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

ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-5300-6]

California State Nonroad Engine Pollution Control Standards;

Authorization of State Standards; Notice of Decision

AGENCY: Environmental Protection Agency.

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 1996 and later new

heavy-duty off-road diesel cycle engines 175 horsepower and greater

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-94-44 during

the working hours of 8:00 a.m. to 5:30 p.m. at the Environmental

Protection Agency, Air Docket (6102), Room M-1500, Waterside Mall, 401

M Street, S.W., 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 S.W., Washington, D.C. 20460.

Telephone: (202) 233-9256.

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 1996 and later new heavy-duty off-

road diesel cycle engines 175 horsepower and greater, including

alternate-fueled engines, produced on or after January 1, 1996. 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 February 14, 1995 EPA published a notice of opportunity for a

public hearing and a request for written comments concerning

California's request.\1\ EPA received no request for a hearing. EPA

received comments from the United States Office of the Deputy Under

Secretary of Defense. Consequently, this determination is based on

written submissions by CARB, the written comments submitted in response

to the above-mentioned notice and all other relevant information.

\1\60 FR 8381 (February 14, 1995).

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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) entitled ``Air

Pollution Control; Preemption of State Regulation for Nonroad Engine

and Vehicle Standards'' (section 209(e) rule).\2\ Section 209 preempts

states from regulating several types of new nonroad engines and

vehicles, including 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.

\2\See 59 FR 36969 (July 20, 1994) and codified at 40 C.F.R.

Part 85, Subpart Q, Secs. 85.1601-85.1606.

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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 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

[[Page 48982]]

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. I was not presented with any information opposing

California's authorization request or demonstrating 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. No

information has been submitted to 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 compelling and extraordinary conditions

warrant the need in California for separate standards for heavy-duty

off-road diesel cycle engines. 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 are technologically feasible and

present no inconsistency with Federal requirements and are, therefore,

consistent with section 209 of the Act.

The one issue of inconsistent test procedures was resolved. For the

test procedure for hydrocarbons (HC), carbon monoxide (CO), and oxides

of nitrogen (NOX), EPA has more stringent test specifications such

that EPA cannot be certain that if an engine were tested and met the

California test specifications, that it would definitely meet the EPA

test specifications. It is clear, on the other hand, that an engine

that passed the EPA test specifications could definitely be deemed to

have passed the CARB test specifications. CARB presented a letter to

EPA dated January 21, 1995, which resolved this issue.\3\ The letter

stated that ``tests properly conducted by the manufacturer, according

to the U.S. EPA procedure, will be considered valid for purposes of

California certification, quality-audit, and new engine compliance

testing.'' Thus, the manufacturer will be able to accomplish both

Federal and California certification requirements with one test and the

test procedure tier of the consistency criterion is met.

\3\Letter to Charles N. Freed, EPA from K.D. Drachand, CARB

dated January 21, 1995. Docket A-94-44 II-D-3.

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The Agency received no comments regarding this issue. Since both

California and Federal certification requirements can be met with the

same test vehicle in the course of a single test, test procedure

inconsistency is not a bar to California to obtaining authorization by

EPA to adopt and enforce California regulations. Thus, based on the

foregoing information, I cannot find that California's standards and

accompanying enforcement procedures are inconsistent with section 209

of the Act.

The Agency received written comment from the United States

Department of Defense expressing concern that CARB's emission standards

will have a major impact on military operations in California. As

further explained in the decision document for this authorization, EPA

expects CARB to adequately address this concern by adopting regulatory

language to closely parallel the national security exemption provisions

promulgated by EPA.

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.

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

November 20, 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 and authorization 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: September 15, 1995.

Mary D. Nichols,

Assistant Administrator for Air and Radiation.

[FR Doc. 95-23436 Filed 9-20-95; 8:45 am]

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