8056 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

1 60 FR 37440 (July 20, 1995). 

2 68 FR 69763 (November 20, 2000). 

3 60 FR 48981 (September 21, 1995). 

4 69 FR 38958 (June 29, 2004). 

assistance must prepare and submit 

DWSRF loan applications. States then 

review completed loan applications and 

verify that proposed projects will 

comply with applicable Federal and 

State requirements. 

As a result of the American Recovery 

and Reinvestment Act signed by the 

President on February 17, 2009, the 

Drinking Water State Revolving Fund 

received an additional $2 billion in 

funding for assistance agreements for 

projects to be under contract or 

construction by February 17, 2010. EPA 

expects an estimated two-fold increase 

of respondents (in some years) due to 

this additional funding. 

Burden Statement: The public 

reporting and recordkeeping burden for 

this collection of information is 

estimated to average 2,410 hours per 

State and 80 hours per local respondent 

(including Indian Tribes and Alaska 

Native Villages) annually. Burden 

means the total time, effort, or financial 

resources expended by persons to 

generate, maintain, retain, or disclose or 

provide information to or for a Federal 

agency. This includes the time needed 

to review instructions; develop, acquire, 

install, and utilize technology and 

systems for the purposes of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements which have subsequently 

changed; train personnel to be able to 

respond to a collection of information; 

search data sources; complete and 

review the collection of information; 

and transmit or otherwise disclose the 

information. 

The ICR provides a detailed 

explanation of the Agency’s estimate, 

which is only briefly summarized here: 

Estimate total number of potential 

respondents: 1,887 per year. 

Frequency of response: Annual (for 

Capitalization Grants and Audits), On 

Occasion (for Biennial reports and Loan 

Applications). 

Estimated total average number of 

responses for each respondent: One. 

Estimated total annual burden hours 

per response: 134. 

Estimated total annual burden hours: 

269,797. 

Estimated total annual costs: 

$10,639,932, which includes $0 capital/ 

operation & maintenance cost. 

Changes in the Estimates: There is an 

increase of 72,927 hours in the total 

estimated burden currently identified in 

the OMB Inventory of Approved ICR 

Burdens. This reflects EPA’s calculation 

of the burden hours resulting from a 

possible two-fold increase in local 

respondents and ongoing programmatic 

implementation needs due to additional 

funds from the American Reinvestment 

and Recovery Act of 2009. 

Dated: February 16, 2010. 

John Moses, 

Director, Collection Strategies Division. 

[FR Doc. 2010–3519 Filed 2–22–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9114–1] 

California State Nonroad Engine 

Pollution Control Standards; California 

New Nonroad Compression Ignition 

Engines; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision Granting 

Authorization of California’s New 

Nonroad Compression Ignition Engine 

Emission Standards 

SUMMARY: The Environmental Protection 

Agency (EPA) today, pursuant to section 

209(e) of the Clean Air Act (Act), 42 

U.S.C. 7543(e), is granting California its 

request for an authorization of its 

emission standards and accompanying 

test procedures for new nonroad 

compression ignition (CI) engines. EPA 

is also confirming that one sub-set of 

California’s amended regulations does 

fall within-the-scope of an authorization 

that EPA previously granted. 

ADDRESSES: Materials relevant to this 

decision are contained in Docket No. 

EPA–HQ–OAR–2008–0670. The docket 

is located at The Air Docket, Room 

3334, 1301 Constitution Avenue, NW., 

Washington, DC 20460, and may be 

viewed between 8 a.m. and 5:30 p.m., 

Monday through Friday. The telephone 

is (202) 566–1742. A reasonable fee may 

be charged by EPA for copying docket 

material. 

Additionally, 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–2008–0670 in 

‘‘Search Documents’’ to view documents 

in the record of CARB’s nonroad 

compression ignition authorization 

request. 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. 

FOR FURTHER INFORMATION CONTACT: 

Kristien G. Knapp, Compliance and 

Innovative Strategies Division, United 

States Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

(6405J), NW., Washington, DC 20460. 

Telephone: (202) 343–9949. E-mail 

Address: knapp.kristien@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

By this decision, issued pursuant to 

section 209(e) of the Clean Air Act (the 

‘‘Act’’), 42 U.S.C. 7543(e), the 

Environmental Protection Agency 

(‘‘EPA’’) has determined that the 

California Air Resources Board’s 

(‘‘CARB’s’’) regulations and amendments 

regarding new nonroad compression 

ignition (‘‘CI’’) engine emission 

standards and testing procedures, that 

were adopted in 2000 and 2004–05, 

warrant EPA’s authorization. CARB’s 

regulations and amendments meet the 

criteria for such an authorization as 

outlined in section 209(e)(2) of the Act. 

CARB has requested that EPA find that 

its nonroad CI regulations and 

amendments fall within-the-scope of 

previously granted authorizations or, in 

the alternative, that EPA adopt and 

apply a new ‘‘harmonization construct’’ 

when California’s emission standards 

harmonize with federal emission 

standards. CARB’s regulations and 

amendments affect three power 

categories of nonroad CI engines as 

expressed in kilowatts (kW): those less 

than 19 kW, those greater than 19 kW 

but less than 130 kW, and those greater 

than 130 kW. EPA has previously 

granted authorizations for California’s 

Small Off-Road Engine less than 19 kW 

(‘‘SORE’’) regulations.1 Subsequently, 

EPA confirmed that CARB’s SORE 

amendments were within-the-scope of 

that prior authorization.2 EPA also 

previously granted an authorization for 

California’s new heavy-duty off-road 

diesel-cycle engines greater than 130 

kW.3 EPA subsequently confirmed that 

a later CARB amendment to those 

standards was within-the-scope of that 

prior authorization.4 To summarize, the 

smallest and largest categories of 

engines at issue here are the subjects of 

prior EPA authorizations and withinthe-scope determinations, while the 

middle category of engines presents an 

entirely new size category for EPA to 

consider. 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8057 

5EPA–HQ–OAR–2008–0670–0002. CARB 

originally requested a within-the-scope 

authorization for its off-road CI engine regulations 

that it had adopted in 2000, on July 16, 2004. CARB 

has since asked that its July 18, 2008 request 

replace that previous request and that EPA consider 

the 2000 regulations and amendments together with 

the 2004–05 regulations and amendments as one 

within-the-scope authorization request. 

6 59 FR 36969 (July 20, 1994). These regulations 

were subsequently moved to 40 CFR part 1074 and 

modified slightly. See 73 FR 59379 (October 8, 

2008). 

7See 59 FR 36969 (July 20, 1994). 

8 Decision Document accompanying waiver 

determination announced in 51 FR 12391 (April 10, 

1986). 

9 65 FR 69767 (November 20, 2000). 

In a letter dated July 18, 2008,5 CARB 

requested that EPA confirm that its 

amendments to the regulations affecting 

the three nonroad CI engine categories 

fall within-the-scope of the previously 

granted authorizations for the less than 

19 kW and greater than 130 kW 

categories. CARB’s amendments to the 

smallest category of engines (those less 

than 19kW) that were completed as part 

of its 2000 Rulemaking, did not raise the 

stringency of those standards and EPA 

is confirming today that they are withinthe-scope of its previous authorization. 

However, EPA has also found that this 

authorization request raises new issues 

with respect to each category that 

requires EPA to conduct a full 

authorization inquiry. For the smallest 

category, while CARB’s amendments 

affecting this category in the 2000 

Rulemaking are within-the-scope, 

increases to those standards’ stringency 

in the 2004–05 Rulemaking raise new 

issues. For the middle category of 

nonroad CI engines (those engines 

between 19 kW and 130 kW), those 

standards present new issues for EPA’s 

consideration because CARB’s 2000 

Rulemaking created the category and the 

2004–05 Rulemaking increased their 

stringency. For the largest category of 

engines, new issues are presented due to 

increases in stringency as a result of 

both the 2000 and 2004–05 

Rulemakings. These new issues warrant 

a full EPA authorization evaluation for 

all three categories. Upon completion of 

that evaluation, EPA is authorizing 

CARB to enforce these standards and 

procedures. 

II. Background 

A. Clean Air Act Nonroad Engine 

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) of the Act requires the 

Administrator to grant California 

authorization to enforce its own standards for 

new nonroad engines or vehicles which are 

not listed under section 209(e)(1), subject to 

certain restrictions. On July 20, 1994, EPA 

promulgated a rule that sets forth, among 

other things, the criteria, as found in section 

209(e)(2), which EPA must consider before 

granting any California authorization request 

for new nonroad engine or vehicle emission 

standards.6

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).7

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 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. 

B. California’s Authorization Request 

In its July 18, 2008 letter to EPA, 

CARB notified EPA of additional 

regulations and amendments to its 

nonroad CI emissions program and 

asked EPA to confirm that these 

regulations and amendments are withinthe-scope of previous authorizations. 

EPA can make such a confirmation if 

certain conditions are present. 

Specifically, if California acts to amend 

a previously authorized standard or 

accompanying enforcement procedure, 

the amendment may be considered as 

falling within-the-scope of a previously 

granted authorization provided that it: 

(1) Does not undermine California’s 

determination that its standards, in the 

aggregate, are as protective of public 

health and welfare as applicable Federal 

standards, (2) does not affect 

consistency with section 209 of the Act, 

and (3) raises no new issues affecting 

EPA’s previous authorization.8

California’s request, as noted above, 

concerns its emissions program for 

nonroad CI engines which are 

inclusively categorized by three engine 

power classes. Since EPA’s previous 

authorizations regarding California’s 

nonroad CI program, California has 

amended its standards for two of the 

classes and established and amended 

standards for the third class. These new 

standards and the amendments for each 

class were adopted over the course of 

two distinct CARB rulemakings: one in 

2000 (hereinafter the ‘‘2000 

Rulemaking’’) and another in 2004–05 

(hereinafter the ‘‘2004–05 Rulemaking’’). 

The 2000 Rulemaking adopted by CARB 

generally harmonized California’s 

emission standards and test procedures 

to the federal standards for the same 

nonroad CI engines that were 

promulgated in 1998 (Tier 1 through 

Tier 3). Similarly, the 2004–05 

Rulemaking generally harmonized 

California’s Tier 4 standards to the 

federal Tier 4 standards for these same 

nonroad CI engines that EPA adopted in 

2004. All of CARB’s standards for 

nonroad CI engines appear in Title 13 of 

the California Code of Regulations (CCR) 

sections 2420–2427. The federal 

emission standards for nonroad CI 

engines appear in 40 CFR parts 89 and 

1039. 

The first category of engines includes 

nonroad CI engines under 19 kW. The 

2000 Rulemaking merely re-codified 

California’s previously promulgated 

standards for this engine category, 

which EPA had previously found to be 

within-the-scope of its SORE 

authorization.9 These standards were 

later amended in the 2004–05 

Rulemaking to increase the stringency 

for this category of engines by 

promulgating Tier 4 standards, starting 

in the 2008 model year. These 

numerical standards are identical to 

current Federal standards: California’s 

Tiers 1, 2, and 4 align to EPA’s Tiers 1, 

2, and 4. 

The second category of engines 

includes those nonroad CI engines 

greater than 19 kW but less than 130 

kW. This category of standards was first 

established by the 2000 Rulemaking and 

was subsequently amended in the 

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8058 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

10 Id. 

11 Id. 

12See CARB’s Request at 10; EPA–HQ–OAR– 

2008–0670–0002; see also CARB’s Exhibit 4, EPA– 

HQ–OAR–2008–0670–0012 and EPA–HQ–OAR– 

2008–0670–0013, and CARB’s Exhibit 5, EPA–HQ– 

OAR–2008–0670–0014. 

13 69 FR 38958 (June 29, 2004), 70 FR 40421 (July 

13, 2005). 

14See CARB’s Request at 14, EPA–HQ–OAR– 

2008–0670–0002; see also CARB Exhibit 12, EPA– 

HQ–OAR–2008–0670–0023, and CARB Exhibit 13, 

EPA–HQ–OAR–2008–0670–0025. 

15 73 FR 58583 (October 7, 2008). 

16 Motor and Equip. Mfrs. Assoc. v. EPA (MEMA 

I), 627 F.2d 1095, 1122 (D.C. Cir. 1979). 

17 Id. 

18 Id. 

19 Id. 

20See, e.g., 40 FR 23, 102–103 (May 28, 1975). 

21See, e.g., MEMA I, 627 F.2d at 1110–11, citing 

H.R. Rep. No. 294, 95th Cong., 1st Sess. 301–02 

(1977). 

2004–05 Rulemaking. The standards 

began with model year 2000, requiring 

the engines to meet Tier 1 standards; 

Tier 2 standards are required for model 

years 2003 and 2004; and Tier 3 

standards are required for model years 

2007 and 2008. All of these standards 

for this engine size category are 

numerically identical to federal 

standards, with California’s Tiers 1 

through 3 matching EPA’s Tiers 1 

through 3.10 Finally, California’s Tier 4 

standards are required of all model year 

engines including and later than the 

2009 model year. California’s Tier 4 

standards largely align to EPA’s Tier 4 

standards for this category with the 

slight difference that California 

maintains separate NMHC and NOX

standards while for some engines EPA 

has a combined NMHC+NOX standard. 

The third category of engines includes 

those nonroad CI engines greater than 

130 kW. This category of standards was 

amended, including increases in 

numerical stringency, in both the 2000 

Rulemaking and 2004–05 Rulemaking. 

As with the above-described categories, 

the standards for this category align 

with federal standards: Tier 2 standards 

are required for model years 2001–2006, 

Tier 3 standards are required for model 

year 2006–2010, and Tier 4 standards 

are required for model years beginning 

with and beyond 2011. All tiers of 

California standards numerically match 

the corresponding federal standards for 

the same engine size.11

At the heart of both CARB’s 2000 and 

2004–05 Rulemakings were adoption of 

the above-noted emission standards. In 

each proceeding, though, additional 

amendments to California’s regulations 

were made, largely to harmonize with 

Federal compliance and enforcement 

procedures. In its 2000 Rulemaking, 

CARB adopted requirements mirroring 

federal requirements for maintenance 

intervals, recordkeeping, warranties, test 

procedures, certification test fuel, and 

engine useful life.12 At that time, CARB 

also provided for implementation 

flexibility for post-manufacture 

marinizers and optional reducedemission standard labeling requirements 

for ‘‘Blue Sky Series’’ CI engines. In its 

2004–05 Rulemaking, CARB, in addition 

to its adoption of emission standards, 

continued to harmonize its compliance 

and enforcement procedures to the 

corresponding federal compliance and 

enforcement procedures. Specifically, 

CARB adopted federal modifications 

that EPA had adopted in our Final Rule 

for Control of Emissions of Air Pollution 

From Nonroad Diesel Engines and Fuel 

and EPA’s Final Rule for Test 

Procedures for Testing Highway and 

Nonroad Engines Omnibus Technical 

Amendments.13 CARB adopted federal 

procedures for not-to-exceed limits, 

incentives for early introduction of 

engines with advanced after-treatment, 

new test procedures and test cycles, and 

enhanced in-use compliance provisions 

and flexibilities. California’s 2004–05 

Rulemaking does include some 

additional requirements ‘‘that are 

intended to provide additional 

safeguards for a more identifiable and 

enforceable deployment of flexibility 

allowances in California.’’ 14 Those 

supplemental requirements include 

additional labeling content 

requirements beyond that required by 

the federal program, a required CARB 

Executive Order for engines certified 

under the transitional flexibility 

program, and the maintenance of 

California’s own in-use warranty/recall 

program. 

C. EPA’s Consideration of CARB’s 

Request 

Because EPA believed it possible that 

CARB’s amendments did in fact raise 

‘‘new issues’’ as they impose new 

standards for the category of nonroad CI 

engines between 19 kW and 130 kW and 

raise the stringency of standards for the 

smaller and larger categories of nonroad 

CI engines, EPA offered the opportunity 

for a public hearing and requested 

public comments on these new 

standards and testing procedures.15 EPA 

received no request for a public hearing, 

nor was any comment received on the 

CARB standards and procedures at 

issue. Therefore, EPA has made this 

determination based on the information 

submitted by CARB in its request. 

D. Standard and Burden of Proof in 

Clean Air Act Section 209 Proceedings 

In Motor and Equip. Mfrs. Assoc. v. 

EPA, 627 F.2d 1095 (D.C. Cir. 1979) 

(hereinafter ‘‘MEMA I’’), the United 

States Court of Appeals stated that the 

Administrator’s role in a section 209 

proceeding is to: 

[C]onsider all evidence that passes the 

threshold test of materiality and * * * 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial * * * 

have shown that the factual circumstances 

exist in which Congress intended a denial 

* * *.16

The court in MEMA I considered the 

standards of proof pursuant to section 

209 for the two findings necessary to 

grant a waiver for an ‘‘enforcement 

procedure’’ (as opposed to the standards 

themselves): (1) ‘‘Protectiveness in the 

aggregate’’ and (2) ‘‘consistency with 

section 202(a)’’ findings. The court 

instructed that, ‘‘the standard of proof 

must take account of the nature of the 

risk of error involved in any given 

decision, and it therefore varies with the 

finding involved. We need not decide 

how this standard operates in every 

waiver decision.’’ 17

The court upheld the Administrator’s 

position that, to deny a waiver, ‘‘there 

must be ‘clear and compelling evidence’ 

to show that proposed procedures 

undermine the protectiveness of 

California’s standards.’’ 18 The court 

noted that this standard of proof ‘‘also 

accords with the congressional intent to 

provide California with the broadest 

possible discretion in setting regulations 

it finds protective of the public health 

and welfare.’’ 19

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

section 209 proceedings, but found that 

the opponents of the waiver were 

unable to meet their burden of proof 

even if the standard were a mere 

preponderance of the evidence. 

Although MEMA I did not explicitly 

consider the section 209 standards of 

proof concerning an authorization 

request for nonroad emission standards 

and testing procedures, there is nothing 

in the opinion that suggests the court’s 

analysis would not apply with equal 

force in such determinations. EPA’s past 

section 209 decisions have consistently 

made clear that: 

[E]ven in the two areas concededly 

reserved for Federal judgment by this 

legislation—the existence of ‘‘compelling and 

extraordinary’’ conditions and whether the 

standards are technologically feasible— 

Congress intended that the standards of EPA 

review of the State decision to be a narrow 

one.’’ 20

Furthermore, Congress intended that 

EPA’s review of California’s decisionmaking be narrow in scope.21 This has 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8059 

22 36 FR 17458 (August 31, 1971). Note that the 

‘‘more stringent’’ standard expressed here in 1971, 

was superseded by the 1977 amendments to section 

209, which established that California’s standards 

must be, in the aggregate, at least as protective of 

public health and welfare as applicable Federal 

standards. 

23MEMA I at 1121. 

24 Id. at 1126. 

25 Id. 

26 ‘‘Be It Further Resolved that the Board hereby 

determines that the regulations adopted herein will 

not cause the California emission standards, in the 

aggregate, to be less protective of public health and 

welfare than applicable federal standards.’’ CARB 

Resolution 00–3 at 6 (January 27, 2000), CARB’s 

Exhibit 2, EPA–HQ–OAR–2008–0004. 

27 ‘‘Be It Further Resolved that the Board hereby 

determines that the regulations approved herein 

will not cause the California emission standards, in 

the aggregate, to be less protective of public health 

and welfare than applicable federal standards.’’ 

CARB Resolution 04–43 at 6 (October 21, 2005), 

CARB’s Exhibit 9, EPA–HQ–OAR–2008–0670–0021. 

28See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

29H.R. Rep. No. 95–294, 95th Cong., 1st Sess., 

301–02 (1977)(cited in MEMA I, 627 F.2d at 1110). 

30CARB expressed its needs for its own emission 

control program in both of the rulemakings at issue 

here. (‘‘Be It Further Resolved that the Board hereby 

finds that separate California emission standards 

and test procedures are necessary to meet 

compelling and extraordinary conditions.’’ CARB 

Resolution 00–3 at 6 (January 27, 2000), CARB’s 

Exhibit 2; CARB Resolution 04–43 at 6 (October 21, 

2005), CARB’s Exhibit 9, EPA–HQ–OAR–2008– 

0670–0021.) 

31CARB’s Request Letter at 32, EPA–HQ–OAR– 

2008–0670–0002. 

32See, e.g., 74 FR 3030, 3033 (January 16, 2009); 

‘‘California State Nonroad Engine and Vehicle 

Pollution Control Standards; Decision of the 

Administrator (Authorization of In-Use Emission 

Standards for Transport Refrigeration Unit 

Engines),’’ EPA–HQ–OAR–2005–0123–0049, at 19, 

available at http://www.regulations.gov/search/ 

Regs/ 

home.html#documentDetail?R=090000648082352c 

(‘‘EPA has agreed with CARB, in earlier nonroad 

engine standards requests, that California’s 

continuing extraordinary conditions justify separate 

California programs.’’); 71 FR 75536 (December 15, 

2006). 

led EPA in the past to reject arguments 

that are not specified within the statute 

as grounds for denying a waiver or 

authorization: 

The law makes it clear that the waiver 

requests cannot be denied unless the specific 

findings designated in the statute can 

properly be made. The issue of whether a 

proposed California requirement is likely to 

result in only marginal improvement in air 

quality not commensurate with its cost or is 

otherwise an arguably unwise exercise of 

regulatory power is not legally pertinent to 

my decision under section 209, so long as the 

California requirement is consistent with 

section 202(a) and is more stringent than 

applicable Federal requirements in the sense 

that it may result in some further reduction 

in air pollution in California.22

Thus, EPA’s consideration of all the 

evidence submitted concerning this 

authorization decision is circumscribed 

by its relevance to those questions 

which the Administrator is directed to 

consider by section 209. 

Finally, opponents of the waiver bear 

the burden of showing whether 

California’s waiver request is 

inconsistent with section 202(a). As 

found in MEMA I, this obligation rests 

firmly with opponents in a section 209 

proceeding; the court held that: 

The language of the statute and its 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing, and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.23

The Administrator’s burden, on the 

other hand, is to determine that she has 

made a reasonable and fair evaluation of 

the information in the record when 

coming to the waiver decision. As the 

court in MEMA I stated, ‘‘[h]ere, too, if 

the Administrator ignores evidence 

demonstrating that the waiver should 

not be granted, or if [s]he seeks to 

overcome that evidence with 

unsupported assertions of [her] own, 

[s]he runs the risk of having [her] waiver 

decision set aside as arbitrary and 

capricious.’’ 24 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 25

III. Discussion 

A. California’s Protectiveness 

Determination 

Section 209(e)(2)(i) of the Act 

instructs that EPA cannot grant an 

authorization if the agency finds that 

CARB was arbitrary and capricious in 

its determination that its standards are, 

in the aggregate, at least as protective of 

public health and welfare as applicable 

Federal standards. CARB’s Board made 

a protectiveness determination in 

Resolution 00–3, dated January 27, 

2000, finding that sections 2111, 2112, 

2137, 2139, 2140, 2141, 2400, 2401, 

2403, 2420–27 and Appendix A to 

article 2.1, chapter 2, division 3 of Title 

13, California Code of Regulations, as 

amended, (the 2000 Rulemaking) will 

not cause the California emission 

standards, in the aggregate, to be less 

protective of public health and welfare 

than applicable Federal standards.26 A 

similar protectiveness determination 

was made in Resolution 04–43, dated 

October 21, 2005, with regard to 

amended sections 2420–2427 and new 

section 2425.1 and the three amended 

test procedures incorporated by 

reference therein to Title 13 of the 

California Code of Regulations (the 

2004–5 Rulemaking).27 CARB’s 

protectiveness determinations in both 

rulemakings were, therefore, based on 

comparisons to the Federal standards 

which demonstrate that CARB’s 

standards and test procedures align with 

the Federal program. 

In addition, EPA did not receive any 

comments stating that CARB’s nonroad 

CI requirements are not, in the 

aggregate, as stringent as applicable 

Federal standards. 

Therefore, based on the record before 

me, I cannot find that CARB’s nonroad 

CI regulations and amendments, as 

noted, would cause the California 

nonroad emission standards, in the 

aggregate, to be less protective of public 

health and welfare than applicable 

Federal standards. 

B. Need for California Standards To 

Meet Compelling and Extraordinary 

Conditions 

Section 209(e)(2)(ii) of the Act 

instructs that EPA cannot grant an 

authorization if the agency finds that 

California ‘‘does not need such 

California standards to meet compelling 

and extraordinary conditions * * *.’’ 

This criterion restricts EPA’s inquiry to 

whether California needs its own mobile 

source pollution program to meet 

compelling and extraordinary 

conditions, and not whether any given 

standards are necessary to meet such 

conditions.28 As to the need for the 

particular standards that are the subject 

of this decision, California is entrusted 

with the power to select ‘‘the best means 

to protect the health of its citizens and 

the public welfare.’’ 29 CARB has 

repeatedly demonstrated the existence 

of compelling and extraordinary 

conditions in California.30

EPA has not received any adverse 

comments to suggest that California no 

longer suffers from serious and unique 

air pollution problems. In its 

authorization request letter, CARB 

concluded that ‘‘there can be no doubt 

of the continuing existence of 

compelling and extraordinary 

conditions justifying California’s need 

for its own nonroad vehicle and engine 

emissions control program.’’ 31 EPA has 

repeatedly declined to find fault in 

California’s demonstrations of 

‘‘compelling and extraordinary 

conditions’’ when waiving preemption 

for motor vehicle emission standards 

and authorizing nonroad emission 

standards.32 Moreover, because EPA has 

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33See CARB’s ‘‘Staff Report: Initial Statement of 

Reasons for Rulemaking,’’ for a general list of offroad diesel engines that are excepted from this 

regulation (page 25) as well as a specific list of 

preempted applications (Appendix A at page 104). 

CARB’s Exhibit 11, EPA–HQ–OAR–2008–0670– 

0028. 

34MEMA I, 627, F.2d at 1126. 

35H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

36See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

FR 32182, 32183 (July 25, 1978); 41 FR 44209, 

44213 (October 7, 1976). 

37 41 FR 44209 (October 7, 1976). 

38H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

39See, e.g., 43 FR 32182 (July 25, 1978). 

40See, e.g., 51 FR 12391 (April 10, 1986) and 65 

FR 69673, 69674 (November 20, 2000). The first 

within-the-scope determination stated that a CARB 

request made subsequent to an EPA waiver, ‘‘exists 

within the meaning and intent of the waiver 

granted.’’ 37 FR 14831 (July 25, 1972). 

not received adverse public comment 

challenging California’s need for its own 

mobile source pollution control program 

or asserting any change from 

California’s previous demonstrations, I 

cannot deny the authorization based on 

a lack of compelling and extraordinary 

conditions. 

C. Consistency With Section 209 of the 

Clean Air Act 

Section 209(e)(2)(iii) of the Act 

instructs that EPA cannot grant an 

authorization if California’s standards 

and enforcement procedures are not 

consistent with section 209. As 

delineated above in Section II.A., EPA 

has historically evaluated this criterion 

for consistency with sections 209(a), 

209(e)(1), and 209(b)(1)(C). First, 

California’s nonroad CI engine emission 

standards are consistent with section 

209(a) because they do not apply to new 

motor vehicles or engines. Second, 

California’s nonroad CI engine emission 

standards are consistent with section 

209(e)(1) because they do not affect new 

farming or construction vehicles or their 

engines below 175 hp, or new 

locomotives or their engines.33 Third, 

the requirement that California’s 

standards be consistent with section 

209(b)(1)(C) of the Act effectively 

requires consistency with section 202(a) 

of the Act. 

California standards are inconsistent 

with section 202(a) of the Act if there is 

inadequate lead time to permit the 

development of technology necessary to 

meet those requirements, giving 

appropriate consideration to the cost of 

compliance within that time. 

California’s accompanying enforcement 

procedures would also be inconsistent 

with section 202(a) if the Federal and 

California test procedures were not 

consistent. 

The scope of EPA’s review of whether 

California’s action is consistent with 

section 202(a) is narrow. The 

determination is limited to whether 

those opposed to the authorization or 

waiver have met their burden of 

establishing that California’s standards 

are technologically infeasible, or that 

California’s test procedures impose 

requirements inconsistent with the 

Federal test procedure.34 EPA did not 

receive any comments suggesting that 

CARB’s standards are inconsistent with 

section 202(a); therefore, I cannot deny 

California’s authorization based on the 

standard of review for consistency with 

section 209. 

1. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

feasibility.35 Section 202(a)(2) states, in 

part, that any regulation promulgated 

under its authority ‘‘shall take effect 

after such period as the Administrator 

finds necessary to permit the 

development and application of the 

requisite technology, giving appropriate 

consideration to the cost of compliance 

within such period.’’ Section 202(a) thus 

requires the Administrator to first 

determine whether adequate technology 

already exists; or if it does not, whether 

there is adequate time to develop and 

apply the technology before the 

standards go into effect. The latter 

scenario also requires the Administrator 

to decide whether the cost of developing 

and applying the technology within that 

time is feasible. Previous EPA waivers 

are in accord with this position.36

For example, a previous EPA waiver 

decision considered California’s 

standards and enforcement procedures 

to be consistent with section 202(a) 

because adequate technology existed as 

well as adequate lead time to implement 

that technology.37 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.38

As CARB notes, all three categories of 

the nonroad CI regulations have been 

written to align and harmonize 

California standards with Federal 

standards and testing procedures. 

Notably, because California’s standards 

align to Federal standards, these are the 

same numerical standards that EPA, in 

the course of its own rulemaking under 

Clean Air Act authority, has already 

determined to be technologically 

feasible. 

EPA did not receive any comments 

suggesting that CARB’s standards and 

testing procedures are technologically 

infeasible. Consequently, based on the 

record before me, I cannot deny 

California’s authorization based on 

technological infeasibility. 

2. Consistency of Certification 

Procedures 

California’s standards and 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if the California test procedures 

were to impose certification 

requirements inconsistent with the 

Federal certification requirements. Such 

inconsistency means that manufacturers 

would be unable to meet both the 

California and Federal testing 

requirements using the same test vehicle 

or engine.39

CARB makes clear that its nonroad CI 

certification procedures, for all three 

power categories, align with Federal 

certification procedures so that a 

manufacturer can use the same test 

engine to certify for both emissions 

programs. 

EPA received no comments suggesting 

that CARB’s nonroad CI requirements 

pose a testing procedure consistency 

problem. Therefore, based on the record 

before me, I cannot find that CARB’s 

testing procedures are inconsistent with 

section 202(a). I cannot, then, deny 

CARB’s request based on this criterion. 

D. Within-the-Scope Authorizations 

CARB suggests in its request letter 

that since the new requirements for two 

of the categories are amendments to 

previously authorized California 

standards and that all three categories of 

regulations align California 

requirements to Federal requirements, 

this request should be found as withinthe-scope of previous EPA 

authorizations. Typically, if California 

acts to amend a previously authorized 

standard or accompanying enforcement 

procedure, the amendment may be 

considered within-the-scope of a 

previously granted authorization 

provided that it: (1) Does not undermine 

California’s determination that its 

standards, in the aggregate, are as 

protective of public health and welfare 

as applicable federal standards, (2) does 

not affect consistency with section 209 

of the Act, and (3) raises no new issues 

affecting EPA’s previous 

authorization.40

Only one sub-set of the standards for 

which CARB requests a within-thescope confirmation meets EPA’s abovenoted third criterion for within-thescope confirmation. Because the 

smallest category of nonroad CI engines 

were merely re-codified as a result of 

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41 See 50 FR 20126 at 20127 (May 14, 1985)(‘‘[B]y 

extending California’s standards and test 

procedures to vehicles not previously covered, 

these amendments do raise significant new issues 

not considered in prior waiver decisions.’’) 

42See, e.g., 71 FR 44027 at 44028 (August 3, 

2006)(‘‘EPA believed it possible that CARB’s 

amendments do in fact raise ‘‘new issues’’ as they 

impose new more stringent standards * * *’’) and 

51 FR 6308 at 6309 (February 21, 1986)(‘‘[T]hese 

amendments do raise significant new issues not 

considered in prior waiver decisions. In effect, 

California’s amendments establish new 

standards * * *’’). 

43To the extent that the 2000 rulemaking’s 

amendments to the smallest category are construed 

as not within-the-scope of EPA’s prior 

authorization, then a full authorization is 

appropriate and granted. 

the 2000 Rulemaking, that sub-set of 

standards from the 2000 rulemaking 

does meet the third criterion for a 

within-the-scope confirmation. Indeed, 

the mere re-codification of previously 

authorized standards that does not 

increase numerical stringency does not 

raise any new issues that affect EPA’s 

prior authorization. 

Even though the first two within-thescope criteria have already been 

established above for all three engine 

categories, the third criterion prevents 

EPA from considering this entire request 

as within-the-scope of EPA’s prior 

authorizations. First, since the middle 

category of engines has not been 

previously authorized, it very clearly 

presents a ‘‘new issue’’ that has not 

previously been subject to an 

authorization request.41 Additionally, 

CARB increased the stringency of its 

own standards for the smallest category 

of nonroad CI engines in its 2004–05 

Rulemaking and for the largest category 

of nonroad CI engines in both its 2000 

and 2004–05 Rulemakings. EPA has 

stated in prior waiver and authorization 

determinations that increases in 

numerical stringency of standards are 

‘‘new issues’’ for which a full waiver or 

authorization is required.42 EPA, 

therefore, believes it appropriate to go 

beyond an examination of whether the 

new requirements affect the prior 

consistency with section 202(a) finding 

and, in this context, requires a new 

analysis of whether the new 

requirements standing on their own are 

consistent with section 209. As detailed 

already, above in Section III, EPA finds 

that CARB has demonstrated that it 

meets the requirements for a full section 

209(e) authorization for all three 

categories of nonroad CI engines. EPA, 

therefore, believes a full authorization is 

appropriate for the new middle category 

of standards and the more stringent 

standards for the smallest and largest 

categories.43

As an alternative to the within-thescope confirmation, California proposes 

that EPA adopt and apply a new 

‘‘harmonization construct,’’ under which 

EPA would limit its review of 

California’s standards and 

presumptively authorize California to 

enforce more stringent California 

standards if those standards align 

with—but do not surpass—EPA’s 

Federal emission standards. Although 

EPA has considered CARB’s proposed 

harmonization construct, we did not 

receive any comment on this 

authorization request, which leaves us 

with no public input on the 

appropriateness of adopting such a 

construct. Lacking public input on this 

authorization request, the Agency does 

not believe it appropriate to adopt such 

a construct at this time, without further 

consideration. While EPA is not 

adopting this proposed construct at this 

time, we may consider and apply it in 

future waivers if appropriate. 

IV. Decision 

EPA’s analysis finds that the criteria 

for granting a full authorization have 

been met for these regulations and 

amendments. All three engine categories 

require a full authorization because 

‘‘new issues’’ are presented by new or 

more stringent standards in each 

category. For the smallest category of 

engines (those less than 19kW), 

numerical emission standards were 

raised in CARB’s 2004–05 Rulemaking. 

These standards require and have met 

the criteria for a full authorization. 

CARB’s amendments to this category’s 

standards in its 2000 Rulemaking did 

not increase the standards’ stringency 

and, thus, EPA can confirm that those 

standards fall within-the-scope of EPA’s 

previous authorization for those 

standards. CARB is newly regulating the 

middle category of engines (those 

between 19 kW and 130 kW). EPA 

determined that this entire category 

presents new issues for which it must 

conduct a full authorization evaluation. 

Upon application of that evaluation, 

EPA has determined that CARB has met 

the requirements for a full 

authorization. For the largest category of 

engines (those greater than 130 kW), 

CARB has raised emission standards in 

both of its rulemakings. The increased 

stringency raised new issues for EPA to 

consider and required EPA to apply a 

full authorization analysis. Upon 

evaluation, EPA has determined that 

CARB has met the criteria for a full 

authorization for these standards. 

The Administrator has delegated the 

authority to grant California a section 

209(e) authorization to enforce its own 

emission standards for nonroad engines 

to the Assistant Administrator for Air 

and Radiation. Having given 

consideration to all the material 

submitted for this record, and other 

relevant information, I find that I cannot 

make the determinations required for a 

denial of an authorization pursuant to 

section 209(e) of the Act. Therefore, I 

grant authorization to the State of 

California with respect to its new 

nonroad CI engine requirements as set 

forth above. 

My decision will affect not only 

persons in California but also 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce 

engines for sale in California. For this 

reason, I determine and find that this is 

a final action of national applicability 

for purposes of section 307(b)(1) of the 

Act. 

Pursuant to 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 April 26, 2010. Judicial 

review of this final action may not be 

obtained in subsequent enforcement 

proceedings, pursuant to section 

307(b)(2) of the Act. 

As with past authorization and 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. 

Further, the Congressional Review 

Act, 5 U.S.C. 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: February 5, 2010. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2010–3237 Filed 2–22–10; 8:45 am] 

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