2011-2852. California State Nonroad Engine Pollution Control Standards; Request for Authorization of Portable Equipment Registration Program; Opportunity for Public Hearing and Comment

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of opportunity for public hearing and comment.

SUMMARY:

The California Air Resources Board (CARB) has notified EPA that it has finalized amendments to its Portable Equipment Registration Program (PERP). PERP is a voluntary program that allows for the registration of nonroad engines and equipment units that operate at multiple locations, so that the engine/equipment owners can operate throughout California without the need of obtaining permits from local air pollution control districts. CARB has requested that EPA confirm that certain emission standards of the voluntary PERP fall within the scope of previously granted authorizations, and that a new authorization be granted for those emission standards that are otherwise not covered by the within-the-scope confirmation. This notice announces that EPA has tentatively scheduled a public hearing to consider California's PERP within-the-scope confirmation and authorization request and that EPA is now accepting written comment on the request.

DATES:

EPA has tentatively scheduled a public hearing concerning CARB's request on February 24, 2011, at 1:00 p.m. EST. EPA will hold a hearing only if any party notifies EPA by February 17, 2011, expressing its interest in presenting oral testimony. By February 18, 2011, any person who plans to attend the hearing may call Robert Doyle at [phone], to learn if a hearing will be held or may check the following webpage for an update: http://www.epa.gov/​otaq/​cafr.htm.

Parties wishing to present oral testimony at the public hearing should provide written notice to Robert Doyle at the e-mail address noted below. If EPA receives a request for a public hearing, that hearing will be held at 1310 L Street, NW., Washington, DC 20005.

If EPA does not receive a request for a public hearing, then EPA will not hold a hearing, and instead consider CARB's request based on written submissions to the docket. Any party may submit written comments until March 24, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2011-0102, by one of the following methods:

• On-Line at http://www.regulations.gov: Follow the On-Line Instructions for Submitting Comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-2011-0102, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies.
• Hand Delivery: EPA Docket Center, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

On-Line Instructions for Submitting Comments: Direct your comments to Docket ID No. EPA-HQ-OAR-2011-0102. EPA's policy is that all comments we receive will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will automatically be captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

EPA will make available for public inspection materials submitted by CARB, written comments received from any interested parties, and any testimony given at the public hearing. Materials relevant to this proceeding are contained in the Air and Radiation Docket and Information Center, maintained in Docket ID No. EPA-HQ-OAR-2011-0102. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air and Radiation Docket in the EPA Headquarters Library, EPA West Building, Room 3334, located at 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open to the public on all Federal government work days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday through Friday, excluding holidays. The telephone number for the Reading Room is [phone]. The Air and Radiation Docket and Information Center's Web site is http://www.epa.gov/​oar/​docket.html. The electronic mail (e-mail) address for the Air and Radiation Docket is: [e-mail], the telephone number is [phone], and the fax number is [phone]. An electronic version of the public docket is available through the Federal government's electronic public docket and comment system. You may access EPA dockets at http://www.regulations.gov. After opening the http://www.regulations.gov Web site, enter EPA-HQ-OAR-2011-0102, in the “Enter Keyword or ID” fill-in box to view documents in the record. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

EPA's Office of Transportation and Air Quality also maintains a webpage that contains general information on its review of California waiver requests. Included on that page are links to prior waiver and authorization Federal Register notices; the page can be accessed at http://www.epa.gov/​otaq/​cafr.htm.

FOR FURTHER INFORMATION CONTACT:

Robert M. Doyle, Attorney-Advisor, Compliance and Innovative Strategies Division, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: [phone]. Fax: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. California's PERP Request

In a letter dated December 5, 2008, CARB submitted to EPA its request pursuant to section 209 of the Clean Air Act (“CAA” or “the Act”), regarding its regulations to enforce the requirements of its Portable Equipment Registration Program (PERP). CARB established the PERP as a voluntary program to address the concerns of equipment owners who moved equipment within California and thus often faced the need to obtain separate preconstruction and operating permits from the different local air pollution control districts in the state. Under the PERP, once registered, portable equipment is no longer subject to local air pollution control district permitting requirements. The PERP also requires that all registered engines and equipment meet established emission standards that reflected the best available control technology for all classes and categories of portable equipment. Generally, this means that, after January 1, 2006, only engines that meet the most stringent CARB or EPA emission standards in effect at the time of registration are allowed in the PERP. Registered compression-ignition engines must also meet the requirements of the CARB Airborne Toxic Control Measure (ATCM) for in-use portable diesel-fueled engines 50 brake-horsepower (hp) and greater (portable engines).^[1] If spark-ignition engines do not meet Federal or CARB certification standards, they can still meet some minimum requirements to be in the program.

CARB has requested that EPA confirm that parts of the voluntary PERP for portable engines and equipment fall within the scope of previously issued authorizations,^[2] and that the Administrator grant a new authorization for those emission standards that are not otherwise not covered by the within-the-scope confirmation.

II. 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.

Section 209(e)(2) requires the Administrator, after notice and opportunity for public hearing, to authorize California to enforce standards and other requirements relating to the control of emissions from new engines not listed under section 209(e)(1), if certain criteria are met. EPA has promulgated regulations implementing these provisions at 40 CFR part 1074. These regulations set forth the criteria that EPA must consider before granting California authorization to enforce its new nonroad emission standards.^[3]

As stated in the preamble to the section 209(e) rule, EPA has historically interpreted the section 209(e)(2)(iii) “consistency” inquiry to require, at minimum, that California standards and enforcement procedures be consistent with section 209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that subsection in the context of section 209(b) motor vehicle waivers).^[4]

In order to be consistent with section 209(a), California's nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California's nonroad standards and enforcement procedures must not attempt to regulate engine categories that are permanently preempted from state regulation. To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests. Pursuant to section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if she finds that California “standards and accompanying enforcement procedures are not consistent with section 202(a)” of the Act. Previous decisions granting waivers and authorizations have noted that state standards and enforcement procedures are inconsistent with section 202(a) if: (1) There is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time, or (2) the Federal and state testing procedures impose inconsistent certification requirements.

If California amends regulations that were previously granted an authorization, EPA can confirm that the amended regulations are within the scope of the previously granted authorization. Such within-the-scope amendments are permissible without a full authorization review if three conditions are met. First, the amended regulations must not undermine California's determination that its standards, in the aggregate, are as protective of public health and welfare as applicable Federal standards. Second, the amended regulations must not affect consistency with section 202(a) of the Act. Third, the amended regulations must not raise any “new issues” affecting EPA's prior authorizations.

III. Procedures for Public Participation

As stated above, EPA is offering the opportunity for a public hearing, and requesting written comment on issues relevant to the CARB request. First, CARB has requested EPA confirm that parts of the voluntary PERP for portable engines and equipment fall within the scope of previously issued authorizations or submitted authorization requests. Within the context of a within-the-scope analysis, EPA invites comment on whether California's PERP requirements (1) undermine California's previous determination that its standards, in the aggregate, are at least as protective of public health and welfare as comparable Federal standards, (2) affect the consistency of California's requirements with section 202(a) of the Act, and (3) raise any other new issues affecting EPA's previous waiver or authorization determinations.

Second, CARB has requested that the Administrator grant a new authorization for those emission standards that are not otherwise not covered by the within-the-scope confirmation. For this full authorization analysis, we request comment on: (a) Whether CARB's determination that its standards, in the aggregate, are at least as protective of public health and welfare as applicable Federal standards is arbitrary and capricious, (b) whether California needs such standards to meet compelling and extraordinary conditions, and (c) whether California's standards and accompanying enforcement procedures are consistent with section 209 of the Act.

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 March 24, 2011. Upon expiration of the comment period, the Administrator will render a decision on CARB's request based on the record from the public hearing, if any, all relevant written submissions, and other information that she deems pertinent. All information will be available for inspection at the EPA Air Docket No. EPA-HQ-OAR-2011-0102.

Persons with comments containing proprietary information must distinguish such information from other comments to the greatest extent possible and label it as “Confidential Business Information” (CBI). If a person making comments wants EPA to base its decision on a submission labeled as CBI, then a non-confidential version of the document that summarizes the key data or information should be submitted to the public docket. To ensure that proprietary information is not inadvertently placed in the public docket, submissions containing such information should be sent directly to the contact person listed above and not to the public docket. Information covered by a claim of confidentiality will be disclosed by EPA only to the extent allowed, and according to the procedures set forth in 40 CFR Part 2. If no claim of confidentiality accompanies the submission when EPA receives it, EPA will make it available to the public without further notice to the person making comments.

Dated: February 3, 2011.

Lori Stewart,

Acting Director, Office of Transportation and Air Quality, Office of Air and Radiation.

Footnotes

1.  CARB has requested an authorization for this ATCM; EPA has announced the opportunity for public hearing and public comment on this request by another Federal Register notice also published today. That notice is available at http://epa.gov/​otaq/​cafr.htm.

2.  This includes: California State Nonroad Engine Pollution Control Standards; Authorization of State Standards for 1996 and later New Diesel Cycle Engines 175 Horsepower and Greater, 60 FR 48981 (September 21, 1995); California State Nonroad Engine and Vehicle Pollution Control Standards: Authorization of Large Off-Road Spark-Ignition Engine Standards, Notice of Decision, 71 FR 29621 (May 23, 2006); California State Nonroad Engine Pollution Control Standards: California New Nonroad Compression Ignition Engine Emission Standards; Notice of Decision (75 FR 8056) (February 23, 2010).

3.  Title 40 of the Code of Federal Regulations, part 1074.105 provides:

(a) The Administrator will grant the authorization if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as otherwise applicable Federal standards.

(b) The authorization will not be granted if the Administrator finds that any of the following are true:

(1) California's determination is arbitrary and capricious.

(2) California does not need such standards to meet compelling and extraordinary conditions.

(3) The California standards and accompanying enforcement procedures are not consistent with section 209 of the Act.

(c) In considering any request from California to authorize the state to adopt or enforce standards or other requirements relating to the control of emissions from new nonroad spark-ignition engines smaller than 50 horsepower, the Administrator will give appropriate consideration to safety factors (including the potential increased risk of burn or fire) associated with compliance with the California standard.

4.  See 59 FR 36969 (July 20, 1994).