments at the behest of
manufacturers who had already implemented modifications to their
emissions facilities that are required by EPA's corresponding
amendments to the federal nonroad regulations. No technical feasibility
or lead time concerns were raised regarding the elements of the 2011
Certification Test Fuel amendments either.\88\ These amendments
establish complete consistency between the certification and the
commercially available fuels for off-road engines subject to
California's SORE, LSI, Recreational Marine, and OHRV regulations.\89\
Manufacturers of off-road spark-ignition, gasoline-fueled engines have
needed to account for the usage of E10 in their engines since December
31, 2009, and those engines have been capable of being emissions tested
using E10 by that date, which precedes the 2020 model-year requirement
to use E10 by ten years.\90\
---------------------------------------------------------------------------

    \86\ Id. at 22.
    \87\ Id.
    \88\ Id.
    \89\ Id. at 23.
    \90\ Id.
---------------------------------------------------------------------------

    The 2011 Amendments present no issue of incompatibility between
California and federal test procedures, as they essentially harmonize
California's test procedures associated with the SORE, Off-Road CI
Engine, LSI, Recreational Marine, and OHRV regulations with the
corresponding federal test procedures. The corresponding federal
regulations for such engines have already designated E10 as a test fuel
for exhaust emissions testing, so the amendments do not impose
inconsistent certification requirements so as to make manufacturers
unable to meet both California and federal requirements with one test
vehicle or engine.\91\
---------------------------------------------------------------------------

    \91\ Id.
---------------------------------------------------------------------------

    In regard to the third within-the-scope criterion, California
stated that it is not aware of any new issues presented by the 2011
Amendments that affect the previously granted authorizations for the
SORE, Off-Road CI Engine, LSI, Recreational Marine, or OHRV
regulations, and EPA has received no evidence to the contrary.\92\ We
therefore do not find any new issues raised by the amendments.
---------------------------------------------------------------------------

    \92\ Id.
---------------------------------------------------------------------------

    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 the 2011 Amendments are confirmed as within
the scope of previous EPA authorizations of California's SORE, Off-Road
CI Engine, LSI, Recreational Marine, or OHRV regulations.

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 the 2011 amendments to CARB's SORE
regulations, Tier 4 Off-Road CI regulations, and Exhaust Emission
Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment,
and Vehicles regulations described above and CARB's submissions for EPA
review, EPA is taking the following actions.
    First, EPA confirms that California's 2011 amendments modifying its
SORE regulations is within the scope of prior authorizations. Second,
EPA confirms that California's amendment modifying its Tier 4 Off-Road
CI regulations is within the scope of prior authorizations. Third, EPA
confirms that California's amendment modifying its Exhaust Emission
Certification Test Fuel for Off-Road Spark-Ignition Engines,

Equipment, and Vehicles regulations is within the scope of prior
authorizations.
    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 February 9, 2016. 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: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-31189 Filed 12-10-15; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register: August 5, 2008 (Volume 73, Number 151)]
[Notices]
[Page 45433]
[DOCID:fr05au08-46]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. QF08-632-000]

Haverhill North Coke Company; Notice of Filing

July 28, 2008
    Take notice that on July 14, 2008, Haverhill North Coke Company,
filed with the Commission a notice of self-certification of a facility
as a qualifying cogeneration facility pursuant to 18 CFR 292.207(a) of
the Commission's regulations.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://
www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on August 13, 2008.

Kimberly D. Bose,
Secretary.
[FR Doc. E8-17876 Filed 8-4-08; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 225 (Thursday, November 21, 2013)]
[Rules and Regulations]
[Pages 69773-69777]
[FR Doc No: 2013-27991]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R06-OAR-2006-0593; FRL-9903-00-Region 6]

Approval and Promulgation of Implementation Plans; Texas; Control
of Air Pollution by Permits for New Construction or Modification;
Permits for Specific Designated Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking a direct final action to approve portions of two
revisions to the Texas State Implementation Plan (SIP) concerning the
Permits for Specific Designated Facilities Program, also referred to as
the FutureGen Program. EPA has determined that the portions of these
SIP revisions specific to the FutureGen Program submitted on March 9,
2006 and July 2, 2010, comply with the Clean Air Act and EPA
regulations and are consistent with EPA policies. This action is being
taken under section 110 and parts C and D of the Act.

DATES: This direct final rule is effective on January 21, 2014 without
further notice, unless EPA receives relevant adverse comment by
December 23, 2013. If EPA receives such comment, EPA will publish a
timely withdrawal in

the Federal Register informing the public that this rule will not take
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2006-0593, by one of the following methods:
    (1) www.regulations.gov: Follow the on-line instructions for
submitting comments.
    (2) Email: Ms. Adina Wiley at<EMAIL_ADDRESS>    (3) Mail or Delivery: Ms. Adina Wiley, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0593. EPA's policy is that all comments received 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 the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or email, if you believe that it is
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means that 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 be automatically 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 along with any disk or CD-ROM
submitted. 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 and any form of encryption and should 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.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment with
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph
below or Mr. Bill Deese at<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning
today's direct final action, please contact Ms. Adina Wiley (6PD-R),
Air Permits Section, Environmental Protection Agency, Region 6, 1445
Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone
(214) 665-2115; fax number<PHONE_NUMBER>; email address
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

    I. What action is EPA taking?
    II. What did Texas submit?
    III. EPA's Evaluation
    IV. Final Action
    V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is taking a direct final action to approve portions of two
revisions to the Texas State Implementation Plan (SIP) concerning the
Permits for Specific Designated Facilities Program, also referred to as
the FutureGen Program. EPA has determined that the portions of these
SIP revisions specific to the FutureGen Program submitted on March 9,
2006 and July 2, 2010, comply with the Clean Air Act and EPA
regulations and are consistent with EPA policies. This action is being
taken under section 110 and parts C and D of the Act.
    We are publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no relevant adverse
comments. As explained in this action and our accompanying technical
support documents (TSD), we are finding this action noncontroversial
because the FutureGen permitting and public notice provisions can no
longer be used in Texas, but we are proceeding with a final action to
fulfill our statutory obligations under the CAA. However, in the
proposed rules section of this Federal Register publication, we are
publishing a separate document that will serve as the proposal to
approve the SIP revision if relevant adverse comments are received.
This rule will be effective on January 21, 2014 without further notice
unless we receive relevant adverse comment by December 23, 2013. If we
receive relevant adverse comments, we will publish a timely withdrawal
in the Federal Register informing the public that the rule will not
take effect. We will address all public comments in a subsequent final
rule based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
now. Please note that if we receive adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, we may adopt as final those provisions
of the rule that are not the subject of an adverse comment.

II. What did Texas submit?

    FutureGen is a United States Department of Energy (DOE) program
designed to promote the advancement and development of new
technologies. FutureGen refers to a combination of technologies for
carbon sequestration, carbon dioxide enhanced oil recovery, electric
generation, and hydrogen production. FutureGen is a technology
demonstration project that is a partnership between industry
participants and the DOE.
    The 79th Texas Legislature passed House Bill 2201 (HB 2201) in
2005, and concluded that the FutureGen technology demonstration project
could result in major economic, social and environmental benefits for
Texas. In order to help Texas compete for federal funding associated
with the FutureGen Project, the Texas Legislature passed HB 2201 to
provide for streamlined permitting by specifically exempting FutureGen
projects from the contested case hearing process.

March 9, 2006 SIP Submittal

    Pursuant to the directive of Texas HB 2201, on February 22, 2006,
the TCEQ adopted the new provisions to Chapter 116 to establish
streamlined permitting procedures and rules for the FutureGen Project.
At the same time, the TCEQ also adopted public participation provisions
for the FutureGen Project to provide for the exemption from contested
case hearing. These new provisions were submitted to EPA as a SIP
revision on March 9, 2006 by the Chairman of the TCEQ, Ms. Kathleen
Hartnett White, as Rule Project No. 2005-053-091-PR.

July 2, 2010 SIP Submittal

    The TCEQ subsequently adopted revisions to the public notice
provisions for the entirety of the Texas Air Permit program on June 2,
2010. The Chairman of the TCEQ, Mr. Bryan W. Shaw, Ph.D., submitted
these revised public participation rules as a revision to the Texas SIP
on July 2, 2010 as part of Rule

Project No. 2010-004-039-LS. On this date, the TCEQ also withdrew the
previous public notice SIP submittals, including the FutureGen specific
public notice provisions submitted on March 9, 2006. Therefore, the
public notice provisions specific to the FutureGen Program that remain
before EPA for action were submitted on July 2, 2010.
    The July 2, 2010 SIP submittal established the public participation
provisions for the majority of the Texas air permitting programs,
including applications for the FutureGen Program. On December 13, 2012,
EPA proposed approval of most of the public participation rules
submitted on July 2, 2010. See 77 FR 74129. However, in that proposed
approval we severed and took no action on the portions of the public
notice provisions establishing applicability and response to comment
provisions specific to FutureGen Program applications at 30 TAC
39.402(a)(10), 39.419(e)(3) and 39.420(h). We deferred action on these
provisions until such time as we evaluated the underlying permit
provisions for the FutureGen Program at 30 TAC Chapter 116, Subchapter
L. See 77 FR 74129. EPA is addressing the July 2, 2010, submittal of 30
TAC 39.402(a)(10), 39.419(e)(3) and 39.420(h) through today's direct
final action.

III. EPA's Evaluation

    We provide our evaluation for this rulemaking in this section.
Additional information to support our evaluation is available in the
TSDs for this rulemaking, which are available in the rulemaking docket.
    Our evaluation shows that a FutureGen Project could be a PSD, NNSR
or minor NSR source; therefore, we reviewed the program against the
federal permitting and public notice requirements and the existing SIP-
approved provisions in Texas. The FutureGen permitting provisions
require an applicant to demonstrate compliance with all requirements
for PSD and NNSR permitting; which would require the FutureGen
applicant to also comply with the public notice rules applicable to PSD
and NNSR permitting.\1\ Additionally, the FutureGen permitting
provisions require an applicant to demonstrate protection of public
health and welfare by complying with the Texas Health and Safety Code
and all applicable rules and regulations of the TCEQ. Accordingly, we
find that the FutureGen Program permitting and public notice rules as
submitted March 9, 2006 and July 2, 2010 are consistent with the
requirements of the CAA and EPA's regulations, and protect the
integrity of the Texas SIP.
---------------------------------------------------------------------------

    \1\ EPA proposed approval of revised public notice rules for
Texas air permitting on December 13, 2012. See 77 FR 74129.
---------------------------------------------------------------------------

    Since the adoption of Texas HB 2201 and the adoption and submittal
of the associated Texas SIP provisions, the FutureGen Project has been
awarded to the State of Illinois. Additionally, the DOE decided to stop
funding the FutureGen Project in 2008. On August 5, 2010, the DOE
introduced FutureGen 2.0; a reinvention of the original FutureGen
Project concept still planned for Illinois. Therefore, the submitted
rules establishing the permitting and public notice rules for the
FutureGen Project likely will not be used in Texas because the
underlying FutureGen Project is not in existence in Texas.
    EPA, however, has a statutory obligation to review and act upon SIP
submittals pursuant to CAA 110(k). Because the State of Texas submitted
the regulatory provisions for the FutureGen Project for approval into
the Texas SIP, and has not subsequently requested to withdraw the
program from our consideration, we are required to take action even
though the program is superfluous to the SIP. Our authority under CAA
110(k)(4) does not provide us the ability to disapprove a program
solely because it is no longer needed. Neither can we take steps to
return the superfluous provisions to the state absent a direct request.
Therefore, EPA must proceed with this proposed action to satisfy our
obligations under the CAA.

IV. Final Action

    Under section 110 and parts C and D of the Act, and for the reasons
stated above, EPA is taking direct final action to approve revisions to
the Texas SIP submitted on March 9, 2006 and July 2, 2010 for the
Permits for Specific Designated Facilities Program, or the FutureGen
Project, as consistent with the CAA and EPA's policy and guidance.
Specifically, EPA is approving the following new provisions
establishing the FutureGen permitting requirements as submitted on
March 9, 2006: 30 TAC 116.1400, 116.1402, 116.1404, 116.1406, 116.1408,
116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422, 116.1424,
116.1426 and 116.1428. EPA is approving the new provisions establishing
the FutureGen-specific public notice provisions at 30 TAC
39.402(a)(10), 39.419(e)(3) and 39.420(h) as submitted on July 2, 2010.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small

Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 21, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposed of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.

    Dated: November 1, 2013.

Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. In section 52.2270(c) the table titled ``EPA Approved Regulations in
the Texas SIP'' is amended as follows:
0
a. Immediately following the entry for Section 19.14, by adding a new
centered heading ``Chapter 39--Public Notice'' followed by a new
centered heading ``Subchapter H--Applicability and General Provisions''
followed by new entries for Sections 39.402, 39.419, and 39.420; and
0
b. Under Chapter 116 (Reg 6)--Control of Air Pollution by Permits for
New Construction or Modification, immediately following the entry for
Section 116.931, by adding a new centered heading for ``Subchapter L--
Permits for Specific Designated Facilities'' followed by new entries
for Sections 116.1400, 116.1402, 116.1404, 116.1406, 116.1408,
116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422, 116.1424,
116.1426 and 116.1428.
    The additions read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                      State
                                                    approval/
        State citation            Title/subject     submittal    EPA approval date           Explanation
                                                       date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                            Chapter 39--Public Notice
                               Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
Section 39.402...............  Applicability to       6/2/2010  11/21/2013 [Insert  SIP only includes
                                Air Quality                      FR page number      39.402(a)(10).
                                Permits and                      where document
                                Permit Amendments.               begins].
Section 39.419...............  Notice of              6/2/2010  11/21/2013 [Insert  SIP only includes
                                Application and                  FR page number      39.419(e)(3).
                                Preliminary                      where document
                                Determination.                   begins].
Section 39.420...............  Transmittal of the     6/2/2010  11/21/2013 [Insert  SIP only includes 39.420(h).
                                Executive                        FR page number
                                Director's                       where document
                                Response to                      begins].
                                Comments and
                                Decision.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                            Subchapter L--Permits for Specific Designated Facilities
----------------------------------------------------------------------------------------------------------------
Section 116.1400.............  Purpose...........    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1402.............  Applicability.....    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1404.............  Permit Required...    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1406.............  Compliance History    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1408.............  Definitions.......    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1410.............  Emissions Profile     2/22/2006  11/21/2013 [Insert  ............................
                                for FutureGen                    FR page number
                                Projects.                        where document
                                                                 begins].
Section 116.1414.............  Applications for      2/22/2006  11/21/2013 [Insert  ............................
                                Facilities that                  FR page number
                                are Components of                where document
                                a Designated                     begins].
                                Project.

Section 116.1416.............  Public Notice.....    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1418.............  Public                2/22/2006  11/21/2013 [Insert  ............................
                                Participation.                   FR page number
                                                                 where document
                                                                 begins].
Section 116.1420.............  Permit Fee........    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1422.............  General and           2/22/2006  11/21/2013 [Insert  ............................
                                Special                          FR page number
                                Conditions.                      where document
                                                                 begins].
Section 116.1424.............  Amendments and        2/22/2006  11/21/2013 [Insert  ............................
                                Alterations of                   FR page number
                                Permits Issued                   where document
                                Under This                       begins].
                                Subchapter.
Section 116.1426.............  Renewal of Permits    2/22/2006  11/21/2013 [Insert  ............................
                                Issued Under This                FR page number
                                Subchapter.                      where document
                                                                 begins].
Section 116.1428.............  Delegation........    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2013-27991 Filed 11-20-13; 8:45 am]
BILLING CODE 6560-50-P