California State Nonroad Equipment Pollution Control Standards; Authorization of State Standards Notice of Decision

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.

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

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.

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

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