72846 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 

Issued in Washington, DC, on November 

30, 2012. 

John A. Anderson, 

Manager, Natural Gas Regulatory Activities, 

Office of Oil and Gas Global Security and 

Supply, Office of Fossil Energy. 

[FR Doc. 2012–29475 Filed 12–5–12; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. EL13–25–000] 

H.Q. Energy Services (U.S.) Inc. v. ISO 

New England Inc.; Notice of Complaint 

Take notice that on November 28, 

2012, pursuant to section 206 of the 

Rules of Practice and Procedure of the 

Federal Energy Regulatory Commission 

(Commission), 18 CFR 385.206, H.Q. 

Energy Services (U.S.) Inc. 

(Complainant) filed a formal complaint 

against ISO New England Inc. 

(Respondent), requesting the 

Commission to issue an order requiring 

the Respondent to revise its Forward 

Capacity Market tariff rules to reflect 

that the Respondent has the burden to 

change its standards for determining 

deliverability for import capacity 

resources, as more fully explained in the 

complaint. 

The Complainant certifies that copies 

of the complaint were served on the 

contacts for the Respondent as listed on 

the Commission’s list of Corporate 

Officials. 

Any person desiring to intervene or to 

protest this filing must file in 

accordance with Rules 211 and 214 of 

the Commission’s Rules of Practice and 

Procedure (18 CFR 385.211, 385.214). 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceeding. Any person wishing to 

become a party must file a notice of 

intervention or motion to intervene, as 

appropriate. The Respondent’s answer 

and all interventions, or protests must 

be filed on or before the comment date. 

The Respondent’s answer, motions to 

intervene, and protests must be served 

on the Complainants. 

The Commission encourages 

electronic submission of protests and 

interventions in lieu of paper using the 

‘‘eFiling’’ link at http://www.ferc.gov. 

Persons unable to file electronically 

should submit an original and 14 copies 

of the protest or intervention to the 

Federal Energy Regulatory Commission, 

888 First Street NE., Washington, DC 

20426. 

This filing is accessible on-line at 

http://www.ferc.gov, using the 

‘‘eLibrary’’ link and is available for 

review in the Commission’s Public 

Reference Room in Washington, DC. 

There is an ‘‘eSubscription’’ link on the 

web site that enables subscribers to 

receive email notification when a 

document is added to a subscribed 

docket(s). For assistance with any FERC 

Online service, please email 

FERCOnlineSupport@ferc.gov, or call 

(866) 208–3676 (toll free). For TTY, call 

(202) 502–8659. 

Comment Date: 5:00 p.m. Eastern 

Time on December 21, 2012. 

Dated: November 30, 2012. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2012–29464 Filed 12–5–12; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket Nos. EC12–145–000; ER12–2681– 

000; EL12–107–000] 

ITC Holdings Corp.; Entergy 

Corporation; Midwest Independent 

Transmission System Operator, Inc.; 

Notice of Filing 

Take notice that, on November 20, 

2012, ITC Holdings Corp. and Entergy 

Services, Inc. (together, Applicants) 

submitted a filing styled as an answer in 

the above-referenced proceedings 

attaching a series of confidential 

workpapers and additional background 

information relating to Applicants’ joint 

application that was filed in the abovereferenced proceedings on September 

24, 2012 under sections 203 and 205 of 

the Federal Power Act. (See Joint 

Application for Authorization of 

Acquisition and Disposition of 

Jurisdictional Transmission Facilities, 

Approval of Transmission Service 

Formula Rate and Certain Jurisdictional 

Agreements, and Petition for 

Declaratory Order on Application of 

Section 305(a) of the Federal Power Act, 

Docket Nos. EC12–145–000, ER12– 

2681–000, and EL12–107–000). 

Applicants’ filing is hereby noticed as 

an amendment to the application. 

Any person desiring to intervene or to 

protest this filing must file in 

accordance with Rules 211 and 214 of 

the Commission’s Rules of Practice and 

Procedure (18 CFR 385.211, 385.214). 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

these proceedings. Any person wishing 

to become a party must file a notice of 

intervention or motion to intervene, as 

appropriate. Such notices, motions, or 

protests must be filed on or before the 

comment date. Anyone filing a motion 

to intervene or protest must serve a copy 

of that document on Applicants and all 

of the parties in these proceedings. 

The Commission encourages 

electronic submission of protests and 

interventions in lieu of paper using the 

‘‘eFiling’’ link at http://www.ferc.gov. 

Persons unable to file electronically 

should submit an original and 14 copies 

of the protest or intervention to the 

Federal Energy Regulatory Commission, 

888 First Street NE., Washington, DC 

20426. 

This filing is accessible on-line at 

http://www.ferc.gov, using the 

‘‘eLibrary’’ link and is available for 

review in the Commission’s Public 

Reference Room in Washington, DC. 

There is an ‘‘eSubscription’’ link on the 

Web site that enables subscribers to 

receive email notification when a 

document is added to a subscribed 

docket(s). For assistance with any FERC 

Online service, please email 

FERCOnlineSupport@ferc.gov, or call 

(866) 208–3676 (toll free). For TTY, call 

(202) 502–8659. 

Comment Date: January 22, 2013. 

Dated: November 30, 2012. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2012–29465 Filed 12–5–12; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9758–2] 

California State Nonroad Engine 

Pollution Control Standards; In-Use 

Portable Diesel Engines 50 

Horsepower and Greater; Notice of 

Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision. 

SUMMARY: EPA is granting the California 

Air Resources Board’s (CARB’s) request 

for an authorization of its airborne toxic 

control measure for in-use portable 

diesel-fueled compression-ignition 

engines 50 horsepower and greater. 

DATES: Petitions for review must be filed 

by February 4, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2011–0101. All 

documents relied upon in making this 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 72847 

1Letter from Catherine Witherspoon, Executive 

Officer, California Air Resources Board to 

Administrator Stephen L. Johnson, December 5, 

2006, EPA–HQ–OAR–2011–0101–002. 2See California Air Resources Board (‘‘CARB’’), 

‘‘Authorization Request Support Document,’’ 

December 5, 2006, EPA–HQ–OAR–2011–0101– 

0003, at 4 (hereinafter ‘‘CARB Support Document’’). 3Level 3 p.m. control technology refers to a 

control technology that has been verified to achieve 

PM reductions of at least 85 percent under the 

CARB ‘‘Verification Procedure, Warranty and InUse Compliance Requirements for In-Use Strategies 

to Control Emissions from Diesel Engines,’’ 13 

California Code of Regulations (CCR) sections 2700– 

2710. 

4The PDE regulation contains a fifth substantive 

requirement that pertains to the fuels that may be 

used in in-use portable equipment engines, but this 

fuels requirement is not preempted by CAA section 

209(e). See CARB Support Document at 2. 

5See CARB Support Document at 4. 

6See CARB Support Document at 5. 

7See CARB Support Document at 10. 

8See CARB Support Document at 11. 

9See CARB Support Document at 12–13. 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW, Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

working days from 8:30 a.m. to 4:30 

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

Center’s Web site is http://www.epa.gov/ 

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-rDocket@epa.gov, the telephone number 

is (202) 566–1742, and the fax number 

is (202) 566–9744. 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 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2011–0101 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. 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. 

EPA’s Office of Transportation and 

Air Quality (‘‘OTAQ’’) maintains a Web 

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

http://www.epa.gov/otaq/cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

Kristien G. Knapp, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue (6405J), NW., 

Washington, DC 20460. Telephone: 

(202) 343–9949. Fax: (202) 343–2800. 

Email: knapp.kristien@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. California’s Portable Diesel 

Equipment Regulation 

In a letter dated December 5, 2006, 

CARB submitted to EPA its request 

pursuant to section 209 of the Clean Air 

Act (‘‘CAA’’ or ‘‘the Act’’), regarding its 

regulations to enforce its airborne toxic 

control measure (ATCM) for in-use 

portable diesel-fueled engines 50 brakehorsepower (hp) and greater (CARB’s 

‘‘PDE’’ regulation).1 As defined in 

CARB’s regulation, ‘‘portable engines’’ 

are engines that may be moved easily 

from location to location.2 The engines 

are used to power a variety of 

equipment, including pumps, ground 

support equipment at airports, cranes, 

oil-well drilling and workover rigs, 

power generators, dredging equipment, 

rock crushing and screening equipment, 

welding equipment, woodchippers, and 

compressors. To be portable, the engine 

must not reside at any one location for 

more than 12 consecutive months. A 

location is defined as any place of 

operation or single site at a building, 

structure, facility, installation or well 

site. CARB expects the PDE regulation 

to reduce diesel particulate matter (PM) 

emissions by 95 percent, and significant 

health costs will be saved by reduced 

mortality, reduced incidences of cancer, 

chronic bronchitis, asthma and fewer 

hospital visits caused by pneumonia 

and asthma-related conditions. 

CARB’s authorization request covers 

four primary substantive requirements: 

(1) Starting on January 1, 2010, all 

portable engines in California must be 

certified to meet a federal or California 

standard for newly manufactured 

nonroad engines; (2) Starting on January 

1, 2020, all portable engines in 

California must be either (a) certified to 

meet federal Tier 4 emission standards, 

(b) equipped with a properly 

functioning CARB Level-3 verified 

technology,3 or (c) equipped with a 

combination of control strategies that 

have been verified together with CARB 

to achieve at least an 85 percent 

reduction in diesel PM emissions; (3) 

All portable engines that, prior to 

January 1, 2006, have not been either 

registered in CARB’s Portable 

Equipment Registration Program 

(‘‘PERP’’) or permitted under the permit 

program of an air quality management 

district or air pollution control district 

must meet the most stringent of the 

federal or California emission standards 

for nonroad engines at the time the 

engine is either registered in the PERP 

or registered for a permit; and (4) Each 

fleet of portable engines must comply 

with increasingly more stringent 

weighted PM emission fleet averages 

that apply on three different deadlines 

(January 1, 2013, January 1, 2017 and 

January 1, 2020).4 Owners of in-use 

equipment have options available to 

meet the CARB requirements.5 These 

include: purchasing new equipment 

with cleaner engines, repowering 

existing equipment with cleaner 

engines, using verified add-on control 

devices on existing equipment and 

engines, switching to alternative diesel 

fuels or alternative fuels, or electrifying 

some or all of the in-use fleet and 

receiving emission credits. 

Certain types of diesel-fueled engines 

are exempt from the PDE regulations. 

Engines used to propel mobile 

applications are exempt, including dualuse engines that both propel the 

equipment and operate the attached 

equipment.6 Dual-fuel diesel pilot 

engines, military tactical support 

equipment, and ground support 

equipment (used at airports) are also 

exempt from the regulation. PDEs that 

are used solely in emergency 

applications or are ‘‘low-use’’ engines 

that run less than eighty hours annually 

are also not subject to the fleet emission 

standards.7

Credits toward satisfying the fleet 

standard can be earned by opting to use 

electric power on a given project in lieu 

of a portable diesel engine, if more than 

200 hours of grid power are used.8

Under certain circumstances, 

alternative-fueled engines operating 

more than 100 hours per year can be 

allowed into the fleet. Also, fleet owners 

who purchase federal Tier 4 engines 

prior to January 1, 2013 may count the 

engine twice in calculating the fleet 

weighted diesel PM emission rates for 

the 2013 deadline, and the same 

allowance is made for Tier 4 engines 

purchased prior to the 2017 deadline. 

The PDE regulation also has 

recordkeeping and reporting 

requirements.9 Records must be kept 

only for engines taking advantage of the 

incentives and exemptions described 

above. For example, records must be 

kept for engines with hourly limitations, 

like low-use engines, or hourly 

minimums, like alternative-fuel engines. 

mstockstill on DSK4VPTVN1PROD with 

72848 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 

10See CARB Support Document at 2. 

11CARB, Resolution 04–7, EPA–HQ–OAR–2011– 

0101–0004. 

12CARB Support Document at 2. See also CARB 

Executive Order G–04–080, EPA–HQ–OAR–2011– 

0101–0005. 

13CARB, Executive Order G–04–080, EPA–HQ– 

OAR–2011–0101–0005. 

14CARB, Final Regulation Order, EPA–HQ–OAR– 

2011–0101–0006. 

15 59 FR 36969 (July 20, 1994). 16See 62 FR 67733 (December 30, 1997). The 

applicable regulations, now in 40 CFR part 1074, 

subpart B, § 1074.105, provide: 

(a) The Administrator will grant the authorization 

if California determines that its standards will be, 

in the aggregate, at least as protective of public 

health and welfare as otherwise applicable federal 

standards. 

(b) The authorization will not be granted if the 

Administrator finds that any of the following are 

true: 

(1) California’s determination is arbitrary and 

capricious. 

(2) California does not need such standards to 

meet compelling and extraordinary conditions. 

(3) The California standards and accompanying 

enforcement procedures are not consistent with 

section 209 of the Act. 

(c) In considering any request from California to 

authorize the state to adopt or enforce standards or 

other requirements relating to the control of 

emissions from new nonroad spark-ignition engines 

smaller than 50 horsepower, the Administrator will 

give appropriate consideration to safety factors 

(including the potential increased risk of burn or 

fire) associated with compliance with the California 

standard. 

17See 59 FR 36969 (July 20, 1994). 

18 MEMA I, 627 F.2d at 1122. 

19 Id. 

20 Id. 

21 Id. 

Status reports and compliance 

statements must be submitted to CARB 

and include information identifying 

each engine and its emission rate, as 

well as the fleet emission rate. The local 

air districts and CARB both are given 

authority to review or seek enforcement 

action for violation of the fleet emission 

standards, and either can take 

appropriate enforcement action as 

necessary. 

CARB’s PDE regulation was 

considered at the Board’s public hearing 

on February 26, 2004.10 The proposed 

regulations were approved, with 

modifications, in Resolution 04–7, in 

which the CARB Board directed the 

CARB Executive Officer to adopt the 

PDE regulation after making the 

proposed language available for public 

comment for a supplemental period of 

fifteen days.11 The public comment 

period ended June 1, 2004, and the 

CARB Executive Officer considered the 

two submitted written comments and 

determined that the comments did not 

require the regulation to be modified or 

reconsidered by the CARB Board.12 The 

Executive Officer adopted the ATCM by 

executive order G–04–080 on December 

23, 2004.13 California’s Office of 

Administrative Law approved the PDE 

regulation on February 9, 2005, and the 

regulations were adopted at 93116– 

93116.5, title 17, California Code of 

Regulations, effective March 11, 2005.14

B. Nonroad 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 new 

nonroad engines or vehicles. States are 

also preempted from adopting and 

enforcing standards and other 

requirements related to the control of 

emissions from non-new nonroad 

engines or vehicles. Section 209(e)(2) 

requires the Administrator, after notice 

and opportunity for public hearing, to 

authorize California to enforce such 

standards and other requirements, 

unless EPA makes one of three findings. 

In addition, other states with attainment 

plans may adopt and enforce such 

regulations if the standards, and 

implementation and enforcement 

procedures, are identical to California’s 

standards. On July 20, 1994, EPA 

promulgated a rule that sets forth, 

among other things, regulations 

providing 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.15

EPA later revised these regulations in 

1997.16 As stated in the preamble to the 

1994 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).17

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 and enforcement procedures 

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. 

C. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

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

(‘‘MEMA I’’), the U.S. Court of Appeals 

stated that the Administrator’s role in a 

section 209 proceeding is to: 

consider 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 of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.18

The court in MEMA I considered the 

standards of proof under section 209 for 

the two findings related to granting a 

waiver for an ‘‘accompanying 

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.’’ 19

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.20 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.21

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

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 standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ as 

compared to accompanying enforcement 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 72849 

22See, e.g., 40 FR 21102–103 (May 28, 1975). 

23 MEMA I, 627 F.2d at 1121. 

24 Id. at 1126. 

25 Id. 

26See 76 FR 7196 (February 9, 2011). 

27EPA, ‘‘Memorandum from Cassie Weaver to 

Docket EPA–HQ–OAR–2011–0101,’’ EPA–HQ– 

OAR–2011–0101–0029. 

28 ‘‘BE IT FURTHER RESOLVED that the Board 

hereby determines that pursuant to Title II, section 

209(e)(2) of the federal Clean Air Act, as amended 

in 1990, that the emission standards and other 

requirements related to the control of emissions 

adopted as part of this ATCM are, in the aggregate, 

at least as protective of public health and welfare 

as applicable federal standards, that California 

needs the adopted standards to meet compelling 

and extraordinary conditions, and that the adopted 

standards and accompanying enforcement 

procedures are consistent with the provisions of 

section 209.’’ CARB, Resolution 04–7, EPA–HQ– 

OAR–2011–0101–0004. 

29CARB Support Document at 19. See also CARB, 

Resolution 04–7, EPA–HQ–OAR–2011–0101–0004. 

30CARB Support Document at 19. 

31 Id. 

32See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

33CARB, ‘‘Resolution 04–7,’’ EPA–HQ–OAR– 

2011–0101–0004. 

34 49 FR 18887, 18890 (May 3, 1984); see also 76 

FR 34693 (June 14, 2011), 74 FR 32744, 32763 (July 

8, 2009), and 73 FR 52042 (September 8, 2008). 

procedures, there is nothing in the 

opinion to suggest that the court’s 

analysis would not apply with equal 

force to such determinations. EPA’s past 

waiver 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.’’ 22

Opponents of the waiver bear the 

burden of showing that the criteria for 

a denial of California’s waiver request 

have been met. As found in MEMA I, 

this obligation rests firmly with 

opponents of the waiver in a section 209 

proceeding: 

[t]he language of the statute and its legislative 

history indicate that California’s regulations, 

and California’s determinations that they 

must 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 make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

As the court in MEMA I stated: ‘‘here, 

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 24 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 25

D. EPA’s Administrative Process in 

Consideration of California’s PDE 

Regulation 

Upon receipt of CARB’s request, EPA 

offered an opportunity for a public 

hearing, and requested written comment 

on issues relevant to a full section 

209(e) authorization analysis, by 

publication of a Federal Register notice 

on February 9, 2011.26 Specifically, we 

requested comment on: (a) Whether 

CARB’s determination that its 

standards, in the aggregate, are at least 

as protective of public health and 

welfare as applicable federal standards 

is arbitrary and capricious, (b) whether 

California needs such standards to meet 

compelling and extraordinary 

conditions, and (c) whether California’s 

standards and accompanying 

enforcement procedures are consistent 

with section 209 of the Act. 

In response to EPA’s February 9, 2011 

Federal Register notice, EPA received 

one request for a public hearing, which 

was withdrawn, and no public 

comments.27

II. 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 

California 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. The 

California Air Resources Board made a 

protectiveness determination in 

Resolution 04–7, finding that 

California’s PDE regulations will not 

cause the California emission standards, 

in the aggregate, to be less protective of 

public health and welfare than 

applicable federal standards.28 CARB 

presents that California’s PDE 

regulations will be, in the aggregate, 

‘‘undisputedly at least as stringent as 

applicable federal regulations’’ because 

‘‘there are no federal standards for inuse portable engines.’’ 29 CARB received 

no information calling this 

determination into question.30

Accordingly, CARB concludes that the 

protectiveness determination ‘‘clearly is 

not arbitrary or capricious.’’ 31

EPA did not receive any comments 

challenging California’s protectiveness 

determination. Therefore, based on the 

record before us, EPA finds that 

opponents of the authorization have not 

shown that California 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. 

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.32 As discussed above, for 

over forty years CARB has repeatedly 

demonstrated the need for its mobile 

source emissions program to address 

compelling and extraordinary 

conditions in California. In its 

Resolution 04–7, CARB affirmed its 

longstanding position that California 

continues to need its own motor vehicle 

and engine program to meet its serious 

air pollution problems.33 Likewise, EPA 

has consistently recognized that 

California continues to have the same 

‘‘geographical and climatic conditions 

that, when combined with the large 

numbers and high concentrations of 

automobiles, create serious pollution 

problems.’’ 34 Furthermore, no 

commenter has presented any argument 

or evidence to suggest that California no 

longer needs a separate mobile source 

emissions program to address 

compelling and extraordinary 

conditions in California. Therefore, EPA 

has determined that we cannot deny 

California an authorization for its PDE 

regulation under section 209(e)(2)(ii). 

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 

described above, EPA has historically 

evaluated this criterion for consistency 

with sections 209(a), 209(e)(1), and 

209(b)(1)(C). 

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72850 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 

35CARB Support Document at 5 (‘‘Engines used 

to propel * * * motor vehicles are not regulated by 

the ATCM.’’) Also, ‘‘the ATCM neither applies to 

motor vehicles that are preempted under 209(a) or 

to new engines less than 175 hp used in farm and 

construction equipment and vehicles or to new 

locomotives or locomotive engines.’’ Id. at 21. 

36CARB Support Document at 18. 

37 Id. 

38 Id. 

39 Id. 

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

41H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

42See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

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

44213 (October 7, 1976). 

43 41 FR 44209 (October 7, 1976). 

44H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

45CARB Support Document at 22. 

46See CARB Support Document at 4, 22. 

47 Id. at 22. 

48 Id. 

49 Id. at 22. See also id. at 22–26. 

50 Id. at 26. 

51CARB, ‘‘CARB Staff Report: Initial Statement of 

Reasons for Proposed Rulemaking, Appendix G: 

Economic Impact Analysis Methodology,’’ January 

2004, EPA–HQ–OAR–2011–0101–0022, at G–2. 

1. Consistency With Section 209(a) 

To be consistent with section 209(a) 

of the Clean Air Act, California’s ATCM 

for portable diesel engines must not 

apply to new motor vehicles or new 

motor vehicle engines. California’s PDE 

regulation expressly apply only to inuse nonroad engines and do not apply 

to engines used in motor vehicles as 

defined by section 216(2) of the Clean 

Air Act.35 No commenter presented 

otherwise. Therefore, EPA cannot deny 

California’s request on the basis that 

California’s PDE regulation are not 

consistent with section 209(a). 

2. Consistency With Section 209(e)(1) 

To be consistent with section 

209(e)(1) of the Clean Air Act, 

California’s ATCM for portable diesel 

engines must not affect new farming or 

construction vehicles or engines that are 

below 175 horsepower, or new 

locomotives or their engines. CARB 

presents that its PDE regulation does not 

apply to new locomotives or locomotive 

engines.36 To the extent that an owner 

or operator elects to meet the standards 

established by the PDE regulation by 

replacing existing equipment with new 

equipment, or repowering existing 

equipment with new engines, the PDE 

regulation requires the use of engines 

meeting federal and California 

certification requirements for new 

engines.37 Therefore, CARB states, ‘‘the 

ATCM does not establish emission 

standards that are otherwise 

preempted’’ under Clean Air Act section 

209(e)(1).38 CARB received no 

information calling this determination 

into question.39 No commenter 

presented otherwise to EPA. Therefore, 

EPA cannot deny California’s request on 

the basis that California’s PDE 

regulation is not consistent with section 

209(e)(1). 

3. Consistency With Section 209(b)(1)(C) 

The requirement that California’s 

standards be consistent with section 

209(b)(1)(C) of the Clean Air 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 timeframe. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if federal and California test 

procedures conflicted. 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 procedures.40

a. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

feasibility.41 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.42 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.43 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.44

CARB presents that its PDE regulation 

satisfies the technological feasibility and 

lead time criteria because CARB either 

has ‘‘demonstrated that the necessary 

technology presently exists to meet the 

established standards or has specifically 

identified the projected control 

technology * * * and has explained its 

reasons for believing that each of the 

steps can be completed in the time 

available.’’ 45 CARB states that the 

individual portable engine requirements 

and the initial fleet average 

requirements which take effect in 2013 

will likely be met by purchasing new 

equipment with cleaner engines or 

repowering existing equipment with 

cleaner engines.46 In addition to engine 

replacement, owners and operators of 

portable diesel engines will likely use 

verified diesel particulate matter retrofit 

strategies to meet the two subsequent 

fleet average requirements that take 

effect in 2017 and 2020.47

CARB presents that the individual 

portable engine requirements are 

technologically feasible in the time 

provided because they parallel federal 

emission standards for off-road 

compression ignition engines, set forth 

in 40 CFR parts 89 and 1039, for which 

the EPA made express findings of 

technological feasibility.48 CARB has 

established a verification program for 

diesel particulate matter retrofit 

technologies, and based on the activity 

of that program, presents that there is a 

solid base of control technology to meet 

the fleet average requirements in the 

PDE regulation.49 Finally, owners and 

operators of portable diesel engines will 

not be required to use retrofit 

technologies until 2017, which CARB 

found to be ‘‘ample lead time to allow 

the development of the necessary 

control techniques.’’ * * * 50 CARB 

expects that the costs associated with 

the PDE regulation will be generated by 

the early replacement or repower of 

portable engines, prior to the end of the 

engine’s useful life, and will range from 

$135–$220 per horsepower.51

EPA did not receive any comments 

suggesting that CARB’s standards and 

test procedures are technologically 

infeasible and no information to 

contradict CARB’s cost estimates. 

Consequently, based on the record, EPA 

cannot deny California’s authorization 

based on technological infeasibility. 

b. Consistency of Certification 

Procedures 

California’s standards and 

accompanying enforcement procedures 

would also be inconsistent with section 

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Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 72851 

52See, e.g., 43 FR 32182 (July 25, 1978). 

53CARB Support Document at 27. 

1California Air Resources Board (CARB), Request 

for Authorization, December 5, 2008, EPA–HQ– 

OAR–2011–0102–0002. 

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.52 CARB presents that the PDE 

regulation raises no issue regarding test 

procedure consistency because the 

regulation does not establish any test 

procedures for which there are 

comparable federal test procedures.53

EPA received no comments suggesting 

that CARB’s PDE regulation poses any 

test procedure consistency problem. 

Therefore, based on the record, EPA 

cannot find that CARB’s testing 

procedures are inconsistent with section 

202(a). Consequently, EPA cannot deny 

CARB’s request based on this criterion. 

E. Authorization Determination for 

California’s PDE Regulation 

After a review of the information 

submitted by CARB, EPA finds that 

those opposing California’s request have 

not met the burden of demonstrating 

that authorization for California’s PDE 

regulation should be denied based on 

any of the statutory criteria of section 

209(e)(2). For this reason, EPA finds that 

an authorization for California’s PDE 

regulation should be granted. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating California’s PDE 

regulation and CARB’s submissions, 

EPA is granting an authorization to 

California for its PDE regulation. 

My decision will affect not only 

persons in California, but also entities 

outside the State who must comply with 

California’s requirements. 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 February 4, 2013. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

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: November 29, 2012. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2012–29511 Filed 12–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9758–1] 

California State Nonroad Engine 

Pollution Control Standards; Portable 

Equipment Registration Program; 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: EPA is granting authorization 

for the California Air Resources Board’s 

(CARB’s) amendments to its Portable 

Equipment Registration Program (PERP), 

and confirming that certain portions of 

CARB’s PERP program is within the 

scope of previous EPA authorizations. 

PERP is a voluntary statewide program 

that enables registration of nonroad 

engines and equipment that operate at 

multiple locations across California, so 

that the engine and equipment owners 

can operate throughout California 

without obtaining permits from local air 

pollution control districts. 

DATES: Petitions for review must be filed 

by February 4, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2011–0102. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

working days from 8:30 a.m. to 4:30 

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

Center’s Web site is http://www.epa.gov/ 

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-rDocket@epa.gov, the telephone number 

is (202) 566–1742, and the fax number 

is (202) 566–9744. 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 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2011–0102 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. 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. 

EPA’s Office of Transportation and 

Air Quality (‘‘OTAQ’’) maintains a Web 

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

http://www.epa.gov/otaq/cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

Kristien G. Knapp, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue (6405J) NW., 

Washington, DC 20460. Telephone: 

(202) 343–9949. Fax: (202) 343–2800. 

Email: knapp.kristien@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. California’s PERP Authorization 

Request 

In a letter dated December 5, 2008, 

CARB submitted to EPA its request 

pursuant to section 209 of the Clean Air 

Act (‘‘CAA’’ or ‘‘the Act’’), regarding its 

Portable Equipment Registration 

Program (‘‘PERP’’).1 The PERP was 

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