California State Nonroad Engine and Equipment Pollution Control Standards; Opportunity for Public Hearing

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