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[Federal Register Volume 76, Number 27 (Wednesday, February 9, 2011)]
[Notices]
[Pages 7196-7198]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2855]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9264-4]

California State Nonroad Engine Pollution Control Standards; 
Request for Authorization of Airborne Toxic Control Measure for In-Use 
Portable Diesel Engines 50 Horsepower and Greater; Opportunity for 
Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted regulations for the control of diesel particulate 
matter in the exhaust from in-use portable diesel-fueled compression-
ignition engines 50 horsepower and greater. CARB has requested that EPA 
issue a new authorization for the emission standards established by 
these regulations. This notice announces that EPA has tentatively 
scheduled a public hearing to consider California's In-Use Portable 
Diesel Equipment Airborne Toxic Control Measure authorization request 
and that EPA is now accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on February 24, 2011, at 9:30 a.m. EST. EPA will hold a hearing 
only if any party notifies EPA by February 17, 2011, expressing its 
interest in presenting oral testimony. By February 18, 2011, any person 
who plans to attend the hearing may call Robert Doyle at (202) 343-
9258, to learn if a hearing will be held or may check the following 
webpage for an update: http://www.epa.gov/otaq/cafr.htm.
    Parties wishing to present oral testimony at the public hearing 
should provide written notice to Robert Doyle at the e-mail address 
noted below. If EPA receives a request for a public hearing, that 
hearing will be held at 1310 L Street, NW., Washington, DC 20005.
    If EPA does not receive a request for a public hearing, then EPA 
will not hold a hearing, and instead consider CARB's request based on 
written submissions to the docket. Any party may submit written 
comments until March 24, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2011-0101, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2011-0101, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements

[[Page 7197]]

should be made for deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2011-0101. EPA's policy is that all 
comments we receive will be included in the public docket without 
change and may be made available online at http://www.regulations.gov, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address will automatically be captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2011-0101. 
Publicly available docket materials are available either electronically 
through http://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 
work 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 (e-mail) address for the Air and Radiation Docket 
is: a-and-r-Docket@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 http://www.regulations.gov 
website, enter EPA-HQ-OAR-2010-XXXX, 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 also maintains a 
webpage that contains general information on its review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices; the page can be accessed at 
http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor, 
Compliance and Innovative Strategies Division, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, 
DC 20460. Telephone: (202) 343-9258. Fax: (202) 343-2804. E-mail: 
doyle.robert@epa.gov.

SUPPLEMENTARY INFORMATION:

I. California's ATCM for In-Use Portable Diesel Engines 50 Horsepower 
and Greater

    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 brake-
horsepower (hp) and greater (portable engines).\1\ The authorization 
request covers four primary substantive requirements: (1) Starting 
January 1, 2010, all portable engines in the state must be certified to 
meet a Federal or California standard for newly manufactured nonroad 
engines, subject to specified exceptions; (2) Starting January 1, 2020, 
all portable engines in California must be either (a) certified to meet 
Tier 4 emission standards, (b) equipped with a properly functioning 
Level-3 verified technology,\2\ or (c) equipped with a combination of 
control strategies that have been verified together to achieve at least 
an 85% reduction in diesel particulate matter (PM) emissions, subject 
to specified exceptions; (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 non-road engines at the time the engine is either registered in the 
PERP or registered for a permit, subject to specified exceptions; 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), subject to specified exceptions.\3\
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    \1\ Portable engines are engines that may be moved easily from 
location to location. 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.
    \2\ Level 3 PM 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 In-Use 
Compliance Requirements for In-Use Strategies to Control Emissions 
from Diesel Engines,'' 13 California Code of Regulations (CCR) 
sections 2700-2710.
    \3\ The ATCM 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) and does not require an authorization.
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    Owners of in-use equipment will have options available to meet the 
CARB requirements. 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.

II. Clean Air Act Nonroad Engine and Vehicle 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) requires the Administrator, after notice and 
opportunity for public hearing, to authorize California to enforce 
standards and other requirements

[[Page 7198]]

relating to the control of emissions from new engines not listed under 
section 209(e)(1), if certain criteria are met. EPA has promulgated 
regulations implementing these provisions at 40 CFR part 1074. These 
regulations set forth the criteria that EPA must consider before 
granting California authorization to enforce its new nonroad emission 
standards.\4\
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    \4\ Title 40 of the Code of Federal Regulations, part 1074.105 
provides:
    (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.
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    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).\5\
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    \5\ See 59 FR 36969 (July 20, 1994).
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    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.

III. Procedures for Public Participation

    As stated above, EPA is offering the opportunity for a public 
hearing, and requesting written comment on issues relevant to a full 
authorization analysis. Specifically, we request 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.
    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until March 24, 2011. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record from the public hearing, if any, all relevant 
written submissions, and other information that she deems pertinent. 
All information will be available for inspection at the EPA Air Docket 
No. EPA-HQ-OAR-2011-0101.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' (CBI). 
If a person making comments wants EPA to base its decision on a 
submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that proprietary information 
is not inadvertently placed in the public docket, submissions 
containing such information should be sent directly to the contact 
person listed above and not to the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed, and according to the procedures set forth in 40 CFR 
Part 2. If no claim of confidentiality accompanies the submission when 
EPA receives it, EPA will make it available to the public without 
further notice to the person making comments.

    Dated: February 3, 2011.
Lori Stewart,
Acting Director, Office of Transportation and Air Quality, Office of 
Air and Radiation.
[FR Doc. 2011-2855 Filed 2-8-11; 8:45 am]
BILLING CODE 6560-50-P
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