[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27648]
[[Page Unknown]]
[Federal Register: November 8, 1994]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-5103-2]
California State Nonroad Engine and Equipment Pollution Control
Standards; Opportunity for Public Hearing
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of an opportunity for Public Hearing and Public Comment.
-----------------------------------------------------------------------
SUMMARY: The California Air Resources Board (CARB) has notified EPA
that it has adopted regulations for exhaust emission standards and test
procedures for utility and lawn and garden equipment engines (utility
engines) for 1995 and subsequent calendar years. CARB has requested
that EPA authorize CARB to enforce regulations pursuant to section
209(e) of the Clean Air Act (Act), as amended, 42 U.S.C. 7543. This
notice announces that EPA has tentatively scheduled a public hearing to
consider CARB's request and to hear comments from interested parties
regarding CARB's request for EPA's authorization and CARB's
determination that its regulations, as noted above, comply with the
criteria set forth in section 209(e). In addition, EPA is requesting
that interested parties submit written comments. Any party desiring to
present oral testimony for the record at the public hearing, instead
of, or in addition to, written comments, must notify EPA by November
28, 1994. If no party notifies EPA that it wishes to testify on the
nonroad emission amendments, then no hearing will be held and EPA will
consider CARB's request based on written submissions to the record.
DATES: EPA has tentatively scheduled a public hearing for December 6,
1994, beginning at 9:00 a.m., if any party notifies EPA by November 28,
1994 that it wishes to present oral testimony regarding CARB's request.
Any party may submit written comments regarding CARB's requests by
January 11, 1995 (this extended written comment period allows 30 days
plus an extra week for the holiday period). After November 28, 1994,
any person who plans to attend the hearing may call David Dickinson of
EPA's Manufacturers Operations Division at (202) 233-9256 to determine
if a hearing will be held.
ADDRESSES: If a request is received, EPA will hold the public hearing
announced in this notice at the Channel Inn (Captain's Room), 650 Water
Street, SW., Washington, DC 20024. Parties wishing to present oral
testimony at the public hearing should notify in writing, and if
possible, submit ten (10) copies of the planned testimony to: Charles
N. Freed, Director, Manufacturers Operations Division (6405J), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460. In addition, any written comments regarding the waiver request,
should be sent, in duplicate, to Charles N. Freed at the same address
to the attention of Docket A-91-01. Copies of material relevant to the
waiver request (Docket A-91-01) will be available for public inspection
during normal working hours of 8 a.m. to 4 p.m. Monday through Friday,
including all non-government holidays, at the U.S. Environmental
Protection Agency, Air and Radiation Docket and Information Center, 401
M Street, SW., Washington, DC 20460. Telephone: (202) 260-7548. FAX
Number: (202) 260-4000.
FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney/Advisor,
Manufacturers Operations Division (6405J), U.S. Environmental
Protection Agency, Washington, DC 20460. Telephone: (202) 233-9256.
SUPPLEMENTARY INFORMATION:
I. Background
Section 209(e)(1) of the Act as amended, 42 U.S.C. 7543(e)(1),
provides in part: ``No State or any political subdivision thereof shall
adopt or attempt to enforce any standard or other requirement relating
to the control of emissions from either of the following new nonroad
engines or nonroad vehicles subject to regulation under this Act--(A)
New engines which are used in construction equipment or vehicles or
used in farm equipment or vehicles and which are smaller than 175
horsepower. (B) New locomotives or new engines used in locomotives.''
For those new pieces of equipment or new vehicles other than those
a State is not permanently preempted from regulating under section
209(e)(1), the State of California may regulate such new equipment or
new vehicles provided California complies with Section 209(e)(2).
Section 209(e)(2) provides in part that the Administrator shall, after
notice and opportunity for public hearing, authorize California to
adopt and enforce standards and other requirements relating to the
control of emissions from such vehicles or engines ``[i]f California
determines that California standards will be, in the aggregate, at
least as protective of public health and welfare as applicable Federal
standards. No such authorization shall be granted if the Administrator
finds that--(i) the determination of California is arbitrary and
capricious, (ii) California does not need such California standards to
meet compelling and extraordinary conditions, or (iii) California
standards and accompanying enforcement procedures are not consistent
with this section.''
EPA has issued a final regulation titled ``Air Pollution Control;
Preemption of State Regulation for Nonroad Engine and Vehicle
Standards'' (section 209(e) rule) that sets forth several definitions,
as explained below, and the authorization criteria EPA must consider
before granting California an authorization to enforce any of its
nonroad engine standards.1 As described in the section 209(e)
rule, in order to be deemed ``consistent with this section'',
California standards and enforcement procedures must be consistent with
section 209. In order to be consistent with section 209 California
standards and enforcement procedures must reflect the requirements of
sections 209(a), 209(e)(1), and 209(b). Section 209(a) prohibits states
from adopting or enforcing emission standards for new motor vehicles or
new motor vehicle engines.2 Section 209(e)(1) identifies the
categories preempted from state regulation. As stated above, the
preempted categories are (a) new engines which are used in construction
equipment or vehicles or used in farm equipment or vehicles and which
are smaller than 175 horsepower, and (b) new locomotives or new engines
used in locomotives. The section 209(e) rule defines construction
equipment or vehicle to mean ``any internal combustion engine-powered
machine primarily used in construction and located on commercial
construction sites. The section 209(e) rule defines farm equipment or
vehicle to mean ``any internal combustion engine-powered machine
primarily used in the commercial production and/or commercial
harvesting of food, fiber, wood, or commercial organic products or for
the processing of such products for further use on the farm. The
section 209(e) rule defines ``primarily used'' to mean ``used 51
percent or more.'' Therefore, California's proposed emission
regulations would be considered inconsistent with section 209 if they
applied to these permanently preempted categories. Additionally, the
section 209(e) rule requires EPA to review nonroad authorization
requests under the same ``consistency'' criterion that it reviews motor
vehicle waiver requests. Under section 209(b)(1)(C), the Administrator
shall not grant California a motor vehicle waiver if she finds that
California standards and accompanying enforcement procedures are not
consistent with section 202(a) of the Act. California's nonroad
standards are not consistent with section 202(a) if there is inadequate
lead time to permit the development of technology necessary to meet
those standards, giving appropriate consideration to the cost of
compliance within that time frame. Additionally, California's nonroad
accompanying enforcement procedures would be inconsistent with section
202(a) if the Federal and California test procedures were inconsistent,
that is, manufacturers would be unable to meet both the State and
Federal test requirements with one test vehicle or engine.
---------------------------------------------------------------------------
\1\See 59 FR 36969, July 20, 1994 (to be codified at 40 C.F.R.
part 85, subpart Q, Secs. 85.1601-85.1606). This final rule titled
``Air Pollution Control; Preemption of State Regulation for Nonroad
Engine and Vehicle Standards'' was proposed at 56 FR 45866, Sept. 6,
1991, along with a ``Proposed Decision of the Administrator;
Opportunity for Public Hearing'' at 56 FR 45873, Sept. 6, 1991.
\2\EPA believes CARB's authorization request for utility and
lawn and garden equipment engines below 25 horsepower does not raise
an issue with regard to whether such engines are motor vehicles. EPA
anticipates that in future CARB authorization requests involving
larger horsepower engines EPA will utilize both its definitions of
motor vehicles and nonroad engines to resolve this issue.
---------------------------------------------------------------------------
Once California has been granted an authorization, under section
209(e)(2), for its standards and accompanying enforcement procedures
for a category or categories of equipment, it may adopt other
conditions precedent to initial retail sale, titling or registration of
the subject category or categories of equipment without the necessity
of receiving further EPA authorization.
By letter dated December 27, 1990, CARB submitted to EPA a request
that EPA authorize California to adopt regulations for standards and
test procedures for 1994 and subsequent calendar year utility and lawn
and garden engines and vehicles. On September 6, 1991 EPA issued a
``Proposed Decision of the Administrator; Opportunity for Public
Hearing.''3 By today's action EPA is offering an additional
opportunity for public hearing and written comment on CARB's utility
engine authorization request. By a decision dated December 18, 1992,
CARB changed the affected model year to 1995. By letter dated September
9, 1994, CARB submitted a revised authorization request for waiver of
federal preemption describing, among other things, which categories of
equipment would be subject to its regulations. These regulations which
apply to all gasoline, diesel, and other fueled nonroad equipment
engines 25 horsepower and under, with the exceptions noted in CARB's
request:
---------------------------------------------------------------------------
\3\56 FR 45873, Sept. 6, 1991. A hearing was held on September
20, 1991 for both CARB's utility engine authorization request and
EPA's proposed Section 209(e) regulation. No final EPA decision was
made regarding CARB's utility engine authorization request.
---------------------------------------------------------------------------
a. Establish exhaust emission standards for engines produced
between December 31, 1994 and the end of the 1998 model year, measured
in grams per brake-horsepower-hour (g/bhp-hr), based on total engine
displacement and whether the equipment is handheld or non-handheld.
b. Establish a second tier of exhaust emission standards for 1999
and subsequent model year utility engines.
c. Require certification of engines including compliance test
procedures and assembly-line quality audit test procedures.
d. Require that commencing with the year 1999 replacement engines
for equipment built prior to 1995 comply with the 1995 model emission
regulations.
e. Establish a labeling requirement.
f. Require manufacturers to provide a two year emissions warranty.
Subsequent to CARB's adoption of its new utility and lawn and
garden standards and test procedures, EPA proposed standards and test
procedures for similar horsepower-sized equipment on May 16,
1994.4 EPA expects this proposed rule to become final in May 1995.
Under the proposed rule noted above EPA's standards and test procedures
were proposed to commence on August 1, 1996. Because EPA's standards
and test procedures are not yet final, EPA does not expect CARB's
utility and lawn and garden standards and test procedures to be
compared to EPA's proposed standards and test procedures for purposes
of this authorization request. However, EPA invites comment on this
reasoning and comment on any comparison between CARB's utility engine
regulation and EPA's proposed regulation regarding similar horsepower-
sized equipment and how it may affect today's authorization
consideration.
---------------------------------------------------------------------------
\4\``Control of Air Pollution; Emission Standards for New
Nonroad Spark-Ignition Engines at or Below 19 Kilowatts'' at 59 FR
25399, May 16, 1994.
---------------------------------------------------------------------------
California states in its September 9, 1994 letter that it has
determined that its standards for utility and lawn and garden equipment
engines are, in the aggregate, at least as protective of the public
health and welfare as the applicable Federal standards. Further,
California, referencing its December 27, 1990 letter, states that it
needs separate standards to meet compelling and extraordinary
conditions. Finally, California states that its standards and test
procedures are consistent with section 209 of the Act. California's
request will be considered according to the criteria for an
authorization request as set forth in the section 209(e)
regulation.5 Any party wishing to present testimony at the hearing
or by written comment should address, as explained in the section
209(e) rule, the following issues:
---------------------------------------------------------------------------
\5\``Air Pollution Control; Preemption of State Regulation for
Nonroad Engine and Vehicle Standards'' at 59 FR 36969, July 20, 1994
(to be codified at 40 C.F.R. part 85, subpart Q, Secs. 85.1601-
85.1606).
---------------------------------------------------------------------------
(1) Whether California's determination that its standards are at
least as protective of public health and welfare as applicable Federal
standards is arbitrary and capricious;
(2) Whether California needs separate standards to meet compelling
and extraordinary conditions; and,
(3) Whether California's standards and accompanying enforcement
procedures are consistent with (i) section 209(a), which prohibits
states from adopting or enforcing emission standards for new motor
vehicles or engines, (ii) section 209(e)(1), which identifies the
categories preempted from state regulation, and (iii) section 202(a) of
the Act.
II. Public Participation
If the scheduled hearing takes place, it will provide an
opportunity for interested parties to state orally their views or
arguments or to provide pertinent information regarding the issues as
noted above and further explained in the section 209(e) rule. Any party
desiring to make an oral statement on the record should file ten (10)
copies of its proposed testimony and other relevant material along with
its request for a hearing with the Director of EPA's Manufacturers
Operations Division at the Director's address listed above not later
than November 28, 1994. In addition, the party should submit 50 copies,
if possible, of the proposed statement to the presiding officer at the
time of the hearing.
In recognition that a public hearing is designed to give interested
parties an opportunity to participate in this proceeding, there are no
adverse parties as such. Statements by participants will not be subject
to cross-examination by other participants without special approval by
the presiding officer. The presiding officer is authorized to strike
from the record statements which he deems irrelevant or repetitious and
to impose reasonable limits on the duration of the statement of any
participant.
If a hearing is held, the Agency will make a verbatim record of the
proceedings. Interested parties may arrange with the reporter at the
hearing to obtain a copy of the transcript at their own expense.
Regardless of whether a public hearing is held, EPA will keep the
record open until January 11, 1994.
Persons with comments containing proprietary information must
distinguish such information from other comments to the greatest extent
possible and label it as ``Confidential Business Information.'' To
ensure that proprietary information is not inadvertently placed in the
docket, submissions containing such information should be sent directly
to the contact person listed above and not to the public docket. If a
person making comments wants EPA to base its final decision in part on
a submission labeled as confidential business information, then a non-
confidential version of the document which summarizes the key data or
information should be placed in the public docket. Information covered
by a claim of confidentiality will be disclosed by EPA only to the
extent allowed by the procedures set forth in 40 CFR part 2. If no
claim of confidentiality accompanies the submission when it is received
by EPA, it may be made available to the public without further notice
to person making comments.
Dated: November 1, 1994.
Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 94-27648 Filed 11-7-94; 8:45 am]
BILLING CODE 6560-50-P
