[Federal Register Volume 60, Number 139 (Thursday, July 20, 1995)]
[Notices]
[Pages 37440-37442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17762]
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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-5260-8]
California State Nonroad Equipment Pollution Control Standards;
Authorization of State Standards Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice regarding authorization of State standards.
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SUMMARY: EPA is authorizing California to enforce regulations for
exhaust emission standards and test procedures for 1995 and later new
utility and lawn and garden equipment engines 25 horsepower and below
pursuant to section 209(e) of the Clean Air Act.
ADDRESSES: The Agency's decision document containing an explanation of
the Administrator's decision, as well as all documents relied upon in
reaching that decision, including those submitted by the California Air
Resources Board (CARB), are available for public inspection in the Air
and Radiation Docket and Information Center in Docket A-91-01 during
the working hours of 8 a.m. to 5:30 p.m. at the Environmental
Protection Agency, Air Docket (6102), Room M-1500, Waterside Mall, 401
M Street, SW., Washington, D.C. 20460. Copies of the decision can be
obtained from EPA's Manufacturers Operations Division by contacting
David Dickinson, as noted below.
FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney/Advisor,
Manufacturers Operations Division (6405J), U.S. Environmental
Protection Agency, 401 M Street SW., Washington, D.C. 20460. Telephone:
(202) 233-9256.
[[Page 37441]]
SUPPLEMENTARY INFORMATION: I have decided to authorize California to
enforce regulations for standards and test procedures for nonroad
engines pursuant to section 209(e) of the Clean Air Act, as amended
(Act), 42 U.S.C. 7543. These regulations establish exhaust emission
standards and test procedures for 1995 and later new utility and lawn
and garden equipment engines 25 horsepower and below, including a
second tier of standards for engines produced on or after January 1,
1999. A comprehensive description of these California regulations can
be found in the decision document for this authorization and in
materials submitted by CARB.
On the basis of the record before me, I cannot make the findings
required to deny authorization under section 209(e)(2) of the Act.
Therefore, I am authorizing California to enforce these regulations.
On September 6, 1991 EPA published a ``Proposed Decision of the
Administrator; Opportunity for Public Comment'' for the California Air
Resources Board's (CARB) authorization request.1 On July 20, 1994
EPA published its final rule under section 209(e) entitled ``Air
Pollution Control; Preemption of State Regulation for Nonroad Engine
and Vehicle Standards'' (section 209(e) rule).2 On November 8,
1994 EPA published a notice of opportunity for a public hearing and a
request for written comments concerning a revised authorization request
received from CARB.3 EPA held its public hearing on December 6,
1994 and received oral comments from the California Air Resources Board
(CARB), the Portable Power Equipment Manufacturers Association (PPEMA),
the Engine Manufacturers Association (EMA) and Outdoor Power Equipment
Institute (OPEI), and Kohler. EPA received written comments from the
American Pulpwood Association, the Associated California Loggers, the
Illinois Farm Bureau, CARB, the American Forest & Paper Association,
the Manufacturers of Emission Controls Association, the North American
Equipment Dealers Association, PPEMA, EMA and OPEI, and Toro.
Consequently, this determination is based on the oral and written
submissions by CARB, the oral comments delivered at the December 6,
1994 hearing, and the written comments submitted in response to the
above-mentioned notice and all other relevant information.4
\1\ 56 FR 45873 (September 6, 1991). No final EPA decision was
made on this proposal until today's authorization determination.
\2\ 59 FR 36969 (July 20, 1994).
\3\ 59 FR 55658 (November 8, 1994).
\4\ This information is contained in Docket A-91-01.
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Section 209(e) of the Act as amended, 42 U.S.C. 7543(e), addresses
state regulation of nonroad engines and vehicles. EPA issued on July
20, 1994 a final regulation to implement section 209(e).5 Section
209(e)(1) preempts states from regulating 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 new locomotives
or new engines used in locomotives. The section 209(e) rule sets forth
definitions for these preempted categories of engines.
\5\ See 59 FR 36969, July 20, 1994 (to be codified at 40 CFR
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.
For those new pieces of equipment or new vehicles other than those
a State is permanently preempted from regulating under section
209(e)(1), the State of California may promulgate standards regulating
such new equipment or new vehicles provided California complies with
Section 209(e)(2). The section 209(e) rule provides that if certain
criteria are met, the Administrator shall authorize California to adopt
and enforce standards and other requirements relating to the control of
emissions from such vehicles or engines. The criteria include
consideration of whether California arbitrarily and capriciously
determined that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards; whether California needs state standards to meet compelling
and extraordinary conditions; and whether California's standards and
accompanying enforcement procedures are consistent with section 209.
California determined that its standards and test procedures would
not cause California emission standards, in the aggregate, to be less
protective of public health and welfare as the applicable Federal
standards. Information presented to me by parties opposing California's
authorization request did not demonstrate that California arbitrarily
or capriciously reached this protectiveness determination. Therefore, I
cannot find California's determination to be arbitrary or capricious.
CARB has continually demonstrated the existence of compelling and
extraordinary conditions justifying the need for its own motor vehicle
pollution control program. In addition, CARB provided information
regarding actions taken by the California Legislature in an effort to
address the current air quality conditions in California, directing
CARB to consider adopting regulations for off-road engines. Information
presented to me by parties opposing California's authorization request
did not demonstrate that California no longer has a compelling and
extraordinary need for its own program. Based on previous showings by
California in the context of motor vehicle waivers and CARB's
submission to the record regarding the status of air quality in the
state, I agree that California continues to have compelling and
extraordinary conditions for its own program. Thus, I cannot deny the
waiver on the basis of the lack of compelling and extraordinary
conditions.
CARB has submitted information that the requirements of its
emission standards and test procedures do not violate the permanent
preemption provisions of section 209(e)(1), do not violate the motor
vehicle preemption provisions of section 209(a), and are
technologically feasible and present no inconsistency with Federal
requirements and are, therefore, consistent with section 209 of the
Act.
No information has been submitted to demonstrate that California
did not satisfy its burden of demonstrating that its emission standards
and test procedures do not violate section 209(e)(1). No information
has been submitted to demonstrate that California's emission standards
and test procedures violate section 209(a). Information submitted to me
by parties opposing California's authorization request did not satisfy
the burden of persuading EPA that the standards are not technologically
feasible within the available lead time, considering costs. In
addition, no information has been submitted to demonstrate that
California's certification test procedures are inconsistent with
Federal certification test procedures. Accordingly, I cannot make the
determinations required for a denial of this authorization under
section 209(e) of the Act, and therefore, I authorize the State of
California to enforce these regulations.
My decision will affect not only persons in California but also the
manufacturers outside the State who must comply with California's
requirements in order to produce nonroad equipment engines for sale in
California. For this reason, I hereby determine and find that this is a
final action of national applicability.
[[Page 37442]]
Under 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
September 18, 1995. Under section 307(b)(2) of the Act, judicial review
of this final action may not be obtained in subsequent enforcement
proceedings.
As with past 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.
Finally, the Administrator has delegated the authority to make
determinations regarding waivers of Federal preemption under section
209(e) of the Act to the Assistant Administrator for Air and Radiation.
Dated: July 5, 1995.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
[FR Doc. 95-17762 Filed 7-19-95; 8:45 am]
BILLING CODE 6560-50-P
